The Mental Health Act (1983) | Insanity and the Law
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Though most individuals with a mental health problem can be treated entirely outside of hospital, it is possible for mental illness to become severe to the point that an individual is vulnerable and at risk of harm. Illnesses such as schizophrenia, bipolar disorder and severe depression can make individuals liable to deliberate self harm or self-neglect and leave them open to physical, emotional or monetary exploitation by others. It is worth noting that while some mentally disordered individuals pose a risk to the public, they are few in number.
An individual may lack insight into the reality of their condition and may therefore refuse admission to hospital for treatment. In England and Wales1, the Mental Health Act (1983) allows appropriately qualified medical personnel, social workers and police officers to detain an individual for assessment and treatment of a mental health disorder. The various parts of the Act, known as 'sections', specify the different forms of detention that are available legally, and the process of detention is commonly known as 'sectioning'2. The 1983 Act was significantly altered by the Mental Health Act (2007) and this Entry attempts to cover both the original and amended versions of the 1983 Act.
The treatment of mental illness has a long history that would be difficult to cover while staying relevant to the 1983 Act. One of the major turning points for mental health was the publication of the Percy Report in 1957. This stated that mental illnesses should be treated in a similar manner to physical illnesses, with a similar form of care. Two years later, the Mental Health Act (1959) was passed. The 1959 Act allowed admissions to mental health units to be as informal as those to medical wards, and also made local councils responsible for the care of mentally ill individuals outside of hospital. These changes led to an increase in the number of psychiatry outpatients from none at all to many thousands within a decade.
The following years saw a growing movement to break the silence regarding mental illness and debates sprung up with regard to the treatment of patients. The Mental Health Act (1983) expanded greatly on the matters covered in the 1959 Act, detailing with whether hospitals were entitled to treat patients against their will and improving the scope for after-care once a patient had been discharged. The controversial Mental Health Act (2007) expanded the 1983 Act, making it possible to conditionally discharge a patient on a section and order them to receive treatment in the community. The 2007 Act also widened the range of professionals able to perform certain roles, allowing 'approved mental health professionals' to fulfil the roles previously played only by social workers, and allowing members of the team other than doctors to fill out forms regarding inpatients.
|Definitions of Mental Illness|
Part I of the 1983 Act originally detailed what might be considered to be a mental illness for the purposes of the Act – it included four specific definitions:
'Mental disorder' of such a degree or nature that it warrants the detention of the individual. Exactly what this consists of is left as a 'matter for clinical judgement'.
'Mental impairment' due to a developmental disorder of the sort that impairs social functioning intelligence and which results in 'abnormally aggressive or seriously irresponsible conduct'.
'Severe mental impairment', similar to mental impairment above.
'Psychopathic disorder', whereby a persistent mental disorder again produces 'abnormally aggressive or seriously irresponsible conduct'.
It is worth noting that these were legal definitions and that most mental health inpatients were mentally ill and not 'psychopathic'. Following the 2007 Act, the above definitions have been replaced with the instruction that 'mental disorder means any disorder or disability of the mind'. This vague definition comes with caveats that prevent certain sections from being used in the case of a learning disability 'unless that disability is associated with abnormally aggressive or seriously irresponsible conduct'.
In the 1983 Act, a person with a mental impairment could only be sectioned and admitted for treatment if 'such treatment is likely to alleviate or prevent a deterioration of his condition'. This was repealed by the 2007 Act and, along with the aforementioned removal of 'mental impairment' as a separate reason for admission, this allows individuals with personality disorders3 to be sectioned provided that 'appropriate medical treatment is available'. There is no specification that this treatment should be effective, so individuals deemed to have a personality disorder could in theory be sectioned and provided with an 'appropriate treatment' such as nursing care. These changes are, of course, a contentious matter.
Another important disclaimer in the 1983 Act stated that any definition of mental disorder should not be applied on the sole basis of 'promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs.' The 2007 Act repealed this statement, replacing it with one only covering alcohol and drugs.
With Part I of the Act defining mental illness, sections 2 - 34 constitute Part II of the Act. Among other things, these sections allow for an individual with a mental disorder to be compulsorily admitted to hospital. Section 12 is of particular importance as it demands that one of the doctors involved in a Section 2 or Section 3 must have sufficient experience in the diagnosis and treatment of mental disorders. Section 12 approved doctors generally have passed the membership examination of the Royal College of Psychiatrists or else have specialised in psychiatry for at least three years.
Section 2 allows for an individual to be admitted for assessment, and is used when the individual is not previously known to mental health services. This mandatory detention lasts for 28 days, during which treatment can be given as part of the assessment. Section 3 is used when a diagnosis and the treatment required have been previously established, and is used both for returning patients and new patients once they have been assessed under a Section 2. A Section 3 lasts for six months, after which the patient must be re-assessed. The patient can be treated without their consent for up to three months – after this, a second opinion is required (see Sections 57 - 62 below).
A Section 2 or 3 is begun by either an approved mental health professional4 or the person's nearest relative5. They must have seen the individual in the last 14 days, and must apply for an assessment of the patient by two doctors, one of whom must be Section 12 approved. The Act recommends that one of the doctors is familiar with the individual being sectioned, and so it is usual for the other doctor to be the patient's GP. Upon being sectioned, the individual is told their rights and invited to apply for a review of their case by a mental health tribunal, which can discharge patients following a hearing.
Individuals can also be discharged from a section by the consultant responsible for their care, by the hospital management, or by the individual's nearest relative. In the latter case, 72 hours' written notice is required, and the consultant may issue a 'barring certificate' that prevents a patient from being discharged if they would be at risk of harming themselves or others.
If there is not enough time to arrange a Section 2, an emergency admission for assessment can be made under Section 4. This section requires both a doctor and either an approved mental health professional or the individual's nearest relative and lasts for 72 hours, during which it can be converted to a Section 2 following assessment of the individual by a second doctor.
Section 5 allows for patients already admitted to a hospital to be sectioned. Subsection 5(2) states that any inpatient can be detained for 72 hours in order to allow time for a Section 2 or 3 to be completed. Meanwhile, subsection 5(4) allows a registered nurse to urgently detain a patient being treated for a mental disorder for up to six hours, provided it is 'necessary for his health or safety or for the protection of others for him to be immediately restrained from leaving the hospital'.
Whereas sections 2, 3, 4 and 5 allow individuals to be detained against their will, the rest of Part II (sections 6 - 34) deals with associated matters, the most important of which are described here.
Sections 7 - 10 allow for either an adult or the local social services to be given guardianship of a patient over the age of 16. This can happen provided that two doctors recommend the guardianship on the basis that the degree of mental illness warrants it and that it is necessary for the welfare of the patient or of others. The guardian can require the patient to live at a certain place, to allow doctors and social workers to visit, and to attend places for 'medical treatment, occupation, education or training'.
Section 17 allows a doctor to grant leave from hospital to a patient detained under the Mental Health Act. The amount of leave and the time at which it takes place can be stated, and the doctor can make the leave conditional on the patient being escorted by a member of staff. Section 17 leave was greatly expanded upon by the 2007 Act, which introduced community treatment orders. Section 17A allows for a patient's treatment to continue under a Section 3 while the patient is not being detained – that is to say, they can be ordered to take medication while outside of hospital. A Section 17A lasts up to six months before it must be renewed, with the Section 3 effectively being on hold in the meantime. Patients being discharged under a community treatment order can be recalled to hospital if it is deemed necessary – for instance, if a patient stops taking their medication and becomes unwell again. There is no requirement for a fresh assessment when a patient is recalled – their Section 3 simply starts from where it left off.
|Sections 35, 37, 41 and 42|
Sections 35 - 55 make up Part III of the Act, which deals with individuals undergoing criminal proceedings and those who are under sentence. There are three sections that allow for such persons to be detained in a hospital for assessment or treatment – in each case, one of the doctors providing evidence must be Section 12 approved.
Section 35 allows a Crown or Magistrates' Court to place a person on remand to hospital for assessment of mental illness. This requires the evidence of one doctor and initially lasts for 28 days but can be extended to 12 weeks. Section 36 similarly allows for a remand to hospital for treatment, but requires the evidence of two doctors and can only be applied for at a Crown Court.
Section 37 is similar to Section 3 in that it allows for an individual convicted of a punishable offence to be detained and treated for six months following evidence from two doctors. It can be applied for at a Crown or Magistrates' Court, and can be extended if required. A Section 41 can be applied on top of this so that the individual may only be granted leave or discharge following Home Office approval – this section can only be applied for at a Crown Court and requires the evidence of one doctor. Section 42 allows the Secretary of State control over the discharge and recall of these individuals.
Sections 56 - 64 make up Part IV of the Act, which deals with consent to treatment. One important implication of these sections is that once patients have been treated against their will under Section 3 or 37 for more than three months, doctors must gain their consent or gain a second opinion depending upon the type of treatment involved. Section 58 must be used to continue giving a patient medication, and requires either consent or, if the patient lacks the capacity to consent, a second opinion.
On the other hand, Section 58A is required for patients who are to receive electroconvulsive therapy, and states that the patient must consent or, in the case of an incapacitated patient, there must be no advance directive against the treatment. This section was added by the 2007 Act.
Section 57 is used for treatment that requires both the patient's consent and a second opinion, and includes 'any surgical operation for destroying brain tissue or for destroying the functioning of brain tissue'.
Section 62 states that sections 57 and 58 do not apply if treatment is required to save the patient's life. It can also be used if the treatment will prevent serious deterioration or suffering, or dangerous or violent behaviour, provided that the treatment is not irreversible. Among other things, this section allows for the emergency sedation of patients against their will provided that it uses 'the minimum interference necessary' – a patient would therefore be asked to take an oral sedative and would only be given the drugs by injection if absolutely necessary. Also, electroconvulsive therapy can be given as emergency treatment if a patient has stopped eating and drinking due to a depressive stupor.
Section 63 states that consent is not required for medical treatments given for mental disorders. This refers to such things as feeding an individual with anorexia – though the treatment is not a psychiatric one, it is recognised as greatly improving the individual's psychiatric symptoms. Note, however, that the Mental Health Act does not allow for treatment of non-psychiatric illness, such as antibiotics for an infection – consent for these treatments must be sought.
The rest of the Act deals with various matters such as tribunals, the safeguarding of patients' property, and the movement of patients to or from hospitals in parts of the UK not covered by the Act. There are also sections that detail offences of neglect of patients, forgery of documents, knowingly assisting patients in escaping, and obstructing access to a patient without reasonable cause. Sections 135 and 136 are hidden towards the end of the Act in Part X (Miscellaneous and Supplementary), but are important as they allow the police to help with the sectioning of mentally disordered individuals.
Section 135 allows an approved mental health professional to apply to a magistrate for a warrant to have the police enter premises and remove a mentally disordered individual to a 'place of safety' with a view to sectioning the individual. It also allows for a police constable to apply for a warrant to enter premises where an existing patient is thought to be. In the former case, a place of safety may be a police station, hospital, care home or other suitable place, and the individual can be held for up to 72 hours.
Section 136 allows a police constable to remove an apparently mentally disordered individual from a public place to a place of safety, and to hold the individual there for up to 72 hours so that the individual may be assessed by a doctor and interviewed by a social worker.
Mr P, a 24-year-old supermarket worker, has been acting strangely over the past month or so, becoming increasingly withdrawn and suspicious of other people. Over the last couple of weeks, he has started to claim that the Mayor of London is using the BT Tower to put thoughts into his head and control his movements, and he is now threatening to kill himself. His flatmate calls the local GP, who quite sensibly brings a social worker with him to visit Mr P. A diagnosis of paranoid schizophrenia6 is made, Mr P is placed under a Section 4 and, with the help of the local police, he is taken to a mental health unit.
Having been admitted and seen by a Section 12 approved psychiatrist, Mr P is placed under a Section 2 and treatment with an antipsychotic drug is begun. After a week, Mr P's symptoms begin to improve and the diagnosis of schizophrenia is confirmed. However, his recovery is slow, and he is placed on a Section 3 so that he can continue to be detained beyond the 28 days allowed by a Section 27.
After two months of treatment, Mr P is having leave under Section 17 every other night and has recovered enough to be discharged. However, the psychiatrist has concerns that Mr P will not take his medication once in the community, and uses a Section 17A to place Mr P on a conditional discharge, during which he is ordered to take the antipsychotic drug. Mr P complies, and the community treatment order lapses six months after the conditional discharge. Had he not complied and his symptoms worsened again, Mr P would have been recalled to hospital. Mr P continues to take the antipsychotic and makes a good recovery, with after-care continuing to be provided by the local Community Mental Health Team.
If you must know, the final section of the Act is Section 149, which allows for the extension of the Mental Health Act to the Scilly Isles.