Mental Health and The Law - A Brief Overview

Seminar Notes by Mary Walsh. LL.B.(Hons); Dip. DI; Barrister

Mental Health and the Law.

Aim: At the end of this seminar you will have a greater basic knowledge of the issues surrounding mental health.

Order of seminar:
1. Introduction and Definition of Mental Health
2. Types of mental disorder
3. Personnel dealing with mental illness
4. Legislation, including The Human Rights Act 2000
5. Impact on lecturers of DDA 1995 and SENDA 2001

Introduction and Definition of Mental Health.

Many crimes require that there is mental assent to a crime by the perpetrator for there to be any crime committed at all, e.g. Theft requires such a mental assent in the form of mens rea where there is an intention to permanently deprive. So what does this have to do with mental illness? The state of a persons mind can have a huge impact of the way they are dealt with by the courts; society at large and health service professionals.

The New Collins Concise English Dictionary definition of mental is... of involving the mind or occurring only in the mind. This then means that mental disorder is something which affects the mind, but as the mind is a very complex and sensitive organ there are many illnesses and disorders that can affect it. This seminar will not be able to cover all of these.

It is some of the different disorders and approaches to treatment and the laws regarding such disorders that I intend to address.

Types of Mental Disorder
There are four main types of mental disorder:

Mental Illness:
The Department of Health has provided a guide to the symptoms associated with mental illness such that "mental illness means an illness having one or more of the following characteristics":

· More than a temporary impairment of intellectual functions shown by a failure of memory, orientation, comprehension and learning capacity.
· More than a temporary alteration of mood of such a degree as to give rise to the patient having a delusional appraisal of his situation, his past or his future, or that of others as to the lack of any appraisal.
· Delusional beliefs, persecutory, jealous or grandiose.
· Abnormal perceptions associated with delusional misinterpretations of events.
Section 1(2) Mental Health Act 1983

· Thinking so disordered as to prevent the patient making a reasonable appraisal of his situation or having reasonable communication with others.

Mental Impairment:
"Means a state of arrested or incomplete development of mind (not amounting to severe mental impairment) which includes significant impairment or intelligence and social functioning and is associated with abnormally aggressive or serious irresponsible conduct".

Severe Mental Impairment:
"Means a state of arrested or incomplete development of mind which includes severe impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct". The distinction between "severe mental impairment" and "mental impairment" is one of degree. The assessment of the level of impairment is a matter for clinical judgement.

Psychopathic Disorder:
"Means a persistent disorder or disability of mind (whether or not including significant impairment or intelligence) which results in abnormally aggressive or seriously irresponsible conduct".

Types of Disorders.

Below I have tried to elucidate on several of the main types of mental disorders:

This is a mental disorder that affects approximately one out of every hundred people and affects men and women equally. Men with schizophrenia usually notice the first signs in their late teens or early twenties, whereas women are affected in their twenties or thirties.

Hallucinations - happen when you hear, smell, feel or see something when there is nothing or anybody to actually hear, smell, feel or see. I think it is well known that the commonest hallucination is hearing voices which sound so real that you are really convinced they are truly coming from outside of you to the extent that you talk back to them. It is important to remember that the voices are not imaginary but do actually come from our own minds. Other kinds of mental disorder may cause sufferers to hear voices that directly talk to them, but in schizophrenia, the voices not only talk to the sufferer but to each other as well.

Delusions - are a particular kind of unusual belief, meaning uncommon or unknown in your culture and is a belief that is very strongly held without any evidence or knowledge to support such a belief. Such delusions can start quite suddenly after a period of time where the sufferer has been aware that something strange has been happening without being able to explain what. For example, paranoid delusions (paranoid being just another word for feeling persecuted or harassed), which at first may seem quite reasonable, such as thinking your partner is having an affair even though it is not true or can be you feel that the government or MI5 is spying on you. Delusions can be very upsetting for the rest of the family of the sufferer if the sufferer believes that it is the family that is their persecutors.

Muddled Thinking or Thought Disorder - where there is difficulty in concentrating, e.g. completing the reading of an article or watch a television programme. One of the things that make difficult to concentrate is the way the sufferers' thoughts connect with each other, and wander off on their own drifting from idea to idea without any connection to each other.

Feelings of being controlled - where the sufferer feels that some else is taking thoughts out of their mind or putting thoughts into it, whereby the sufferer feels like they are losing control to someone else. This can be very unpleasant and disturbing for the sufferer.

This is a very common experience and can range from mild to very debilitating and severe.

These can help the sufferer, their family or their G.P. decide if depression is the cause of the melancholy:
· Feelings of unhappiness that do not go away
· Losing interest in life
· Becoming unable to enjoy anything
· Finding it hard to make simple decisions
· Feeling utterly tired
· Feeling restless and agitated
· Losing appetite and weight or sometimes even weight-gain
· Difficulty in sleeping
· Waking up earlier than usual
· Lack of interest in sex
· Loss of self-confidence
· Feelings of being useless, inadequate and hopeless
· Avoidance of other people
· Feeling irritable
· Feeling worse at a particular time of the day, usually mornings
· Thoughts of suicide

Personality Disorders.
Of these there are many and I do not propose to go into each one in any great depth as time does not permit, but each disorder will have brief symptoms as this may be especially important for classroom situations.

· Antisocial Personality Disorder - characterised by a long-standing pattern of a disregard for other people's rights, often crossing the line and violating those rights and include failure to conform to social norms with respect to lawful behaviour; deceitfulness as indicated by repeated lying; impulsivity or failure to plan ahead; irritability and aggressiveness as indicated by repeated physical fights or assaults; reckless disregard for safety of self or others; consistent irresponsibility as indicated by repeated failure to sustain consistent work behaviour or honour financial obligations and finally, a lack of remorse, as indicated by being indifferent to or rationalising having hurt, mistreated or stolen from another.

· Schizoid Personality Disorder - A pervasive pattern of detachment from social relationships and a restricted range of expression of emotions in interpersonal settings as indicated by four or more of the following: Neither desires nor enjoys close relationships including being part of a family; almost always chooses solitary activities; has little, if any, interest in having sexual experiences with another person; takes pleasure in few, if any, activities; lacks close friends or confidants other than first-degree relatives; appears indifferent to the praise or criticism of others and shows emotional coldness, detachment or flattened affectivity.

· Paranoid Personality Disorder - A pervasive distrust and suspiciousness of others such that their motives are interpreted as malevolent. Indicated by four or more of the following: Suspects, without sufficient basis, that others are exploiting, harming or deceiving them; is preoccupied with unjustified doubts about the loyalty or trustworthiness of friends or associates; is reluctant to confide in others because of unwarranted fear that the information will be used maliciously against them; reads hidden meanings into remarks that are benign but is treated as demeaning and threatening; never forgives insults or injuries; has a perception that an attack is made on their character or reputation that is not apparent to anyone else and thereby reacts in anger; persistently suspects spouse or partner as committing infidelity, without reason.

· Obsessive and Compulsive Personality Disorder - a pervasive pattern of preoccupation with orderliness, perfectionism and mental and interpersonal control. This causes' there to be a lack of flexibility, openness and efficiency. As with previous disorders there has be four or more of the following present for this disorder to be indicated: has a preoccupation with details, rules, lists, order and organisation to such an extent that the task required of the above is actually lost; where a task cannot be completed because of the sufferers own ideals of perfectionism means that they do not meet their own standards; does not follow leisure activities because of the amount of time devoted to work and productivity; extremely conscientious and inflexible where morality or ethics is concerned and cannot be accounted for in culture of religion; is a 'horder' of objects that no longer has any use; has a 'set-way' of doing things preventing them from delegating; saves money to a fault 'just in case'; is very rigid and stubborn.

· Narcissistic Personality Disorder - A pervasive pattern of grandiosity requiring constant admiration and without empathy. This is indicated by five of the following: has a grandiose sense of importance; fantasies about unlimited power, success, brilliance and love; has an inflated sense of being 'special' and unique where only people of high-status can understand or associate with them; expects favourable treatment and entitlement; is interpersonally exploitative; unwilling to recognise or identify with the feelings of others; shows envy of others or holds a belief that others are envious of them; is arrogant.

· Histrionic Personality Disorder - A pervasive pattern of excessive emotionality and attention seeking, and is indicated by five or more of the following: if they are not the centre of attention they feel uncomfortable; uses inappropriate sexual or provocative behaviour during interaction with others; shows constant change in shifting and shallow emotions; consistently uses physical appearance to draw attention to self; has a style of speech that is excessively impressionistic and lacking in detail; has an exaggerated expression of emotions through self-dramatisation and theatricality; is easily influenced by others or circumstances; intensity towards relationships is greater than it actually is.

· Dependent Personality Disorder - This is characterised by the sufferer having a long-standing need to be taken care of and having a fear of being abandoned or separated from important individuals in their life. Shows a 'clinging' type behaviour and has the majority of the following symptoms: needs an excessive amount of advice and reassurance to make an everyday decision; cannot assume responsibility for most areas of their life; has difficulty expressing disagreement with others for fear of losing their support or approval; has no self-confidence in their own judgement and abilities and therefore cannot begin projects; will volunteer to complete unpleasant tasks in order to win the support and nurturance from others; does not like being alone for fear of being unable to care for themselves thus causing urgency in seeking a relationship in order to receive the care and support for which they crave; is unrealistically preoccupied with fears of being left to take care of themselves.

· Borderline Personality Disorder - Someone who suffers from this has labile interpersonal relationships characterised by instability and is present in a variety of settings, i.e. not just at work or home. A person with this disorder may also exhibit impulsive behaviour and exhibit a majority of the following symptoms: to keep from imagined or real abandonment the sufferer will make frantic efforts; show a pattern of unstable and intense interpersonal relationships characterised by alternating between extremes of idealisation and devaluation; show a markedly and persistent unstable self-image; show impulsivity in any two of spending, sex, substance abuse, reckless driving, binge eating; has recurrent suicidal behaviour or threats or self-mutilation; affective instability due to a marked reactivity of mood; chronic feelings of emptiness; has difficulty controlling anger which may be intense or inappropriate; transient, stress-related paranoid ideation or severe dissociative symptoms.

· Avoidant Personality Disorder - Characterised by long-standing and complex patterns of feelings of inadequacy and extreme sensitivity about what other people think about them and social inhibition, showing the following symptoms: will avoid going out with work or college colleagues for fear of criticism or rejection; wants to be certain of being liked before getting involved with people; shows restraint within intimate relationships because of the fear of being shamed or ridiculed; has a preoccupation with being criticised or rejected in social situations; where new interpersonal relationships arise they will be inhibited because of the fear of inadequacy; sufferers see themselves as socially inept and not appealing to anybody else and inferior to everyone else; shows reluctance to engage in new activities or take any risks for fear of being embarrassed.

Drug Induced Psychosis.

This type of psychosis is different to other types of psychosis which may only appear during periods where there has been no drug abuse. Substance abuse psychosis only occurs in conjunction with times when you are 'out of it', coming down or withdrawing from drugs. As different drugs take different times to leave your body and episode of drug induced psychosis may come upon you up to four weeks after the last time you took the drugs. The symptoms are very similar to those found in other forms of psychosis and are mainly delusions or hallucinations. What kind of drugs am I talking of? Well drugs like unprescribed pharmacy drugs, cannabis, hash, heroin, speed, trips, crack, alcohol, ecstasy. Drugs like speed or coke induce delusions and hallucinations very similar to each other. There may be the delusion that people are out to get you or are plotting against you. You might hallucinate that you can feel something crawling under your skin trying to get out. With these two drugs, an episode of substance induced psychosis can last for a number of weeks, even though you have stopped taking the drug.

If you are already suffering from a psychotic illness then you are more at risk of making the symptoms already being suffered, much worse when drugs are taken. Prescribed medication for the psychotic illness will be less effective and you will probably require hospitalisation much more frequently.

The big debate at the moment is the Home Secretary's insistence on reducing cannabis from a class B to a class C drug, but still carry the penalty of class B for sellers. Many people, me included, do not believe it right that such a drug should be decriminalised. Cannabis, in line with other drugs, still causes the following symptoms: delusions that can make the taker feel as though people are out to 'get them', have feelings of anxiety or that you are not really there and panic attacks. Similarly, although not a psychotic episode, cannabis can cause a lack of concentration and decrease learning ability. Cannabis is supposed to be more carcinogenic than tobacco. According to Keith Halliwell the former Drugs Czar, a substantial percentage of people killed in road traffic accidents have consumed drugs.

Personnel Dealing With Mental Illness

There are several professionals that handle the care of people with mental disorders and it is these that I will give a very brief summary with reference to the Mental Health Act 1983.

In alphabetical order:

· Approved Social Worker (ASW) - Is a social worker with additional training and experience in dealing with people suffering from mental disorder who is appointed by the local social services authority to carry out certain functions under the Mental Health Act (Ss 114 and 145).

· Community Psychiatric Nurse (CPN) - A psychiatric nurse who has taken additional training in order to work with people who live in the community but have psychiatric problems.

· Community Responsible Medical Officer (CRMO) - is the doctor responsible for psychiatric treatment in the community of a patient subject to Supervised Discharge. The CRMO must be approved under section 12 of the Mental Health act as having special experience in the diagnosis and treatment of mental disorder (sec. 117(2A)(a)).

· Hospital Managers - are, in the case of an NHA Trust, the directors of the Trust or outside people specifically appointed to perform the duties of the Hospital Managers. These duties include ensuring that the grounds for detaining a person are valid, that the admission papers are in order and that patients are informed of their rights. The Hospital Managers have the power to review a patient's detention and to order a patient's discharge from the detention order.

A sub-committee or Hospital Managers is usually appointed to hear patient's appeals and must not be confused with the actual officers of the Trust itself and its' other duties are delegated to the Mental Health Act Administrator. The Hospital Managers hearing the appeal are independent and consist of a panel of three people with some knowledge or training in mental health. (Sections 6; 132; 145; the Code of Practice).

· Mental Health act Commission (MHAC) - is a Special Health Authority which, on behalf of the Secretary of State, keeps the use of the Act, in relation to detained patients, under review. The duties of the Commission include visiting detained patients, investigating detained patients complaints, monitoring the use of the Act and providing Second Opinion Appointed Doctors.

· Mental Health Review Tribunal (MHRT) - provides an independent review of the need for the patients continued detention under the Act. An MHRT consists of three people; a lawyer, a Doctor and a 'lay' person. (Sch. 2 of the Act.

· Nearest Relative - the legal term used in the Act, not the next-of-kin. A patient's nearest relative is defined by the Act (s. 26). Patients cannot presently choose their nearest relative. He nearest relative is the person who, due to his or her relationship to the patient, has been given certain rights and powers in connection with the patient's admission to and detention in hospital. Section 26 sets out the list of people who may be the nearest relative. It will be necessary to consider this list in the light of the patient's individual circumstances to ascertain who the nearest relative is. If a patient has two relatives of equal standing e.g. father and mother, the elder of the two will be the nearest relative.

· Responsible Medical Officer (RMO) - is the doctor in charge of the patient's treatment in hospital (s.34).

· Second Opinion Appointed Doctor (SOAD) - A Doctor appointed by the Mental Health Act Commission (MHAC) with two other MHAC members to attend to a patient who is refusing treatment and thereby to assess whether the treatment should be given without the patient's consent under s. 58 of the Mental Health Act 1983.

· Section 12 Approved Doctor - Health Authorities have the task of approving local medical practitioners under s.12 (2). The health Authorities tries to ensure that there are sufficient doctors and that there is a 24 hour on-call rota.

· Supervisor - is the mental health professional who has been nominated or agreed to supervise the care of a patient who has been made subject to supervised discharge from a hospital. The supervisor is likely to be a Community Psychiatric Nurse (CPN) or an Approved Social Worker (ASW) and play an important part in post-inpatient care.


This is the only area where a person can lose their liberty without having to be tried by their peers. Therefore, there must be in place a protective legislation for the sufferer of a mental disorder and for the public at large. There are numerous pieces of legislation that govern the treatment and detention of persons suffering from a mental disorder, the following is a list of most of the legislation:

· The Mental Health Act 1983 - the main piece of legislation governing care & currently under review.
· The Mental Health (Patients in the Community) Act 1995
· The Mental Health (Hospital, Guardianship and Consent to Treatment) Regulations 1983
· The 1983 Mental Health Act Code of Practice (1999) 3rd Edition
· The Mental Health Act 1983 Memorandum on Parts I to VI, VIII and X (1999) 5th Impression
· The Human Rights Act 1998 - a large influence on the way decisions are now governed.

Since the inception of the Mental Health act 1983 there has also been a raft of amending legislation, both in terms of Statutes and by Statutory Instruments as the law and life has moved on. These include:

· Children Act 1989
· NHS Community Care Act 1990
· Courts and Legal Services Act 1990
· Criminal Procedure (Insanity and Unfitness to Plead) Act 1991
· Criminal Justice Act 1991
· Probation Service Act 1993
· Mental Health (Amendment) Act 1994
· Mental Health (Patients in the Community) Act 1995
· Health Authorities act 1995
· Armed Forces Act 1996
· Crime(Sentences) Act 1997
· Mental Health (Nurses) Amendment Order 1993 (SI 1993/2155)
· Mental Health (Hospital, Guardianship and Consent to Treatment ) Amendment Regulations 1997 (SI1997/801)
· Mental Health (After-care under Supervision) Regulations 1996 (SI 1996/294)
· Mental Health Review Tribunal (Amendment ) Rules 1998 (SI 1998/1189)
· The Mental Health Act 1983 (Remedial) Order 2001

The Mental Health Act 1983 (MHA) is part of the legislative framework which aims to provide a consistent and comprehensive approach to psychiatric care in England and Wales. Below are a few of the provisions relating to detention and treatment of patients and those suffering from mental disorders:

Part II of the Act - Compulsory Admission and Guardianship:

Section 2 - Admission for Assessment:

This allows for the compulsory admission and detention for assessment or assessment followed by treatment for mental disorder for up to 28 days. The period is not renewable and if continued detention is required it must be followed by a section 3 application. Further complications can arise if the nearest relative objects to the transfer of the patient from s.2 to s.3 admission for treatment. In this case an application should be made to the county court under s.29 of MHA in order that the nearest relative is removed and transferred to the local Social Services Authority or to another person.

The grounds for admission and detention are that the patient is suffering from mental disorder of a nature or degree which warrants such detention for a limited period AND he/she ought to be so detained for his/her own health or safety OR for the protection of others. Two medical recommendations are required.

A patient who is detained under this section should obtain quicker access to a Mental Health Review Tribunal (MHRT) than one under s.3.

After care would not be available under this section, however, there could be a possible incompatibility with Human Rights legislation that tries to guarantee the prohibition of inhuman and/or degrading treatment if indeed it could be shown that receiving no after care was inhuman or degrading to that particular patient.

Section 3 - Admission for Treatment:

Allows compulsory detention for treatment for up to six months and is renewable for six months in the first instance and then for periods of one year.

The grounds for admission and detention are that the patient is suffering from mental illness, mental impairment, severe mental impairment or psychopathic disorder (a patient who is suffering from any other disorder or disability of mind cannot be detained for treatment under this order) AND the mental disorder is of a nature or degree which makes it appropriate for the patient to receive such treatment in hospital AND it is necessary in the interests of his/her health or safety OR for the protection of others that he/she should receive such treatment and it cannot be provided unless he/she is detained AND for a patient suffering from a psychopathic disorder or mental impairment there is an additional condition that medical treatment is likely to alleviate or prevent a deterioration in his/her condition. Two medical recommendations are required.

Section 4 - Emergency Admission for Assessment:

This section allows for the compulsory admission and detention for assessment for up to 72 hours. It provides for emergency situations, in the community, when those involved cannot cope with a person's mental state and that person needs to be forcibly admitted to hospital. This order should only be used where immediate admission is necessary and with the clear intention that detention under section 2 will be arranged once the patient is in hospital.

The grounds for admission and detention are when there is urgent necessity for the admission of a person to hospital for assessment this order may be implemented. It should only be used where the delay in waiting for a second opinion for a Section 2 would be undesirable due to the serious nature of the patient's current illness and the ability to cope within the community setting.

Section 5(2) - Doctors holding power of an informal patient for 72 hours:

The grounds for admission and detention of a mentally disordered patient who is already receiving treatment in hospital as an informal patient who may wish to leave the hospital before there is time to complete a s.2 or 3 assessment.

Section 5(4) - Nurses holding power of an informal patient for 6 hours:

The grounds are for a Registered Nurse to detain a patient who is already being treated for a mental disorder and the degree is such that it makes it necessary for the patient to be detained for their health or safety or for the protection of others, for him to be immediately restrained from leaving hospital. It can only be used if the patient is indicating wither verbally or otherwise that they wish to leave hospital and it is not practicable to obtain a doctor for the purpose of furnishing a report under s.5(2).

Section 7 - Guardianship:

In order to enable patient's to live in the community instead of hospital the Act has put in place a scheme that enables patients to receive care whilst in that community, but where the care cannot be provided without the use of compulsory powers. This is the domain of the guardian who has an authoritative framework enabling them to work with the patient. It is, however, imperative that this must be one part of an overall care and treatment plan.

Any such care plan will include care arrangements; suitable accommodation; treatment and personal support. The care plan should also indicate which of the powers under the Act are necessary to achieve the plan. If no powers are required then guardianship should not be used.

Section 8 - The Powers of the Guardian:

This section sets out the three powers that the guardian has, namely:

· To require the patient to domicile at a place specified by the guardian;
· To require the patient to attend at specified places for medical treatment, occupation, education or training. However, if the patient refuses to attend, the guardian is not authorised to use force to make them attend. Similarly, there is no power to force treatment to be administered without the patient's consent;
· To require access to the patient to be given at their place of domicile to persons detailed in the Act.

Section 17 - Leave of Absence:

Where a patient is detained that patient can only leave that hospital or unit lawfully, even if it is only for a very short period of time, by being given leave of absence under the provisions of this section or by being transferred to another hospital under s.19.

The s.17 leave can only be given by the Responsible Medical Officer (RMO) to those patients who have been detained as an unrestricted patient; but they are unable to grant any leave to those patients who are detained under a restriction, i.e. sections 35, 36 or 38, where they need the authority of the Home Secretary.

The leave, as an example can be anything from 15 minutes to 8 hours and can be either accompanied or unaccompanied. The leave can be seen as a period of trial to help assess the patient's suitability for discharge.

Under s.17(4) of the Act a patient may be recalled from their leave back to hospital if it appears to the RMO that it is in the interests of the patient's health or safety or for the protection of other persons. The RMO must give notice to the patient or any person in charge of the patient. The patient will then return to inpatient care (R -v- Halstrom, ex parte W; R -v- Gardner, ex parte L (1986) 2 ALL ER 306). However, if a patient's period of detention has lapsed they then cannot be recalled.

If the patient is a restricted patient, then they can be recalled at any time until the restriction order has been lifted.

Section 18 - Absence Without Leave:

Where a patient has left the hospital or place where they are required to domicile without the authorisation of the RMO, then in the following circumstances they will be absent without leave and may be detained by any Approved Social Worker (ASW) or any authorised person on the hospital staff or any police officer. The circumstances are; where the patient has left either the hospital or place where they should domicile without authorisation or when the patient fails to return after the end of their authorised leave or when recalled.

Section 23 - Hospital Managers' Power of Discharge:

Where patient appeals to a hearing before the Hospital Managers (the panel of three independent people) they can, if the panel agree, be discharged from their detention if that detention is of an unrestricted nature.

The Managers hearing is more informal than the MHRT and may be convened more quickly. Any decision must be unanimous and must be based on the evidence before them. The essential yardstick in considering a review application is whether the grounds for admission or continued detention under the Act are satisfied.

Where the panel at the hearing decide that the patient is still suffering from a mental disorder and that this disorder is of a nature or degree which makes treatment in hospital appropriate and that detention in hospital is still necessary in the interests of the patient's health or safety or for the protection of other people. Then in these circumstances the patient should not be discharged. If, on the evidence, the answer to any of these questions is 'no', then the patient should be discharged.

Occasionally the RMO may make a report under s.25 (1) - Prevention of discharge by nearest relative. In this case the panel of managers at the hearing need to consider not only the three questions in the paragraph above but the additional question of, 'would the patient, if discharged, be likely to act in a manner dangerous to other persons or to him or herself?' The RMO must directly address the issue of 'dangerousness'. The fourth criteria emanated from R -v- Riverside Mental health NHS Partnership, ex parte Huzzey [1998]

Part IIA of the Act - After-care under Supervision (Supervised Discharge)

The purpose of this section is to cause an arrangement by which a patient who has been detained in hospital for treatment may be subject to formal supervision once discharged. This is very much linked with s.117 of the act where after-care services are to be provided. Although available for all those suffering from mental disorder its primary requirement is to make provision for those suffering severe mental illness.

This section came about under secondary legislation by way of The Mental Health (After-Care under Supervision) Regulations 1996

Under this section there are several sub-sections each dealing with after-care , which may be supervised (s.25A); require consultation and submission of application (s.25B) and supporting documentation (s.25B and s.25C); including the requirements of the patient (s.25D); review and modification under supervision (s.25E); reclassification of the patient (s.25F); renewal of after-care supervision (s.25G); ending the after-care supervision (s.25H) and suspension of after-care under supervision (s.25J)

Part III of the Act - Powers of the Courts and Home Secretary.

Section 35 - Court Order to Remand to Hospital:

This section gives the courts the legal powers to remand an accused person to detention in a hospital thereby enabling a report to be prepared on their mental condition.

Evidence must be given either orally or written form by two doctors, one of whom must be s.12 approved and that the accused is suffering from mental illness or sever mental impairment of a nature or degree which makes it appropriate for him to be detained and that the accused will be admitted to hospital within seven days of the date of remand. In addition, the court has been of the opinion that it would be impractical for a report to be made if the accused were released on bail.

Section 36 - Crown Courts' Power to Order Remand to Hospital for Treatment:

This provision gives the courts an alternative to the power of the Home Secretary under s.48 to transfer unsentenced prisoners hospital in an emergency and as such the power applies to a person who is in custody awaiting trial for an offence punishable with imprisonment, with the exception of murder, or to a prisoner who is in custody at any stage of such a trial prior to sentence.

Evidence must be given either orally or written form by two doctors, one of whom must be s.12 approved and that the accused is suffering from mental illness or sever mental impairment of a nature or degree which makes it appropriate for him to be detained and that the accused will be admitted to hospital within seven days of the date of remand.

Section 37 - Courts Power to Make Hospital or Guardianship Orders:

This section empowers the courts to make the above Order in respect of certain types of offender.

Section 38 - Interim Hospital Orders:

This section empowers the courts to make an interim hospital order so that the offender's response in hospital can be evaluated without any irrevocable commitment on either side to this method of dealing with the offender if it should prove unsuitable. The aim of this section is to assist both the courts and the hospital in making any determination of whether it is appropriate to make any hospital order or direction in the fullness of time.

It must be remembered that Magistrates cannot make an interim hospital order in respect of an unconvicted person.

Section 41 - Crown Courts Powers to make Additional Restriction Order:

This section gives only the Crown Court power when to make a restriction order in addition to making a hospital order, this will restrict discharge.

Section 135 - Warrant to Search for and Remove Patient's:

If there is cause to suspect that a person suffering from a mental disorder AND has been ill-treated, neglected or not kept under proper control OR is living alone and is unable to care for themselves, an ASW can seek a warrant from a Magistrates court. This warrant allows the police, accompanied by an ASW and a doctor to enter locked premises. The doctor MUST attend as they can advise whether the patient should be removed to a "place of safety" pending an application under Part II of the Act. Detention under s. 135(1) while can only be for 72 hours while arrangements are made to assess.

Section 136 - Mentally Disorder Persons Found in Public Places:

This order authorises a police officer who finds a person who appears to be suffering from mental disorder, in a place to which the public have access, to remove him/her to a place of safety. The grounds for admission/detention are that the police officer may remove to a place of safety if the person appears to be in immediate need or care or control AND the police officer thinks it is necessary to do so in the person's interest or for the protection of other persons.

A person removed to a place of safety under this order may be detained there for a period not exceeding 72 hours in order for him to be examined by a registered medical practitioner, to be interviewed by an ASW and for arrangements for his/her treatment or care to be made.

Part IV - Consent to Treatment.

Sections 56 to 64 of the Mental Health Act 1983; The Memorandum; the Code of Practice and the Mental Health Act Manual:

The definition of consent "is the voluntary and continuing permission of the patient to receive a particular treatment, based on an adequate knowledge of the purpose, nature, likely effects and risks of that treatment including the likelihood of its success and any alternatives to it."

As a general rule, excluding Electroconvulsive Therapy (ECT) and special treatment, patients on long-term detention orders (including s.2) can be treated for mental disorder for three months with or without their consent. This means treatment for mental disorder only. After three months a Form 38 must be completed by the RMO if the patient consents to the treatment to be administered. If the patient does not consent or is unable to give consent to treatment, the MHAC must be contacted for a second opinion. If treatment is to continue, a Form 39 must be completed by the Commission doctor.

If a period of three weeks or more occurs between a Form 39 being completed and the treatment being administered, it is good practice to request a new second opinion.
Change of Treatment:

If the RMO wishes to change the treatment prescribed, the patient's consent must be sought. If the patient consents, the RMO must complete Form 38. Where the patient is incapable of giving consent, or refuses to consent, the MHAC must be contacted.

Blood Samples:

Under the Act "treatment for mental disorder" does not explicitly include the taking of blood samples. Especially when certain medication is given which requires that regular blood samples are taken, e.g. Clozapine. In this case a patient detained under section 3 who is not consenting to could be given Clozapine against their will but not the blood tests which are required for this treatment. The MHAC in June 1993 issued a Practice Notice on this problem, which stated, "Having considered the legal, pharmacological and medical advice received, the Commission concludes that the administration of medical treatment under Part IV of the MHA includes such measures as are necessary and appropriate to ensure that the medicine is administered efficaciously and safely in accordance with good medical practice."

Section 57 - Treatment requiring consent and a second opinion:

Psychosurgery or the sexual implantation of hormones (to reduce the male sexual drive) cannot be given to any patient, whether formal or informal, without the patient's consent and a second opinion. If at any time a previously consenting patient withdraws their consent treatment must not be given. Even if the patient does consent, the consultant must contact the MHAC who will send a doctor appointed by them, as well as two non-medical people, to consider the validity of the consent.

Section 58 - Treatment requiring consent or a second opinion:

This section covers medication for mental disorder after the expiry of three months on a detaining order, and ECT. ECT may be administered if the patient consents or, if not a second opinion must be obtained (Form 38 always required).

Section 60 - Withdrawal of consent:

If at any time a patient withdraws their consent to treatment given under s.57, treatment must not be given. If withdrawal of consent to any treatment under s. 58 the MHAC must be contacted to send a doctor who will consider the case. Treatment cannot be administered until the MHAC doctor has completed a Form 39 (unless s.62 applies).

Section 62 - Urgent treatment:

This allows treatment when the procedure laid down under s.57 and 58 cannot be complied with due to an emergency, for example, an urgent need to administer ECT to a non-consenting patient whose condition would seriously deteriorate before an MHAC doctor was available to complete a Form 39.

The use of s.62 applies to any treatment which is:
· Immediately necessary to save the patient's life
· Immediately necessary to prevent a serious deterioration of their condition(provided the treatment is not irreversible)
· Immediately necessary to alleviate serious suffering by the patient (provided the treatment is not irreversible or hazardous)
· Immediately necessary and represents the minimum interference necessary to prevent the patient from behaving violently or being a danger to themselves or others (provided the treatment is not irreversible or hazardous).
· Treatment is considered irreversible if it has unfavourable irreversible physical or psychological consequences.

This kind of treatment should only be applied with the consent of the RMO.

Section 63 - Treatment not requiring consent. "The consent of the patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, not be treatment falling within s.57 and 58, if the treatment is given by or under the direction of the RMO." Medical treatment is defined in s.145 of the MHA as, "including nursing, and care, habilitation and rehabilitation under medical supervision." This may include therapeutic activities, in particular those which relate to psychological and social.

Hospital Managers.
The criteria for the Hospital Managers or the MHRT to consider before allowing a person's appeal against detention are the following:
· Is the patient still suffering from mental disorder?
· If so, is the disorder of a nature or degree which makes treatment in a hospital appropriate?
· Is detention in hospital still necessary in the interests of the patient's health or safety or for the protection of other people?

If the panel is satisfied from the evidence presented to them that the answer to ANY of these questions is "no", the patient should be discharged.

In cases where the RMO has made a report under s.25 (1), the managers should not only consider the three questions above but also the following question:
· Would the patient, if discharged, be likely to act in a manner dangerous to other persons or to him or herself?

The Impact of The Human Rights Legislation.

There has been the European Convention on Human Rights where UK citizens have had redress before the European Court of Human Rights (ECtHR), which was in order to protect certain freedoms and rights of European citizens. However, on 2nd October 2000 the UK Government incepted The Human Rights Act 2000 which allowed for the majority of the articles and protocols under European Human Rights legislation to become part of national law by primary legislation. This then gave UK citizens rights of address before domestic courts on points of possible human rights violations.

The Human Rights Act, although not inordinate in length, is too long to reproduce here even with copyright permission. There will follow a brief summary of the provisions under the Human Rights act and how it has, to date, been implicated in some decisions and the additional secondary legislation to correct a defect in the Mental Health Act 1983.

Where any legislation is in conflict with the Human Rights Act then the Human Rights Act must prevail. Where there is incompatibility between current domestic legislation and the Human Rights Act, then such incompatibility must be referred back to the Government. In terms of the Mental Health Act 1983 the first piece of secondary legislation has been enacted in The Mental Health Act 1983 (Remedial) Order 2001. This has been to correct human rights defect in sections 72 and 73 of The Mental Health Act 1983 and effectively caused the re-drafting of the sections in order to become compatible with the Human Rights Act.

Below is a brief sample of the Human Rights Act with some current case-law that has already been determined under this Act:

· S.1 - Introduction and The Convention Rights
· S.2 - Interpretation of Convention Rights where a Court or tribunal determining a question which has arisen in connection with a Convention right must take into account any judgement, decision declaration or advisory opinion of the ECtHR or opinion of the Commission of Human Rights.

· S.3 - Interpretation of Legislation: So far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

· S.4 - Declaration of Incompatibility: If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. This applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. For the purposes of The Mental Health Act 1983, the MHRT has been declared a 'court'.

· S.5 - Right of Crown to intervene: Where a court is considering whether to make a declaration of incompatibility, the Crown is entitled to notice in accordance with rules of court and where this applies the Minister of the Crown, member of Scottish executive, Northern Ireland Minister and Northern Ireland department, is entitled, on giving notice to be joined as a party to the proceedings.

· S.6 - Acts of Public Authorities: It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

· S.7 - Proceedings: A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by s.6 (1) may bring proceedings against the authority under this Act in the appropriate court or tribunal, or rely on the Convention right or rights concerned in any legal proceedings, but only if they are or would be a victim of the unlawful act.

· S.8 - Judicial remedies: In relation to any act (or proposed act) which is found to be unlawful, the court or tribunal may grant such relief or remedy or make an order contained within its powers that would be just and appropriate. Damages though, may only be awarded by a court which has the power to award damages or to order the payment of compensation within the context of civil proceedings.

· S.11 - safeguard for existing human rights: where a person's reliance on a Convention right does not restrict - any other right or freedom conferred on them by or under any law having effect in any part of the UK or their right to make any claim or bring any proceedings which they could make or bring apart from Ss. 7 to 9.

· S. 12 - Freedom of expression: This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.

· S.13 - Freedom of thought, conscience and religion: This is where a court's determination of any question arising under this Act might affect the exercise by a religious organisation of the Convention right to freedom of thought, conscience and religion; it must have particular regard to the importance of that right.

There are further sections that are unnecessary for the purposes of this paper. In addition to the above sections there are a number of Articles under Schedule 1 of the Human Rights Act containing the significant principles affecting the lives of UK citizens; these are:

· Article 2 - Right to life: Everyone's right to life shall be protected by law.

· Article 3 - Prohibition of torture, inhuman or degrading treatment or punishment.

· Article 4 - Prohibition of slavery and forced labour.

· Article 5 - Right to liberty and security: Everyone has the right to liberty and security. Nobody shall be deprived of his liberty in accordance with a procedure prescribed by law. Under subsection 4 of this article is enshrined the principle that anybody detained shall be entitled to have the lawfulness of that detention determined speedily by a court.

· Article 6 - Right to a fair trial: Everyone is entitled to a fair and public hearing within a reasonable time by an impartial and independent tribunal established by law.

· Article 7 - No punishment without law:

· Article 8 - Right to respect for private and family life: Everyone has the right including that to his home and correspondence.

· Article 9 - Freedom of thought, conscience and religion: This right extends to include changing their religion or belief and to manifest that religion and belief in worship, teaching, practice and observance. There are limitations which are prescribed by law for the protection of public order, health, morals and protection of the rights and freedoms of others.

· Article 10 - Freedom of expression: Including the right to hold opinions.

· Article 11 - Freedom of assembly and association: Including the right to form and join a trade union for protection of their interests.

· Article 12 - Right to marry.

· Article 13 - Prohibition of discrimination: Including the ground of sex, race, colour, language, religion, political or other opinion, national or social origin. It is this convention that The Special Education and Needs Disability Act 2001 should be specifically compatible with and one which would ensure the needs of our students along with Part II, Article 2 where there is given a right to education.

Part II, The first Protocol:

· Article 1 - Protection of Property.

· Article 2 - Right to education: No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

In respect of mental health law, there have been some challenges on some of the issues and as previously mentioned; some secondary or subordinate legislation has been enacted to remedy incompatibilities. Some of the case-law following will show how the Human Rights Act has impacted on The Mental Health Act 1983:

Ø R -v- (1) Mental Health review Tribunal, North and East London Region (2) Sec. of State for Health, ex parte H (28th March 2001).

This was a challenge relating to s.73 Mental Health Act 1983 and its compatibility with Article 5, subsection (1) and (4) of the European Convention of Human Rights. The decision was that for the purposes of human rights legislation, a patient compulsorily admitted as a patient to a hospital the MHRT is a court that should hear claims made by patients speedily and that the burden of proof should not be put upon the patient as to whether they should be discharged. This principle was enshrined in the leading case of Winterp -v- Netherlands (1979) 2 EHRR 387 where it was held that an individual should not be deprived of his liberty "unless he has been reliably shown to be of unsound mind." It was not for the patient to show that he was not of unsound mind. From the arguments of that case a declaration of incompatibility was granted by the Court of Appeal.

Ø Application made of KB, MK, JR, LB and TB and The MHRT and The Secretary of State for Health (as an interested party). Administrative Court 23rd April 2002.

This concerned Article 5(4) where repeated adjournments of the MHRT of a patients' detention were breached. As stated above, for the purposes of human rights the MHRT is a court which as such must convene speedily in order to determine the lawfulness of a patients continued detention. This is in contradiction of article 6 which requires a trial in a civil or criminal case to be heard 'within a reasonable time'.

Ø R -v- East London and The City Mental NHS Trust TLR 28/2/2001

In this case a patient challenged an application to be re-admitted after being granted discharge by the MHRT where there had been no change in circumstances, but which had been deferred for a period of seven days. However, before the release could be effected the patient was once again detained under s.3 MHA 1983. It was argued that if the relevant professional could re-admit the patient without any change in his circumstances occurring, then the tribunal would be robbed of its status as a court under Article 5(4) and that would be a violation of the principles contained in human rights legislation. This argument was rejected by The Court of Appeal who stated that mental illness, by its sheer nature, had fluctuating symptoms and the relevant professionals were therefore, not bound by an earlier tribunal decision. As such, the tribunal fully satisfied the requirements of Article 5(4).

The above are just three of a selection of cases that have been decided under Human Rights legislation. There are many more. Presently the Government are in the process of drafting a new Mental Health Act where the green paper has been put out for consultation with health care professionals and all those that take an interest in mental health and the law. There are many articles on the internet which address this and which contain that organisations considerations of the new Mental Health Act. Presently no one really knows when the new Act will become law, but the year 2005/2006 has been suggested. Meanwhile, one would expect there to be more and more challenges under The Human Rights Act along with any further suggested incompatibilities with the current Mental Health Act 1983.

Some suggested areas where future test cases may be determined, could be: the unjustified use of restraint or the use of handcuffs during assessment or conveyance to
Hospital or patients have no choice as to the identity of the nearest relative or poor quality of care resulting in the receipt of inhuman or degrading treatment.

Impact of Disability Discrimination Act 1995 and the Special Educational Needs and Disability Act 2001.

I do not intend to go into this in any great detail but to give a general overview of what a lecturer may come up against.

Under The Disability Discrimination Act 1995 (DDA) at Part I, section 1defines the meaning of disability as being:

"a person has a disability for the purposes of this Act if he has a physical or mental impairment which has substantial and long-term adverse effect on his ability to carry out normal day-to-day activities and in this Act "disabled person" means a person with a disability."

In terms of a mental disorder, many colleges will know of any potential or actual student with such a disability and will therefore be subject to those rules governing discrimination. However, where the problems may arise with this new legislation may well be with students who have a mental disorder in that there may well be some incompatibility between the needs of the student and the needs of the educational establishment to not allow the student to disrupt the rest of the class. One thing is certain is that the administrators at the colleges and universities will have their work cut out in ensuring that ALL students are not disadvantaged, and that includes a disruptive student suffering from a mental disorder.

Of course under the Special Educational Needs and Disabilities Act there is a defence under s.28S (3 and 4) where the responsible body did not know of or could not reasonably be expected to know of the fact that the student was disabled.

For the student who is suffering from a short-term psychosis brought on by drugs, it is submitted that this would not be classed as long-term adverse effect on his ability to carry out normal day-to-day activities, and therefore does not come under any of the disabilities legislation, including SENDA. But this will have to be carefully investigated as to the nature and length of the psychosis and whether the drug abuse is continuing and therefore the likely continuance of the psychosis and any treatment.

However the new legislation is to be administered, one thing is sure, that in terms of mental disorder, colleges and universities will have to be very careful as to their treatment of such sufferers. Physical disabilities can be easily seen and therefore dealt with in a more structured programme of approach. But in the realms of mental disability the issues are not always very clear cut and as can be seen by the earlier notes, there are many and various mental disorders, many of which already give the sufferer delusions of persecution. Under this Act colleges and universities will have to be much more careful in their approach to sufferers of mental disorders. It will of course mean that until there are some specific cases brought before the courts, the Act will not be tested and interpretations as to the meaning of certain parts of the Act will not be given. This Act should have been drafted without any incompatibility with The Human Rights Act 2000, but do not let that fool anybody into thinking that no human rights violations may arise and therefore, be challenged.

As guardians of education standing at the cutting edge of admission and teaching and administration slip-ups could occur. The fact that more and more people in the post-16 sector need help with key and basic skills may suggest that children in pre-16 education may not be obtaining their basic rights to an education or be degraded in their receipt of said education.

What all of this means and what I have tried to give a comprehensive paper on is that people with mental disorders do not present themselves readily with a disability and unless they inform the college of such, then there is a defence. However, as one can see, there is a lot of legislation out there that one may become subject to, do not rely on any ignorance as ignorance of the law is no defence. Ensure that administratively your college or institution is well situated to ensure your survival in terms of teaching and in terms of staying within the law.

Information for this paper has been drawn from many different sources which I have tried to acknowledge in full in the bibliography below. There is much information that is out there but what I have tried to do with this paper is to bring a lot of the information together, essentially for those colleagues who were required to attend the PGCE and in educational establishments, but hopefully in a wider context for those involved in some way in either the conduct of mental health and welfare or in representing patients who happen to be the recipients of treatment under the auspices of the Mental Health Act 1983, and finally, just to anyone else who may be interested. Thank you for taking the times to read the information and views not necessarily held but critically put in order to stimulate your intelligence to consider any problems that may or may not be forthcoming in any walk of life in which you may reside.

Disclaimer: I do not profess be an expert on any aspect of the area of law as stated and this paper is not intended to be taken as the giving of advice. If advice of any kind is required then it must be sought in the first instance from solicitors' with particular expertise in each area of law so addressed.


Department of Health and Welsh Office (1999) Mental Health Act 1983 Memorandum on Parts I to IV, VIII AND X.

Department of Health and Welsh Office (1998) Mental Health Act 1983 Code of Practice.

Richard Jones, The Mental Act Manual (1996) 5th Ed.

The Bethlem and Maudsley NHS Trust (1999) The Maze, Mental health act 1983 Guidelines (Revised 1999).

Manchester Mental Health Partnership (March 2000) The Mental Health Act Training Package.

Manchester Mental Health Partnership, Section 23 Mental Health Act 1983, Procedural Guidance on Hospital Managers Hearings

Manchester Mental Health, Ss. 23 & 25 Mental Health Act 1983, Procedural Guidance on A Nearest Relative's Order to Discharge A Detained Patient.

Christopher Curran (Dec 2000) Mental Health Law, Policy & Practice 2000

Mental Health Act Commission Guidance Note (Nov 1998) Scrutinising and Rectifying Statutory Forms for Admission Under The Mental Health Act.

Inhealth, June 2001, Reynolds Porter Chamberlain.
Human Rights and Mental health Wrongs.

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Disability Discrimination Act 1995 (c.50),, date accessed July 9th 2002

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