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Powers of Detention Under the Mental Health Act 1983

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Published: 9th Jul 2019

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Title: Outline and explain the powers of detention in Part 2 of the Mental Health Act 1983, and evaluate critically the reforms introduced by the Mental Health Act 2007 to these powers.Use case law examples in your answer where appropriate.


In order to evaluate the reforms that have been introduced by the Mental Health Act 2007 it is necessary to examine the powers that were originally in existence under the 1983 Act. From this it will be possible to assess whether the reforms have given greater powers with regard to detention or whether the new Act has made it more difficult for the authorities to detain patients. In order to demonstrate the powers of the 1983 Act case law will be referred to. If cases can be found that have been heard since the introduction of the 2007 Act these will also be included so that a comparison can be made between the sentencing powers afforded by both Acts. If no such cases exist then the essay will propose possible decisions that the court might make using the 2007 Act.

Powers of detention under Part 2 of the Mental Health Act 1983.

Part 2 of the Mental Health Act allows for a person believed to be suffering from a mental health problem to be detained for assessment and in some cases treatment[1]. There are 3 ways in which a person might be able to be detained under the 1983 Act. Section 2 of the Act deals specifically with admissions for assessment, and can only be achieved following an application made either by the patient’s nearest relative, an approved social worker or a person, or a person authorised by the patient or by the court to act on behalf of the patient.

A person making such an application must have seen the patient within the last 14 days and the application has to be supported by 2 registered medical practitioners. One of the medical practitioners supporting the application must be qualified in psychiatry. It is generally the duty of the applicant to arrange to transport the patient to the hospital, however if they are having difficulty with the patient they can delegate the role of transporting the patient to ambulance staff. In some cases force may need to be used in order to get the patient to the hospital. Such force as is necessary is generally allowed so long as the force used is not excessive.

In order for an application for detention to be successful the patient must be suffering from mental disorder, the degree of which warrants detention in hospital for assessment. The courts will also need proof that the patient ought to be detained ‘in the interests of his own health or safety or with a view to protection of other persons.’ Anyone that is admitted under s2 can be kept in hospital for up to 28 days. Admissions cannot be renewed after the 28 days.

All patients admitted under s2 have to be told of their legal position and rights and are entitled to apply to have the case reviewed by a mental health tribunal within the first 14 days of detention.

Further detention of a mental health patient can be sought under s3 of the 1983 Act. s3 allows for long-term compulsory detention for treatment[2]. The same procedures required for admission under s2 apply under s3 with the added proviso that the nearest relative must be consulted if it is a social worker that has made the application for the detention of the patient. Relatives are entitled to object on behalf of the paper. Where it is deemed essential that a patient is admitted and the relatives refuse court authority for the admission can be requested thereby out ruling the wishes of the relative.

Admissions under s3 need to satisfy three criteria, these being that the patient is suffering from severe mental impairment, mental illness, psychopathic disorder or mental impairment; that the treatment should prevent the patient from further deterioration and that the patient needs to be in hospital either for the safety of himself or the safety of others. Under this section the patient can be forced to have treatment regardless of their objections[3].

Any admissions that are granted can allow the hospital to detain the patient for up to 6 months. Unlike s2 detentions under s3 can be renewed. The first renewal is limited to a further 6 months but thereafter the renewals can be for 12 months at a time. It is obvious from this that detentions can become indefinite. Each renewal application has to be considered and the medical officer making the decision has to believe that further treatment will possibly alleviate the patient’s condition or will prevent their condition from deteriorating. If the medical officer believes that the patient would be unable to care for himself of is likely to be seriously exploited if the detention came to an end then the medical officer is entitled to order the continuation of the detention of the patient.

S4 of the Act allows for emergency admissions. In these cases only one doctor needs to recommend admission. Such admissions are only valid for 72 hours. There is no need for the doctor to be a specialist in mental illness, although it is preferable that the doctor has known the patient beforehand. The person applying for the emergency admission must have seen the patient within the last 24 hours. An emergency admission can be converted into an admission for treatment but this would require an opinion from a mental health specialist and will be for a maximum period of 28 days.

Alternatives to compulsory admission

Care in the community schemes have led to increasing numbers of mentally ill patients being discharged from the hospital and the onus being placed on social services and the communities themselves to care for these. Care used to be offered to those discharged to live in the community under various orders such as guardianship orders[4] and supervision orders. Before releasing mental health patients fully back into the community the hospitals use to grant leave to patients[5]. Such leave could be revoked if the patient became non-compliant. Guardianship orders did not give enough power to those acting as guardians to be able to care properly for those patients.

Granting of leave ceased as a result of the case of R v Hallstrom[6] where it was discovered that the hospital was using their power to recall the defendant back every time his sentence was due to be brought to a close so that they could apply for an extension. Many in the community were dissatisfied by the use of supervision orders especially in the light of a number of cases of violent crimes being committed by discharged patients. The Government attempted to address this problem through legislation by introducing the Mental Health (Patients in the Community) Act 1995. It was hoped that this Act would prevent the hospitals from losing track of discharged patients so that their progress could be more closely monitored. S117 of the Mental Health Act regulates aftercare arrangements for those discharged into the community. Discharge is monitored and can be revoked and the patient can be compulsorily admitted to hospital if it is believed that the supervised discharge is not working.

It has been argued by some that the use of compulsory admission amounts to paternalistic injustice, this has been particularly asserted in cases were the person is mentally disturbed and have no physical illness. To protect against claims for wrongful detention s139 was inserted into the 1983 Act stating that

‘no person shall be liable… to any civil or criminal proceedings… in respect of any act purporting to be done in the pursuance of this Act… unless the act was done in bad faith or without reasonable care.’

It has been argued that allowing others to be able to decide when a patient should be hospitalised due to a mental health problem is paternalistic. In some instances patients have been compulsorily admitted to hospital when there was no need for this. This was the case in W v Edgell[7] in which the patient’s solicitor had asked for a psychiatrist to examine the patient with a view of transferring him back into the community. The report from the psychiatrist was worded in such a manner that the patient was forced to remain in the secure unit despite the fact that the patient posed no risk to anyone and had never committed an act of violence.

Justification for compulsory admission

Many civil rights campaigners have argued that compulsory admission is a breach of the civil rights of the patient[8]. For this reason such admissions are closely scrutinised and distinctions are made between the admissions for treatment and those for assessment. One of the biggest problems faced by those responsible for compulsory admissions is in defining mental disorder. In essence and deviation from that which is considered normal could be construed as a mental disorder.

Patients that are suffering from mental illness or severe mental impairment can be compulsorily admitted irrespective of whether treatment will be beneficial to their condition. Discharge from a mental health institution can be declined if in the opinion of the doctor dealing with the patient the condition is treatable[9]. In this case the patient had refused to undergo group therapy. The court of appeal held that care given to the defendant in a hospital setting could render the condition treatable. This same test was applied in R v Mental Health Review Tribunal ex parte Macdonald[10]. In this case the Macdonald argued that he should be discharged as his condition was untreatable. The court rejected this notion stating that his detention could be justified on the grounds that even with an untreatable condition medical treatment could still be given which might help control the disorder.

Criticism has followed mental institutions for years for the way in which person’s admitted under s3 of the 1983 Act are allowed to be detained in hospital even if it is known that the treatment will not work. Grounds for detaining patients in this way usually centre on the notion of dangerousness. Psychopathic patients are traditionally viewed as dangerous to the ordinary members of the public[11].

The Mental Health Act does not define mental illness though the courts attempted a judicial definition of mental health in W v L[12] where it was stated that ‘the words mental illness were ordinary words with no particular significance which should, therefore, be construed in the way in which ordinary sensible people would construe them’. (Lawton LJ). Schizophrenia is generally classified as a mental illness. Given that quite a few persons who are suffering from schizophrenia have been prone to violent outbursts it is hardly surprising that the condition has been regarded as a mental illness[13]. Anorexia nervosa has also been classified as a mental illness, which essentially means that sufferers can be compulsorily admitted to hospital.

Neurotic conditions fall outside the ambit of mental health, thus a person who is a compulsive risk taker would not be classed as mentally ill. Roth and Kroll (1986) felt that such neurotic conditions should be classified as a mental illness as these conditions can affect the subject’s health and are beyond the control of the subject. The medical authorities tend to disagree and only regard neurotic conditions as mental illnesses if such conditions are due to hormone imbalances rather than being psychological.

Personality disorders have been recognised as mental illnesses since the 19th century where such persons were specifically identified as psychopaths or sociopaths (Walker and McCabe, 1973). Such conditions are contained within the American Psychiatric Association’s DSM-IV. Unfortunately such conditions are imprecisely defined and anti-social conduct has sometimes led to medical treatment being given for deviant behaviour. The Butler Committee (1975)[14] expounded the opinion that the proper place for a psychopath is prison and that there was little point in trying to treat such persons on an involuntary basis. Psychiatrists have had a tendency to be unwilling to have such patients on the wards for treatment. This often means that psychopaths are placed within the prison system were no treatment will be offered.

Mental impairment as defined in s1(2) of the Mental Health Act 1983 requires that the person’s condition must be associated with abnormally aggressive or seriously irresponsible conduct’ before compulsory treatment will be ordered.

Under the Mental Health Act a magistrate has the power to issue a warrant for the removal of a person from premises where the approved social worker has reasonable cause to believe that the person is suffering form a mental disorder[15]. Such warrants will be executed by a police officer accompanying the social worker and the warrant authorises the use of force to enter the premises if necessary. The police also are allowed to remove people from public places if it appears to the officer that the person is suffering from a mental disorder. Where the police use such powers the person must then be examined by a doctor. If the doctor reaches the conclusion that the person is not suffering a mental disorder then the person has to be released immediately.

The courts can also order the detention in hospital of a person convicted or accused of an offence under s37 of the Act[16]. In order to be able to order this the court has to be satisfied that the person is suffering from a mental illness[17], severe mental impairment, mental impairment or psychopathic disorder; and the nature and degree of the disorder makes it appropriate for the detention of the person in hospital. Where the disorder is described as psychopathic the courts will need proof that the treatment will alleviate the condition of prevent the patient’s condition from deteriorating. Such actions need to be authorised by 2 doctors.

Under the Crime (Sentences) Act 1997 the Crown Court can specify the level of security under which the patient should be detained. This means that a person can be restricted to detention in a particular hospital unit and cannot be transferred to another unit without the express authorisation of the Home Secretary.

Consent to treatment and compulsory admission

The treatment of anorexia nervosa has often been through compulsory treatment. The vast majority of sufferers of this condition are minors and treatment has often been ordered under the principal of the Children Act 1989, affirming that treatment is in the best interests of the child. One of the most decisive cases dealing with this condition was Re W[18] in which the local authority applied for a transfer to a special hospital without the child’s consent if necessary under s100(3) of the Children Act 1989. In this case the girl was 16 years old and was violent towards the staff on the residential unit as well as being prone to self harm[19]. Lord Donaldson MR commenting on the features of anorexia nervosa stated that the disease

‘creates a compulsion to refuse treatment or only to accept treatment which is likely to be ineffective. This attitude is part and parcel of the disease and the more advanced the disease, the more compelling it may become[20].

Defining the condition in this manner as meant that non-consensual treatment has frequently been administered regardless of the age of the patient. Re KB[21] demonstrates this point precisely. In this case the patient was 18 years old and suffering from anorexia nervosa. She was refusing medical treatment in the form of force-feeding so the hospital asked the courts to decide whether force-feeding could be ordered under s63 of the Mental Health Act or alternatively under s145 which defines treatment as nursing, care and rehabilitation. The courts agreed that nasogastric treatment could be regarded as medical treatment[22] and therefore could be given without the consent of the patient as it was being used to relive the symptoms of the disorder. Ewbank J applied the principles adopted in Re W affirming that the patients mental illness had affected her capacity to refuse to consent to treatment. A similar order was made in the case of Riverside Mental Health Trust v Fox[23] where the 37 year old female patient was force-fed under s145 of the Mental Health Act. The judge held in this case that the feeding of the patient was an essential part of nursing and care’.

Although patients with mental illnesses can be made to have non-consensual treatment under s63 of the Act protection is given to the patient under s57[24] where the treatment proposed will involve irreversible procedures such as the destruction of brain tissue or the surgical implantation of hormones. In such cases consent is required and must be verified and certified by an appointed doctor and 2 non-medical witnesses. The appointed doctor has to certify that the proposed treatment will be beneficial to the patient. Without the consent of the patient such invasive treatment cannot be administered. If the treatment is regarded as life saving and the patient is unable to consent that s62(1)(a) of the Act gives the doctor the power to waive the need for consent.

S58 deals specifically with the use of electro-convulsive therapy and long-term drug treatment. As with s57 the consent of the patient is essential and an appointed doctor has to certify the treatment. Consent can be waived in the same circumstances as for s57 if the treatment is deemed to be necessary to save the life of the patient.

Detention under the Mental Health Act and the Human Rights Act 1998

Article 5(1)(e) of the Human Rights Act allows for the detention of a person on the grounds of ‘unsound mind’. The basis of the ‘unsound mind’ has been established through the “Winterwerp criteria”. This criteria came about as a result of the case of Winterwerp v Netherlands (1979[25]). In this case the court held that it was the burden of the State to show through objective medical opinion that the patient is suffering from a true mental disorder. It was also stated in this case that the person could not be detained just because their views or behaviour deviated from the norms of society. The court stated that the disorder must be of a ‘kind or degree’ which warranted compulsory confinement. The court also made the point that the detention will only be lawful under Article 5(1)(e) if the detention is effected by a hospital, clinic or authorised institution designed to deal specifically with mental disorders[26].

The HRA requires the detention to have justification in national law and to meet the standard of lawfulness that has been set out by the Convention[27]. It is a requirement that adequate legal protection is given to the patient to ensure that the procedure in detaining the individual is ‘fair and proper; in order to prevent the deprivation of liberty in error[28].

The introduction of the Mental Capacity Act 2005

The impetus behind the introduction of the 2005 Act came about following a Law Commission report published in 1995[29]. This report was followed by a Government consultation paper entitled [edit] Policy Statement, Making Decisions, which was issued in 1999. This paper was aimed at clarifying the decision making process in situations where the person was unable to make a decision for themselves. This led to the draft Mental Incapacity Bill in 2003 which was scrutinised. The aim of the Act was to refor the current law on how decisions could be made on the behalf of those unable to decide for themselves. Under this Act decisions can be made for those suffering from dementia or a mental condition brought on as a result of a brain injury as well as those that were born with a mental incapacity. The Act does not deal exclusively with the detention of the patient but also deals with financial matters and the appointment of deputies to act on behalf of the patient. As a result of this Act the Enduring Powers of Attorney Act 1985 was totally replaced and the Court of Protection was established within the Supreme Court.

Changes brought about by the Mental Health Act 2007

The Mental Health Act 2007 has had the effect of amending the 1983 Act and has particularly been used to introduce safeguards against the deprivation of liberty. The 2007 Act has added amendments to the Mental Capacity Act 2005 as well as extended the rights of victims through amendments in the Domestic Violence, Crime and Victims Act 2004.

The 2007 Act has amended the MCA following the case of HL v UK[30]. This case involved an autistic male who was being kept at Bournewood Hospital against the wishes of those caring for him. The case was referred to the ECHR who held that his detention amounted to a breach of Article 5(1) and Article 5(4). Article 5(1) deals with the deprivation of liberty whilst Article 5(4) gives the person detained the right to have the lawfulness of their detention reviewed by the court[31].

Under the 2007 Act the definition of mental disorder has been amended so that there is now a single definition of disorder and references to categories of disorder have been abolished. The 2007 Act has reworded the definition of Mental disorder from “mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind” to “any disorder or disability of the mind”. Under the 2007 Act clinically recognised mental disorders include schizophrenia[32], bipolar disorder, anxiety or depression, as well as personality disorders, eating disorders, autistic spectrum disorders and learning disabilities. Disabilities of the brain are only regarded as mental disorders if they cause a disability of the mind. The categories of mental disorder that were included in the 1983 Act have effectively been abolished by the 2007 Act.

Section 2 of the 2007 Act specifically tackles the issue of those with learning difficulties. Under the 1983 Act it was possible to regard such individuals as suffering from a mental disorder. The 2007 Act has had the effect of only regarding this as a disability if the person displays aggressive or irresponsible conduct that is associated with the learning disability and detention can only be ordered if such behaviour is displayed.

The criteria for detention have also been amended accordingly and an ‘appropriate medical treatment’ test now needs to be applied. This will remove the right to compulsorily detain someone unless there is an appropriate medical treatment available for the patient. This will prevent the previous abuses where patients were detained on the grounds that the condition might be treatable although the general consensus was that the treatment would have little impact on the condition of the patient. Under this test the ‘nature’ of the treatment is to be considered with reference to the particular disorder of the patient, the chronicity of the disorder and the prognosis as well as response that the patient has had to previous courses of treatment. The ‘degree’ of the treatment to be given should be in line with the manifestation of the disorder of the patient[33].

The Act also expanded the range of practitioners that could make assessments of the mental capacity of the patient. Under the 1983 Act only responsible medical officers and approved social workers where entitled to make judgments on the patients mental capacity. The role of the nearest relative was also altered under the 2007 Act. This alteration entitled the patient to have the nearest relative displaced where there are reasonable grounds for the displacement. Within the list of nearest relative the Act makes allowances for civil partners to be regarded as relatives of the patient.

The changes in the 2007 Act have replaced the responsible medical officer with that of a responsible clinician and the approved social worker with that of the approved mental health professional. A registered clinician need not be restricted to medical practitioners and can be a practitioner in psychology, nursing, occupational therapy and social work. Previously most registered medical officers were consultant psychiatrists. Approved clinician will also work alongside the responsible clinician and will carry out the functions previously performed by the responsible medical officer. An approved clinician can order the detention of a patient for up to 72 hours if they consider an admission application should be made[34].

The replacement of the approved social worker with the approved medical health professional is aimed at making the applications for admission and detention in hospital more regulated as it is considered that the mental health professional will be better suited to deciding who is in need of hospitalisation. Nurses, occupational therapists and psychologists will be eligible to become approved medical health professionals subject to suitable training.

In order to assist previously detained persons to be able to return to the community following a period of detention the Act introduced the supervised community treatment programme. This programme is designed to ensure that those that are placed back in the community continue with the medical treatment required to control their condition.

The supervised community treatment programme is only available to those patients that are detained in hospital. In order for the patient to be considered for the programme the approved medical health professional must agree that this is the most suitable form of treatment. Those on the programme are subject to conditions which will be contained within the patient’s community treatment order. Those on supervised community treatment can be recalled to the hospital[35] at any time if treatment is required and can return back to the community later if treatment is no longer required. Such patients can be admitted back into the hospital for prolonged lengths of time if extensive treatment is required to control their behaviour.

Those released into the community under the supervised community treatment scheme will have an individual community treatment order issued to them. This will detail the treatment they require to control their disorder. The ability to recall the patient back to the hospital is an essential element of the community treatment order[36]. There are 2 mandatory conditions that must be satisfied by any patient that is placed on a community treatment order. The patient must be available for medical examinations firstly so that the responsible clinician can decide whether the community treatment order should be extended and secondly so that a Second Opinion Appointed Doctor can issue a certificate for the continued treatment. The patient must also ensure that they attend regularly for medical treatment as stipulated by the responsible clinician and the approved mental health professional. Failing to attend for treatment can lead to recall back to the hospital.

The Mental Health Review Tribunal now has the power under the 2007 Act to reduce the time before a case can be referred to them by those responsible for the care of the patient[37]. The Act also made it so that there is only one such Tribunal for England.

It was noted that the 1983 Act failed to take account of the age of the patient in the treatment of their condition. Under the 2007 Act there is now a requirement that patients under 18 are accommodated in environments suitable for their age.

Independent mental health advocates are also being employed following the 2007 Act to ensure that the patient is receiving the appropriate treatment. The use of such advocates gives the patient a degree of autonomy over their treatment as it is the role of the advocate to give an independent assessment of the needs of the patient. New safeguards were also introduced into the 2007 Act dealing specifically with the use of electro convulsive therapy.

The 2007 Act has impacted on the MCA 2005 by requiring those responsible for the treatment of the patient to support the patient’s right to make a decision where possible for all procedures and not just in relation to detention.

S145 of the 1983 Act has also been reworded by the 2007 Act and now defines medical treatment as

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