Published: Fri, 12 Oct 2018
Mental Health Act 1983
Why was it introduced (political/sociological context)?
The Mental Health Act 1983 covers the reception, care and treatment of people in England and Wales who suffer from mental illnesses. Specifically, it provides the statutory framework under which individuals can be lawfully detained in hospital, or in police custody, and have their mental illness assessed and treated without their consent. Compulsory detention of those considered to be ‘insane’ had been conducted for centuries in England and Wales, allowing individuals to be forcibly apprehended and detained in asylums and poorhouses. Following the return of ‘shell shocked’ soldiers from World War I, the Mental Treatment Act 1930 was passed with the intention of reducing the stigma which had previously been attached to those suffering from mental illnesses. The Mental Health Act 1959 aimed to provide a more informal approach to treating patients with mental disorders. This Act emphasised voluntary rather than compulsory attendance and admission to hospital, short term rather than permanent detention, whilst at the same time providing legislation under which people could, if necessary, be detained in hospital without their consent. The 1959 Act was considered to provide insufficient clarity as to whether a legal order to detain a person suffering from a mental disorder also empowered the hospital to treat the patient without her consent. The Mental Health Act 1983 attempted to offer a framework with more legal safeguards for those detained, and to balance their rights against the interests of protecting society as a whole.
What was the aim of the Act (legal context)?
The 1983 Act imported a somewhat loose definition of mental illness, defining it as ‘any disorder or disability of the mind’ in s1. The Act provides several routes to admission for treatment of mental health illnesses. S. 131 provides that patients requiring treatment for a mental disorder may be admitted voluntarily and informally. This has the advantage of the cooperation of the patient, rendering it less likely that the relationship with the doctor will be compromised and more likely that the patient will cooperate with the treatment plan.
The Actprovides for the involuntary admission of patients for assessment under s2 and for their treatment without their consent under s3. Compulsory assessment may be authorised where the mental disorder is of a nature or degree which warrants detention in hospital, and it is in the interests of the patient’s own health and safety, or for the protection of others that he is so detained. The assessment order can last up to 28 days, and can be instituted by two doctors and an approved mental health professional.
S. 3 provides for treatment orders to be made allowing treatment to be administered to an individual without her consent, and these orders can initially last for up to 6 months. They can be renewed for a further six months, and then each subsequent order lasts up to one year with the further possibility of annual renewal. Two doctors and an approved mental health professional must institute the order, but in contrast to an order made under s. 2, the doctors must be clear about both the diagnosis and the treatment plan. Following three months of compulsory admission, the patient must either consent to the treatment or an independent doctor must assess the patient to confirm the treatment plan remains in the patient’s best interests. The 1983 Actframework only applies to treatment of mental disorders, and so if the patient is suffering from an unrelated physical illness, s. 145 states that treatment could not be administered for the physical illness against his wishes, under the Act.
Where a person has been convicted of a serious crime which is punishable by imprisonment, a court can make a hospital order under s. 37of the 1983 Actinstead of sending the mentally disordered person to prison. Before making such an order, the court must be satisfied that the s. 3criteria are satisfied, and that compulsory admission to hospital is the most suitable method of disposing of the case.
A patient detained under the Act may apply to the Mental Health Review Tribunal to appeal against their on-going detention under s. 72. The panel hearing the appeal are appointed by the Lord Chancellor and comprise one doctor, one lawyer and one lay member. The tribunal is to direct the discharge of a patient detained under the Act, unless it is satisfied that she is suffering from a mental disorder which is of a nature or degree which warrants her continued detention, in her own interests or for the protection of others.
What main changes did it make to the law (key points)?
Given that compulsory detention and medical treatment without consent is generally considered to be the most serious invasion of civil liberties the state can impose, the framework underpinning the mechanisms by which people are detained should be beyond reproach. The Mental Health Act 1983 provides for the compulsory detention and treatment of those considered to be suffering from mental illness in s. 2 and s. 3. In seeking to balance the rights of the individual against the desire to protect the wider community at large, the Act seeks to introduce more checks and balances into the mental health law framework. It provides for independent second opinions and assessments where detention is in place and an independent tribunal to review existing detentions, whilst at the same time providing a mechanism to forcibly detain and treat those with mental illnesses, where it is considered necessary.
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