Detention Criteria Under the Mental Health Act of 1983

Introduction

Mental Health Act of 1983 is one such legislation crafted by the State of United Kingdom that exclusively deals with the admission, detention and treatment of the mentally disabled persons. Under the purview of the Mental Health Act, 1983, mental health has been defined as ‘any disability or disorder of mind’. In respect to such broad definition of mental disorder, the power of detention or ‘sectioning’ under this Act is powerful and provides a broad spectrum of scope in favour of the State to take action against mentally ill people.

Mental Health Act, 1983 does not provide with us a particular definition of detention or the criteria of detention. Under section 2, 3 & 4 of the Act, the criteria, rules and regulations regarding the admission or detention of a mental disorderly person has been provided which only provides us with a vague structure of the action and the wide range of such action is also inconclusive from the Act as well.

Nature and Scope of the Mental Health Act, 1983

Section 1 of the Mental Health Act, 1983 defines mental disorder as ‘any disorder or disability of mind’ with exception to people having learning disability or people addicted to drugs or alcohol unless they have developed any mental disorder under the spectrum of the abovementioned definition along with dependency to drugs or alcohol.

Mental Health Act, 1983 is an inclusive legislation with a priority to acts of omission or forbearance against mental disorderly persons. The main aim of this act is to take administrative actions including detentions, involuntary detention, treatment and involuntary treatment of the mentally ill patients if the authority appointed under this act deems fit. The nature and scope of this Act can be well gathered from the first five sections which speak of the definition of mental health and the criteria and/or regulations under which a mentally ill person can be detained.

Thus, a legislation that deals with such a great power invested in the hands of the State authority and the medical professionals, Mental Health Act, 1983 is definitely lacks field in clearly defining the grounds under which such action can take place. If we can thoroughly summarise the contents of the Act and as per various reports, it can be seen that this Act puts an enormous amount of power in the hands of the medical professionals and the State authority whomsoever and very little amount of consent in favour of the patient or any relative related to the patient herein. From such a viewpoint, it can be easily deduced that the primary nature, scope and aim of this Act is not to treat or protect the persons who suffer from mental disorders but the public at large. It can be concluded that the nature of Mental Health Act, 1983 is to discriminate mentally ill persons as people who infect the society, which only provides the impression of a prejudiced and stereotyped mindset of the legislature of the State herein.

The Power and criteria of detention under the provisions of Mental Health Act, 1983

The word ‘detention’ has not been directly used in the statute but it has been very cleverly implanted within section 2, 3, 4 & 5 of the Act that deal with the provisions of detaining a person within purview of this legislation. The power and criteria of detention has not been distinguished by Mental Health Act, 1983 and the powers given to the medical professionals under this Act has been mentioned as the criteria that needs to be fulfilled for a person to be detained under this Act.

Section 2

Section 2 of the Mental Health Act, 1983, provides this Act with a broad aspect of admitting a person to a hospital authority for the purpose of assessment if the person in focus has not been assessed before or the person has not been assessed for a long time period, the specification of which is to be decided by the authority appointed under this Act.

The assessment under section 2 of the Act of 1983 concludes whether the person in focus, suffers from any mental disorder or not. In order to carry out section 2 herein, an application by the nearest relative of a person or a health professional approved under this Act needs to be submitted before to a hospital and the hospital authority shall have to take action in respect to such application within 14 days. Under section 2, a patient shall be examined by two doctors separately after he/she has been admitted to the hospital. The authority approved by the provisions of this Act shall have the power to detain the patient for a time period of 28 days if the doctors as have been referred above, declare him/her as suffering from a mental disorder.

Under this provision, the patient shall not reserve the right to refuse treatment; however, for the purpose of particular treatment such as ECT, the consent of the patient shall be taken. The patient shall reserve the right to talk to a mental health advocate and shall have the right to appeal before the Mental Health Tribunal against the carried out detention within 14 days of such action. Your nearest relative may appeal for your discharge but it can be overruled by the doctor in charge under section 25 of the Act of 1983 herein.

Section 3

Section 3 of Mental Health Act, 1983 does not deal with the assessment of the mental health disorder of a patient. It only deals with patients who have already been known to the mental health service of the state for having a mental disorder that needs to be treated in a hospital. As it has already been stated under the previous section herein, detention under section 3 is carried out in the same way as well; however, under section 3, you can detained by the authority under this Act for a period of 6 months which can be renewed after being examined by a medical professional under this Act. Again, the patient is entitled to file for discharge before the hospital management and he/she can appeal once during this period of 6 months before the Mental Health Tribunal. The patient under this section shall have the same right of discharge as it has been mentioned under the previous section.

However, the patient cannot refuse treatment under section of this Act of 1983 and the hospital authority shall not need any consent for the purpose of treating the patient for the first three months of detention.

Section 4

Section 4 of Mental Health Act, 1983 is an emergency provision that warrants the detention of a mentally disorderly person if he/she is suffering from a mental disorder to such a degree that he/she may be a threat to himself/herself or the public at large. Although the process of application under section 4 is similar to section 2, the medical professionals shall examine you within 24 hours of your admission and the patient shall need to be approved by one doctor for the purpose of detention.

However, under this section, the patient reserves the ultimate right to refuse treatment and the consent of the patient must be taken before any treatment is given to him/her. Under section 4, the patient can only be discharged after being consented by the medical profession in charge.

Section 5

Section 5 of the Mental Health Act, 1983 deals with providing exclusive power to the hospital authority and/or the medical professionals under the Act where they shall reserve the right to prevent a patient from leaving the hospital premise. Under the spectrum of this section herein, the doctor-in-charge or the nurse shall have the power of holding back if the same cannot be done under the purview of the previous sections herein.

Under section 5 of the Mental Health Act, 1983, a patient can only be detained for a time period of 72 hours and it shall not be renewed as well.

The arbitrary nature of detention under Mental Health Act, 1983 – a critical analysis in respect to case laws

Mental Health Act of 1983 is a tricky legislation that deals with a sensitive issue, the mental health of the citizens of England and Wales. If we can thoroughly scrutinize the Act of 1983 herein, the arbitrary nature and discriminatory quality of contents of this Act shall put forward the prejudiced belief against people with mental disability. The moral discords and lack of understanding held against mental health in UK is astonishing. Although it is named as the Mental Health Act of 1983, the contents of the Act only speaks volume of detention against the mentally ill patients and several conditions thereof, including various sections discarding the consents of the patients. The arbitrary nature and hostility of this Act can be traced through several case laws herein.

Although the abovementioned Act is established on the basis of detention, informally known as ‘sectioning’ and section 2, 3 & 4 describes the extent of mental disability as to a threat to the public at large, no specific definition to that regard has been given. Several conditions, terms and regulations regarding the detention have been specified in the abovementioned Act including regulations regarding treating a mentally ill patient without consent, detaining a mentally discarded person without a warrant and all of these decisions and criteria of detention are often decided by a doctor-in-charge or any police authority and very limited scope has been given to the nearest relative of the patient.

However, the arbitrary nature of the abovementioned Act cannot only be deduced from the abovementioned discussion of the necessary sections. Unless and until the application of all those sections are put together, the subtle trap of detention which not only discards the right to liberty but also right to move against unlawful detentions almost goes unnoticed.

The arbitrary nature of detention can be specifically traced back to the case of M.H. v. The United Kingdom, where a patient of Down’s syndrome was detained under section 2 of the Act of 1983 and she was subsequently detained for a period of 28 days. Her mother acted as nearest relative and applied for the release of the petitioner under section 23 of the Act which was again stamped by section 25 of the Act where the responsible medical officer in that instant case barred her application on the basis that the patient can only make such application before the Mental Health Review Tribunal. As she was detained under section 2 of the Act, she could have applied under section 66(1) for discharge before the Mental Health Review Tribunal but could not due to here lack of legal capacity. Thereafter, solicitors on behalf of the petitioner as appointed by the hospital, moved before the Tribunal and again the discharge application was further rejected. Subsequently, a judicial review case under section 4 of the Human Rights Act, 1988 and article 5(4) of the European Convention on Human Rights was instituted before the High Court herein and the Secretary of State was held as one of the defendants. It was further held by the Court that the petitioner herein was detained unlawfully under section 2 of the Mental Health Act, 1983 and thus, qualified to be compensated as well.

If we critically discuss and analyse the abovementioned case, it can be seen that any detention under section 2 of the Mental Health Act, 1983, completely put a patient under the mercy of the system including the medical officer-in-charge and the extension of the period of detention can be twisted and applied as the detainee wishes without giving any regard to the person detained. Also, if a patient is not legally capable to move for a discharge application within the first fourteen days, there are no other provisions under section 2 of the Act that gives the detained patient any right to review her detention which makes the first 28 days of detention under section 2 of the Act arbitrary and in abuse of law.

Again, the same pattern of arbitrariness was found in the case of The Secretary of State for Justice v RB & Anor, where no test of legality was made for the discharge of a detained restricted person and the Court held that the Act of 1983 directly contradicts article 5(4) of the ECHR.

In the case of Sessay, R v South London & Maudsley NHS Foundation Trust , the petition was detained by the defendant for 13 hours before admission to the hospital under the Mental Health Act, 1983 was made the same herein was constituted as unlawful under article 5 of the ECHR and under article 21(7) of the Victorian Charter of Human Rights and Responsibilities as well.

In the case of R v. Hallstorm, it was seen that the hospital abused their authority to extend the term of detention of patient beyond 28 days and in the case of W v Edgell, it was observed that the discharge of a patient was tied to the report of psychiatry who abused his power and the patient was forced to be detained even if he posed no risk to the society at large.

Thus, the pattern of arbitrary detention under section 2 of the Mental Health Act, 1983 is comprehensible from the abovementioned cases where section 2 prescribes for a detention period of 28 days or an extension of such detention beyond 28 days which has a very limited scope to be challenged within the perimeter of the Mental Health Act, 1983 and instant relief against detention is unattainable. Again, the power to recall by hospital under section 17E of the Act, prescribes of ultimate authority where no scope for second opinion exists. Section 25 of the Act of 1983, reserves a right to the hospital to reject the discharge application made by the nearest relative and it also states that the hospital shall not need to give enough reasons to that effect. The same authoritarian command does prevail in the Part III and Part IV of the Act where the reliefs in favour of the patients were solely left at the mercy of the hospital authority or the State herein.

Does detention under the Mental Health Act, 1983 contradict the Standard of Human Rights under the European Convention on Human Rights and the Human Rights Act, 1988?

According to the words of RCP, the spectrum of Mental Health Act, 1983 is non-consensual and discriminates highly against persons with mental disability. It is said that there has been a constant hustle between protecting the mentally ill patients and protecting the public safety. While according to the definitions under the Mental Health Act, 1983, it concerns with the public safety, the Human Rights Act, 1988 cares more about providing proper care to the mentally disable persons.

The Human Rights Act of 1988 was formed on the basis of the European Convention of Human Rights of 1953 and several articles of the ECHR was implemented directly into the body of the Human Rights Act of 1988 such as article 2 (right to life), article 3 (prohibition of torture), article 5 (right to liberty and security) etc. In the beginning of the implementation of the Human Rights Act, 1988, it was regarded that Mental Health Act of 1983 fulfills all the sections of the Human Rights Act, 1988 with minor exceptions. The final test and connection between these two acts were covered by the case of Winterwerp v Netherlands, it was held that under article 5(1)(e) of the Human Rights Act, 1988, lawful detention of the person with ‘unsound mind’ was permitted and it was also stated in this case that the State had the onus to prove the critical nature of ‘unsoundness of mind’ before the court and justify proper reasons to detain a person and anyone cannot be detained on the basis of simple behavioral disagreement.

As it was stated herein that a simple comparison between these two Acts did not provide the legislation or the judiciary with any contradictory views whatsoever but with the institution of more and more cases under the violation of the Human Rights Act, 1988, several conflicts were put before the High Court of England and Wales herein.

In the case of JT v. The United Kingdom, the rigidness of the definition of nearest relative under article 3 of the Mental Health Act, 1983 was questioned and the claimant who was detained under section 3 of this Act, instituted a case on the basis that article 8 ( right to privacy regarding family life) of the Human Rights Act, 1988 was infringed.

Again, in the case of Rv. MHRT North and East London Region, it was held that section 72 and 73 of the Mental Health Act, 1983 was incompatible with ECHR and subsequently the provisions of the Human Rights Act 1988 and the guidelines set in the case of Winterwerp, as both of these sections forced the patients with the burden of proving the unlawful of the detention while it should have been other way around.

In the adjoining cases of City MH NHS Trust & Snazell v. von Brandenberg and R v. Camden and Islington Health Authority, it was held that conditional discharge under the Mental Health Act, 1988 shall breach article 5(4) of the ECHR and the Human Rights Act, 1988 and article 8 of the same Act as well.

Thus, in the absence of any specific definitions under both of the Acts and the ECHR, it cannot be held that the whole of the Mental Health Act 1983 directly contradicts the standards of human rights in the UK but as it can be well traced from several case laws instituted under the ECHR and the Human Rights Act, 1988, the application of several combined sections of Mental Health Act, 1983 that neither provides nor covers all the possible situation of the detained person herein, have time and again challenged the provisions of the ECHR and the Human Rights Act, 1988 and succeeded as well.

The Negative impact of detention under Mental Health Act, 1983 – Who does the legislation protect?

Section 1 of the Mental Health Act, 1983 states the perimeter of detention under section 2 of the same Act by defining the term ‘Mental Disorder’ as any disability or impairment of mind which causes hindrance the daily functioning of that particular person. The definition is extremely broad and simple for a codified legislation dealing with operative omission or forbearance. Mental Health Act, 1983 mostly concerns with sectioning and/or detaining mentally challenged person and provides for all the negative actions to be taken against a mentally challenged person as it has been enshrined under Part II, Part III and Part IV of the Act of 1983 herein.

Thus, the concern arises: who does this mental legislation protect? From the abovementioned definition of ‘mental disorder’ which excludes the presence of any clinical disorder to activate the section of detention clearly gives us the picture that it is not the mentally challenged persons who are protected by the act of Mental Health Act, 1983 but the public at large. The vague criteria of detentions, forced treatment without consent and rights of the mentally challenged persons curbed by several sections of the same Act only indicates towards the social stigma and discrimination that the administration of the United Kingdom nurtures till date. The several barring orders against temporary detentions, rigid definitions in the sphere of discharge application while considering compulsory detention and breach of several human rights as have already been discussed before only provides one concrete animal like status of the mentally challenged persons in UK.

According to the Care Quality Commission of UK, while the Human Rights Act, 1988 and the ECHR herein speaks against unlawful detention and violation of the basic fundamental rights of the mentally challenged persons, both of these legislations do not contradict the definition of ‘mental disorder’ under the Act of 1983, the sole problem concerning the vague status of unlawful detentions. It is better to eradicate or treat the pests that weaken a tree rather than plucking the rotten leaves off.

In light of the recent years, the Mental Health Act of 1983 has been amended in the year of 2007 and it has been accompanied by several other legislations such as Mental Capacity Act, 2005 and Equality Act, 2010 which attempt at maintaining the standard of human rights in respect to mentally incapable persons and uphold the rights of individuals. However, the basic problem i.e. the use of such a broad definition of ‘mental disorder’ is still attached to the Mental Health Act (amended), 2007 while considering the circumstances of a temporary or compulsory detention. A broad definition in a codified legislation that governs omission and forbearance only brings about chaos and injustice and necessarily curtails the freedom of the individuals herein.

Conclusion

The discrimination against mental health is not just a problem of the legislation or the administration of UK; rather it is a social problem that has its very root in the concept of discrimination. Thus, in order to eradicate and conclude the vague and exhaustive nature of detention under the Mental Health Act, 1983, it is necessary to educate the legislatures and the people in general about mental health and how the issues concerning mental health should be treated in the light of positive legal actions. However, it is also necessary to take the action of detention against mentally challenged persons but for an action of such negative character should have a classified definition and circumstances under the Mental Health Law. The broad definition of ‘mental disorder’ under the Mental Health Act, 1983 is primarily the root of extreme arbitrariness and immediate attention should be given to limit such definition. Once the Act of 1983 (Amended, 2007) is put under the microscope of limited definition, the spectrum of detention would automatically shed its arbitrary nature and uphold the right to liberty of the individual as well.

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BIBLIOGRAPHY

Legislation

Charter of Human Rights and Responsibilities Act, 2006

Equality Act, 2010

Mental Health Act, 1983

Mental Capacity Act, 2005

Case Laws

R v. Camden and Islington Health Authority, [1998] QB 978

City MH NHS Trust & Snazell v. von Brandenberg, [2003] UKHL 58

Rv. MHRT North and East London Region, ex parte H (2001) 3 WLR 512

JT v. The United Kingdom, [2000] 1 FLR 909

Winterwerp v Netherlands, 6301/73 [1979] ECHR 4

W v Edgell, [1990] Ch 359[1989] EWCA

Sessay, R v South London & Maudsley NHS Foundation Trust, [2011] EWHC 2617 (QB)

Secretary of State for Justice v RB & Anor, [2011] EWCA Civ 1608

M.H. v. The United Kingdom, [2013] ECHR 1008, [2013] MHLO 94

Journals

Peter Bartlett; ‘The Necessity Must Be Convincingly Shown To Exist’: Standards For Compulsory Treatment For Mental Disorder Under The Mental Health Act 1983 (2011), Medical Law Review, V. 19, Issue 4, p.514–547

Andrew Parsons; ‘Consent to treatment and mental health (2003)’; Journal of the Royal Society of Medicine, V. 96(6) p. 315–316

Camilla Parker; “Consent vs Compulsion: Treatment under the Mental Health Act, 1983.” AVMA Medical & Legal Journal 4, no. 6 p.184–188

Shaw L, Nunns M, Briscoe S, et al; ‘Experiences of the ‘Nearest Relative’ provisions in the compulsory detention of people under the Mental Health Act: a rapid systematic review.’ (2018); NIHR Journals Library; Health Services and Delivery Research, No. 6.39

Leung WC; ‘Human Rights Act 1998 and mental health legislation: implications for the management of mentally ill patients’. Postgrad Med J. 2002 Mar;78(917):178-181

Szmukler, G. & Holloway, F; Reform of the Mental Health Act: Health or safety? (2000); British Journal of Psychiatry, 177, 196–200

Articles/Reports/others

‘White Paper on the Reform of the Mental Health Act 1983: Letter from the Chair of the College's Public Policy Committee’ (2001). Royal College of Psychiatrists

Care Quality commission; ‘Monitoring the use of the Mental Health Act in 2009/10’ (2010); The Care Quality Commission’s first report on the exercise of its functions in keeping under review the operation of the Mental Health Act 1983, p.33

‘White Paper on the protection of human rights and dignity of people suffering from mental disorder, especially those placed as involuntary patients in a psychiatric establishment’ (2000); Council of Europe; Strasbourg: Council of Europe

Review of the Mental Health Act, 1983 (2018); The Royal College of Psychiatrist’s submission of evidence

‘Our advice to parliament: reforming the Mental Health Act, Westminster Hall Debate (2019)’; Equality and Human Rights Commission

Treaty

‘European Convention on Human Rights’; opened for sign 4th November, 1950 (Entered into force on 3 September, 1953) 23 INT’L