Mental_Health_Act_1983

Mental Health Act 1983

The Mental Health Act 1983 (1983 c. 20) is an Act of the Parliament of the United Kingdom but applies only to people in England and Wales. It covers the reception, care and treatment of mentally disordered persons, the management of their property and other related matters. In particular, it provides the legislation by which people suffering from a mental disorder can be detained in hospital and have their disorder assessed or treated against their wishes, unofficially known as "sectioning". Its use is reviewed and regulated by an NHS Special Health Authority known as the Mental Health Act Commission (MHAC).

History

The Lunacy Act 1890 gave mental hospitals or "asylums" the power to detain "lunatics, idiots and persons of unsound mind". The Mental Deficiency Act 1913 increased these powers, establishing a Board of Control to monitor asylums. These laws were superseded after World War II by the Mental Health Act 1959.

This Act aimed to provide informal treatment for the majority of persons suffering from mental disorders, but to provide a legal framework such that such persons could, if necessary, be detained in hospital against their wishes. However, the 1959 Act did not provide clarity as to whether a legal order to detain a mentally disordered person in hospital also empowered the hospital to impose medical treatment against the person's wishes. It had become clear by the 1970s that a specific legal framework for medical treatments such as psychiatric medications, electroconvulsive therapy and psychosurgery was needed in order to balance the rights of detained persons with society as a whole.

The Mental Health Act 1983 came into force in the September of that year.

Layout of the act

The Act is divided into ten "parts":

  1. Application of the Act
  2. Compulsory admission to hospital and guardianship
  3. Patients concerned in criminal proceedings or under sentence
  4. Consent to treatment
  5. Mental Health Review Tribunal
  6. Removal and return of patients within the United Kingdom
  7. Management of property and affairs of patients
  8. Miscellaneous functions of Local Authorities and the Secretary of State
  9. Offences
  10. Miscellaneous and supplementary

Each of these ten parts are divided into "sections", which are numbered continuously throughout the Act. In total, there are 149 sections in the Act.

Definition of mental disorder

Please note this section will be significantly amended by Mental Health Act 2007 - see below

The term "mental disorder" is very loosely defined under the Act, in contrast to countries such as Australia and Canada. Under the Act, mental disorder is defined as "mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind". There are four distinct subcategories of mental disorder stipulated in Section 1 of the Act - mental illness, mental impairment, severe mental impairment and psychopathic disorder.

These categories are not well defined in the Act, indeed, mental illness is not defined at all. Mental impairment is defined as "a state of arrested or incomplete development of mind ... which includes significant impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned". Severe mental impairment has a similar definition but with the word "significant" replaced with "severe". Psychopathic disorder is defined as a "persistent disorder or disability of mind (whether or not including significant impairment of intelligence) resulting in abnormally aggressive or seriously irresponsible conduct".

These categories do not necessarily correspond to medical categories of mental disorder such as those outlined in ICD-10 or DSM-IV; the type of mental disorder afflicting a particular person is very much left up to the clinical judgement of the individual doctor. However, the category "mental illness" is thought by most psychiatrists to cover schizophrenia, anorexia nervosa, major depression, bipolar disorder and other similar illnesses, "(severe) mental impairment" to cover mental retardation (learning disability) and "psychopathic disorder" to cover the personality disorders.

There are very few exclusions to these definitions of mental disorder. The Act states that one cannot be suffering from a mental disorder "by reason only of promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs".

Professionals and persons involved

Please note this section will be significantly amended by Mental Health Act 2007 - see below

The Act involves specific professional roles by social workers and doctors as well as a specific role by a relative of the mentally disordered person.

An Approved Social Worker (ASW) is a social worker who has extensive knowledge and experience of working with people with mental disorders. They have received specific training relating to the Mental Health Act, usually lasting one year, and performs a pivotal role in the assessment and detention process.

A Section 12 Approved Doctor is a medically qualified doctor who has been recognised under section 12(2) of the Act. They have specific expertise in mental disorder and have additionally received training in the application of the Act. They are usually psychiatrists, although some are general practitioners (GPs) who have a special interest in psychiatry.

A Responsible Medical Officer (RMO) is a doctor who is responsible for the treatment of mentally disordered persons who are compulsorily detained under the Act. Within the National Health Service (NHS), he or she is almost exclusively a consultant psychiatrist, other than in rare situations in which a person is detained in a general hospital setting, such as a surgical ward.

A Nearest Relative is a relative of a mentally disordered person. There is a strict hierarchy of types of relationship that needs to be followed in order to determine a particular person's Nearest Relative: husband, wife, or civil partner; son or daughter; father or mother; brother or sister; grandparent; grandchild; uncle or aunt; nephew or niece; lastly, an unrelated person who resides with the mentally disordered person. Thus a person's Nearest Relative under the Act is not necessarily their "next of kin". A mentally disordered person is not usually able to choose their Nearest Relative but under some circumstances they can apply to a County Court to have a Nearest Relative replaced. In practice more applications are made by Social Services Departments. The Nearest Relative is important as he or she has the power to discharge the mentally disordered person from some sections of the Act.

Mental Health Act Managers represent the management of the NHS Trust with responsibility for a detained patient. These are usually non-executive members of the board of the relevant National Health Service Trust and appointed lay 'Associate Managers'. Hospital Managers will hear appeals from patients against their detention and review renewals of lengthy detentions. Cases are heard in similar settings to those heard by the Mental Health Review Tribunal (see below).

Mental Health Review Tribunals (MHRTs) hear appeals against detention under the Act. Their members are appointed by the Lord Chancellor and include a doctor, a lawyer and a lay person (i.e. neither a doctor nor a lawyer). Detained persons have the right to be represented at MHRTs by a solicitor. Although discharge from hospital as a result of an MHRT hearing is the exception to the rule, the MHRT will often make important recommendations regarding the ongoing care of the detained person.

Under amendments to the Act passed in July 2007, the Responsible Medical Officer will be replaced by the Responsible Clinician and the Approved Social Worker will be replaced by the Approved Mental Health Professional.

Part II - the civil sections

Part II of the Act applies to any mentally disordered person who is not subject to the Criminal Justice System. The vast majority of persons detained in psychiatric hospitals in the United Kingdom are detained under one of the civil sections of the Act.

These sections are implemented following an assessment of the person suspected to be suffering from a mental disorder. These assessments can be performed by various professional groups, depending upon the particular section of the Act being considered. These professional groups include ASWs (see above), Section 12 approved doctors (see above), other doctors, registered mental nurses (RMNs) and police officers. The civil sections are outlined below.

Section 2

Section 2 is an assessment order and lasts up to 28 days; it cannot be renewed. It can be instituted following a "Mental Health Act assessment" by two doctors and an ASW. At least one of these doctors must be a Section 12 approved doctor. The other must either have had previous acquaintance with the person under assessment, or also be a Section 12 approved doctor. This latter rule can be broken in an emergency situation where the person is not known to any available doctors and two Section 12 approved doctors cannot be found. In any case, the two doctors must not be employed by the same organisation to ensure independence. Commonly, in order to satisfy this requirement, a psychiatrist will perform a joint assessment with a general practitioner (GP). A Mental Health Act assessment can take place anywhere, but commonly occurs in a hospital, at a police station, or in a person’s home.

If the two doctors agree that the person is suffering mental disorder, and that this is severe enough that, despite the person's refusal to go to hospital, he or she ought to be detained in hospital in the interest of the person's own health, their safety, or for the protection of others, they complete a medical recommendation form and give this to the ASW. The doctors do not have to stipulate which subcategory of mental disorder the person is suffering from. If the ASW agrees that there is no viable alternative to detaining the person in hospital, he or she will then complete an application form requesting that the hospital managers detain the person. The person will then be transported to hospital and the period of assessment begins. Treatment, such as medication, can be given against the person’s wishes under Section 2, as observation of response to treatment constitutes part of the assessment process.

Section 3

Please note this section will be significantly amended by Mental Health Act 2007 - see below

Section 3 is a treatment order and can initially last up to six months; if renewed, the next order lasts up to six months and each subsequent order lasts up to one year. It is instituted in the same manner as Section 2, following an assessment by two doctors and an ASW. One major difference, however, is that for Section 3, the doctors must state which subcategory of mental disorder the person is suffering from i.e. mental illness, mental impairment, severe mental impairment or psychopathic disorder. Another difference is that a person cannot be detained under Section 3 if his or her Nearest Relative objects to the detention.

Most treatments for mental disorder can be given under Section 3, including injections of psychotropic medication such as antipsychotics. However, after three months of detention, either the person has to consent to their treatment or an independent doctor has to give a second opinion to confirm that the treatment being given remains in the person’s best interests. A similar safeguard is used for electroconvulsive therapy (ECT), although the RMO can authorise two ECT treatments in an emergency situation for persons detained under Section 3.

Absence or “leave” from hospital can be granted by the RMO for patients detained under either Section 2 or Section 3. The RMO will also ultimately be responsible for discharging patients from either Section 2 or Section 3. After a Section 3, a formal discharge planning meeting must be held, as stipulated in Section 117 of the Act. This makes informal plans for after-care following discharge.

Section 4

Section 4 is an emergency order that lasts up to 72 hours. It is implemented by just one doctor and an ASW, in an emergency in which there is not time to summon a second suitable doctor in order to implement a Section 2 or Section 3. Once in hospital, a further medical recommendation from a second doctor would convert the order from a Section 4 to a Section 2. Section 4 is not commonly used.

Section 5

Section 5(2) is a doctor’s holding power. It can only be used on persons who are informally (willingly) admitted to a hospital, but who then change their mind and wish to leave. It can be implemented following a (usually brief) assessment by the RMO or his deputy, which, in effect, means any hospital doctor, including psychiatrists but also those based on medical or surgical wards. It lasts up to 72 hours, during which time a further assessment may result in either discharge from the Section or detention under Section 2 or Section 3.

Section 5(4) is a nurse's holding power. It is a similar holding power that can be applied to the same group of patients as those that may be detained under Section 5(2) (see above). It is implemented by a First or Second Level Mental Health Nurse. Section 5(4) lasts up to 6 hours and is often converted to Section 5(2) upon assessment by a doctor. This is usually the on-call Senior House Officer (SHO) who acts on behalf of the patient's Consultant Psychiatrist.

Maximum Holding Time Under s. 5(4) & s. 5(2)

Note that time spent by a patient being detained under s. 5(4) is included in the 72 hours of any subsequent s. 5(2); thus, a patient who has been detained first under s. 5(4), and then is further detained under s. 5(2) can only be held in hospital for a maximum of 72 hours, not 78 hours. In addition, s. 5(4) ends at the time the patient is seen by the doctor assessing the patient under s. 5(2), irrespective of the outcome of the doctor's assessment.

The Mental Health Act Commission consider it to be extremely poor practice to allow a s. 5(2) to simply "lapse". There is a clear duty on the part of the patient's Consultant Psychiatrist to make a decision as to whether a further section (s. 2 or s. 3) should be implememnted, or whether the patient should be regraded to "Informal" legal status.

Sections 135 and 136

Section 135 is a magistrates’ order. It can be applied for by an ASW in the best interests of a person who is thought to be mentally disordered, but who is refusing to allow mental health professionals into their residence for the purposes of a Mental Health Act assessment. Section 135 gives police officers the right to enter the property and to take the person to a “Place of Safety”, which is locally defined and is usually either a police station or a psychiatric hospital ward.

Section 136 is a similar order that allows a police officer to take a person whom they consider to be mentally disordered to a “Place of Safety” (see above). This only applies to a person found in a public place. Once a person subject to Section 135 or Section 136 is at a Place of Safety, they are further assessed and, in some cases, a Section 2 or Section 3 implemented.

Part III - the criminal sections

There are various criminal sections of the Act that apply to sentenced prisoners and persons subject to proceedings of the Criminal Justice System. Although they are invariably implemented by a court, often upon the recommendations of one or more psychiatrists, some of these sections largely mirror the civil sections of the Act.

Sections 35 and 36

Section 35 and Section 36 are similar in their powers to Section 2 and Section 3 (see above) respectively, but are used for persons awaiting trial for a serious crime and provide courts with an alternative to remanding a mentally disordered person in prison. The order for Section 35 can be made by a Crown Court or Magistrates' Court, whilst Section 36 can be enacted only by a Crown Court. Courts can enact either of these sections on the medical recommendation of one approved doctor. Both these sections are now rarely used in practice.

Sections 37, 38 and 41

Section 37 is a treatment order, similar in many regards to Section 3 (see above), and is fairly frequently used. It is applied to persons recently convicted of a serious crime, which is punishable by imprisonment. Thus it represents an alternative to a mentally disordered person being punished by imprisonment or otherwise. It is enacted by a Crown Court or Magistrates' Court on the recommendation of two approved doctors, both of whom must agree on the subcategory of mental disorder the person is suffering from. However, the court is able to exercise discretion in this regard and can impose a prison sentence despite medical recommendations for Section 37.

A person detained under Section 37 can appeal to the Mental Health Review Tribunal after a period of six months; if he or she is no longer suffering from symptoms of mental disorder, the person can be discharged by the Tribunal, even if there is a strong possibility that the person might relapse and re-offend. Furthermore, a person on Section 37 alone, who may have been convicted of a serious and violent crime, can be discharged in the community at any time by one doctor, his or her Responsible Medical Officer.

For these reasons, persons who either are deemed by the court to pose a particularly high risk to other people if released, have a pronounced history of dangerous behaviour, or have committed a particularly serious offence, usually have Section 41 used in conjunction with Section 37. Section 41 imposes “restrictions” upon the terms of Section 37. In summary, this means that the Home Office and, ultimately, the Home Secretary, rather than the RMO, decides when the person can leave hospital, either temporarily (“leave”) or permanently (“discharge”). Indeed, most persons are ultimately given a "conditional discharge", which sets a statutory framework for psychiatric follow-up in the community upon release and provides for recall into hospital if, for instance, a person disengages from mental health services.

Only a Crown Court can impose Section 41, but a judge can do so without a doctor's recommendation. Although persons on Section 41 can appeal against their detention to the Mental Health Review Tribunal, their cases are heard by a Special Tribunal, chaired by a High Court judge. Section 41 can be imposed with a time limit, although this provision is rarely used.

Section 38 is an interim order, used in similar circumstances to Section 37, when it is likely, but not wholly clear, that a Section 37 will be appropriate.

Sections 47, 48 and 49

It is noteworthy that the Act only provides for enforced treatment of mental disorder in a hospital. As a prison is not defined as a "hospital" by the Act, no prisoner can be treated against his or her wishes under the Act in prison, even in a prison healthcare wing. Instead, Sections 47 and 48 provide for prisoners to be transferred to a hospital for treatment of a mental disorder. Section 47 applies to sentenced prisoners, whilst Section 48 applies to those on remand and those convicted but awaiting sentence; it provides for temporary treatment out of prison. Section 48 can be used only for prisoners in need of urgent treatment for mental illness or severe mental impairment, whilst Section 47 can be used to treat any category of mental disorder. The Home Office is required to approve applications for these sections and decides what level of security in hospital is necessary for a particular prisoner.

Section 49 provides for “restrictions” to Section 47, in the same way that Section 41 provides for “restrictions” to Section 37 (see above).

Physical illness

The Mental Health Act 1983 provides the legal framework for the assessment and/or treatment of mental disorders. It does not provide for the assessment or treatment of physical illness. There has been substantial case law to confirm this interpretation. Thus, a person who has schizophrenia as well as kidney failure requiring dialysis, but who is refusing treatment, cannot be dialysed against his or her wishes under the Mental Health Act 1983. This stands even if it is symptoms of schizophrenia inform the person’s wishes about dialysis. In such a case, however, it might be deemed that the person lacks the mental capacity to consent to the treatment of the physical illness, in this case treatment can be given in good faith and in the person’s best interests, under common law.

Another common example of this boundary in practice is a person who has a short-lived confused state as a result of a physical illness such as an infection or a heart attack, but who is refusing or interfering with the assessment or treatment of the underlying condition. Although it is technically legal to detain such a person under Section 2 of the Mental Health Act, this is rarely carried out in practice. This is because the Act does not give doctors and nurses authority to assess or treat the physical illness.

An apparent exception to this rule is anorexia nervosa. Enforced re-feeding of severely emaciated people with anorexia nervosa is allowed under the Act, because anorexia nervosa is classed as a mental illness and re-feeding is seen to constitute the first stage in treatment for severe cases of that mental illness.

Amendments and refinements

Mental Health Act 2007

The Act will be amended by the Mental Health Act 2007, with significant changes which include:

  • Introduction of Supervised Community Treatment. This new power replaces supervised discharge with a power to return the patient to hospital if the medication regime is not being complied with in the community.
  • Redefining professional roles broadening the number of professionals who are responsible for the treatment of patients without their consent.
  • Nearest relative: make it possible for some patients to appoint a civil partner as nearest relative.
  • Definition of mental disorder: introduce a new definition of mental disorder throughout the Act abolishing previous categories
  • Criteria for detention: introduce a requirement that someone cannot be detained for treatment unless appropriate treatment is available and remove the treatability test.
  • Mental Health Review Tribunal (MHRT): improve patient safeguards by taking an order-making power which will allow the current time limit to be varied and for automatic referral by hospital managers to the MHRT.
  • Electroconvulsive Therapy may not be given to a patient who has capacity to refuse consent to it, and may only be given to an incapacitated patient where it does not conflict with any advance directive, decision of a donee or deputy or decision of the Court of Protection.

There were concerns amongst mental health professionals that the legislation was based more upon tabloid stories on the danger presented by mentally disordered people (especially the Michael Stone case), than on the practical shortcomings of the current Act. Critics of the Bill asserted that it would mean mental health professionals being "suborned as agents of social control" (Mullen, 2005). Supporters of more restrictive legislation insisted that dangerous people must be detained in hospital by doctors in their own interests and for public protection, regardless of whether their mental disorder can be treated (Maden, 2005).

Criticisms

These sections will be significantly amended by the Mental Health Act 2007 (see above)

The main thrust of the Act provides the power to detain a person in hospital to treat their mental disorder. However, there is currently no provision allowing compulsory treatment to take place within the community of the mentally disordered person. The psychiatric profession in the United Kingdom is split over whether future legislation should allow for such treatment (Crawford et al, 2000). Service user groups are overwhelmingly opposed to such legislation in the future (Mind, 2004), although a 2004 survey of mental health service users in London found that the majority would prefer to be treated against their wishes in their home rather than in hospital, and that half felt that compulsory treatment in the community would be justified (Crawford et al, 2004).

Under Sections 7 and 8 of the Act, “guardianship” allows for a mentally disordered person to be required to reside at a specific address, to attend a specific clinic on a regular basis for medical treatment, or to attend various other stipulated venues such as workplaces or educational establishments. However, most mental health professionals view guardianship as a paper tiger, in that there is no power to actually enforce the person to comply with these requirements. Furthermore, although guardianship can require a person to attend a clinic for treatment, there is no requirement for the person to accept that treatment.

Section 25, known as “supervised discharge”, can be applied to a person who is discharged from Section 3 of the Act. It carries requirements similar to those set out above in relation to Sections 7 and 8. Section 25 can result in immediate re-detention in hospital if the conditions listed are broken, but cannot enforce community treatment.

It should be recognised when discussing these limitations that the Act was drafted at a time when mental health care was focused in institutions rather than care in the community. However, since the 1980s, there has been a huge shift in emphasis of mental health care away from inpatient treatment.

Repeals and extent

This Act did not repeal any other Acts. Schedule 6 lists 28 other enactments which had individual sections repealed.

England and Wales The entire Act applies to England and Wales.

Scotland Only the parts of the Act defined in s.146 have effect in Scotland.

Northern Ireland Only the parts of the Act defined in s.147 have effect in Northern Ireland.

Notes

References

Atkinson, J. (2006) Private and Public Protection: Civil Mental Health Legislation, Edinburgh, Dunedin Academic Press

Crawford, M.J., Hopkins, W., Henderson, C. (2000) "Concerns over reform of the Mental Health Act", British Journal of Psychiatry, vol 177 p 563.

Crawford, M.J., Gibbon, R., Ellis, E., Waters, H. (2004) "In hospital, at home, or not at all", Psychiatric Bulletin, vol 28 pp 360-363.

Maden, A. (2005) "The point of principles", Psychiatric Bulletin vol 29 pp 250-251.

Mind (2004) Are you listening?, London, Mind

Mullen, P.E. (2005) "Facing up to our responsibilities", Psychiatric Bulletin, vol 29 pp 248-249.

Zigmond, A. (2004) “A new Mental Health Act for England and Wales”, Advances in Psychiatric Treatment, vol 10 pp 161-163.

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