22 Mental health legislation

In the UK there are different legal systems for England and Wales, Scotland and Northern Ireland, although they have developed in parallel. UK mental health legislation covers more than the compulsory detention of patients, although it is this that is usually concentrated on in descriptions of the Acts. In general, compulsory hospitalization depends not only on a diagnosis of mental disorder within the meaning of the Act in question, but also its necessity for the patient’s health, safety and/or for the protection of others.

Mental Health Act 1983

The Mental Health Act 1983, which replaced the Mental Health Act 1959, remains the basis of current mental health law in England and Wales, but was substantially amended by the Mental Health Act 2007.

Mental Health Act 2007: an act amending the Mental Health Act 1983

The purpose of the Mental Health Act 2007 was to bring mental health legislation into line with service provision, to strengthen patient safeguards and tackle human rights incompatibilities.

Definition of mental disorder

The previous four categories of mental disorder (mental illness, psychopathic disorder, mental impairment and severe mental impairment) are replaced by one: mental disorder. Mental disorder means any disorder or disability of the mind. Exclusions for dependence on alcohol or drugs are retained. If a patient has learning disability, however, this must also be associated with abnormally aggressive or seriously irresponsible conduct if long-term sections are used.

Detention criteria

These are that an individual should have a mental disorder (mental illness, psychopathic disorder, mental impairment and severe mental impairment) of a nature or degree necessary for a patient’s health or safety or the protection of others. Also, appropriate treatment must be available for longer term sections. The previous treatability test is removed.

Medical treatment

New definition includes a broader range of treatments and applies to manifestations of the disorder not just the disorder itself. The phrase ‘under medical supervision’ has been removed.

Appropriate treatment is treatment that is appropriate in the person’s case, taking account of the nature and degree of mental disorder and/or other circumstances of the case.

Professional roles

The role of Approved Social Worker (ASW) is replaced by Approved Mental Health Professional (AMHP). This role is open not only to social workers, but also to nurses, OTs and psychologists. AMHPs are approved by the local social services authority who also provide training for this role.

The term Responsible Medical Officer (RMO) is replaced by Responsible Clinician (RC), who may also be a psychologist.

Renewing detention

This is no longer solely the task of the RC. Another professional person concerned with the patient must agree that the renewal conditions are met.

Nearest relative

A patient now has the right to make an application to displace their nearest relative, who may also be displaced by a County Court when there are reasonable grounds to do so. This overcomes the risk of the technical nearest relative being an abuser of the patient. Nearest relative also now includes civil partners.

Supervised Community Treatment (SCT)

This replaces Supervised Discharge and is now also referred to as a Community Treatment Order (CTO). This allows the patient to be under ‘compulsion’ in the community. However, before such an order can be made, the patient must have been detained in hospital (sections 3, 37, 47). The Order is made by the RC and AMHP. It is renewable after six months, then a further six months, then annually. However, this Order does not allow forcible treatment outside hospital. The RC can recall a patient for up to 72 hours. The RC and AMHP, if agreed, can revoke a CTO, which re-starts the previous Order for its full duration, e.g. a further section 3. Section 17 leave from hospital is still available but the RC must consider a CTO if leave is greater than seven days and document the reasons for this.

Mental Health Review Tribunals (MHRTs)

Time is reduced before a case has to be referred to the MHRT. An annual referral is required for those under age 18.

Age-appropriate services

From April 2010 hospital managers must consult Child and Adolescent Mental Health Services (CAMHS) specialists when detaining under-18s and ensure that such individuals are admitted to a suitable environment. Since January 2008, parental authority is no longer sufficient to allow admission of 16- or 17-year-olds as an informal patient. The Mental Health Act 1983 must be used. There are also more safeguards for the use of electroconvulsive therapy (ECT) for such individuals.

Advocacy

There is a new role for an Independent Mental Health Advocate (IMHA) for which formal training is now required. Hospital managers must ensure advocacy services are available. Advocates have the right to meet with patients in private, meet with professionals and access health records with the patient’s consent.

Consent to treatment including for ECT

For medication, arrangements are largely unchanged. However, for those being treated under an SCT, the patient’s consent is required, as is a Second Opinion Appointed Doctor (SOAD) within a month. If a patient lacks the capacity to consent, others can authorize.

No ECT can be administered, except in an emergency, if a patient has capacity and refuses. Patients under 18 must have consent and SOAD authorization. No ECT may be administered, unless in an emergency, if a patient lacks capacity but has a valid Advance Decision (AD) refusing ECT or has an attorney who refuses ECT.

Provisions for mentally abnormal offenders

The new definition of mental disorder is now more wide ranging, including sections 48, 36 and 45A now being applicable to patients with all forms of mental disorder. Restriction Orders must be indefinite, not time-limited as was possible previously. There are new provisions for sharing certain information with victims, extending this beyond those of the Domestic Violence, Crimes and Victims Act 2004.

Revised Code of Practice

This sets out five guiding principles to inform decisions under the Act, i.e. the principles of purpose, least restrictive alternative, respect, participation and effectiveness, efficiency and equity.

Mental Health Review Tribunals (MHRT)

• Independent bodies consisting of doctor, lawyer and lay person whose responsibility is to consider the justification for continued detention under the 1983 Mental Health Act.

• Chairman is a lawyer, and in the case of restricted patients is a judge.

• Patients are allowed legal aid to assist in representation, e.g. private psychiatric reports can be commissioned.

• Can order discharge or delayed discharge, and recommend (not order) transfer to another hospital or leave of absence.

• Can also order discharge or conditional discharge (i.e. with conditions such as place of residence) or deferred conditional discharge of a Section 41 restricted patient.

• Can reclassify type of mental disorder.

• See eligibility for hearings for civil and forensic Orders in Tables 22.1 and 22.2.

Table 22.1 Civil treatment orders under Mental Health Act 1983

Table 22.2 Forensic treatment orders for mentally abnormal offenders

Patients on a 72-hour detention order have no MHRT rights, but can appeal against detention to hospital managers. There are no MHRTs in Scotland, but there is a Mental Welfare Commission, which safeguards the rights of both voluntary and detained patients and has the power to discharge patients. Since the Tribunals, Courts and Enforcement Act 2007, MHRTs in England and Wales are now technically First Tier Tribunals (Health, Education and Social Care Chamber) for Mental Health and there is an Upper Chamber for Appeals.

Care Quality Commission (Previously Mental Health Act Commission)

This is an independent body of part-time members (doctors, nurses, psychologists, social workers, lawyers and laypeople).

• Provides approved doctors to give second opinions on consent to treatment.

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