This paper will look at the 1983 Mental Health Act; it will consider the compulsory detention of patients and the lawfulness of such detention under the European Human Rights Act, and look at recent proposals for compulsory treatment in the community. The 1983 Act is an old and long piece of legislation. It is in fact older than it appears, for all that happened in 1983 was that old legislation dating back to 1959 was helpfully consolidated. [Brayne. H & Carr. H 2003. ] Provision for people with mental health problems are the responsibility of local health authorities and social service departments.

Social service departments have their social work functions carried out by approved social workers that are specialists in mental health. Every social services department must have enough approved social workers to deal with admissions of mental patients. Approved social workers, along with two doctors need to be present before a mental health sufferer can be sectioned under the mental health act. Sectioning is compulsory admission to hospital; the Act states that ‘compulsory admission should only be exercised as a last resort’. Under section 2 of the mental health act a person will be detained for up to 28 days.

The grounds for admission under section 2 are; a person is suffering from a mental disorder, which warrants admission to hospital for assessment and treatment. In addition, they need to be detained in the interests of their own health or safety or the safety of others. On completion of the 28 days, a patient will be discharged, unless they remain in hospital as an informal patient, or authorisation is given for detention and treatment under section 3. Under section 3, a patient may be detained for up to six months. An approved social worker cannot apply for detention under section 3 against the wishes of the nearest relative.

Emergency 72-hour admissions can be made on the recommendation of one doctor in cases of urgent necessity. The majority of admissions, 90%, are informal, although some of these maybe due to the threat of compulsory admission. Informal patients are legally free to leave hospital and can refuse treatment in the same as any other patient. However, ‘holding powers’ are available to medical practitioners in the event of a person wishing to leave. A doctor can hold a patient for 72 hours and, where the doctor is not available, a nurse can detain a patient for 6 hours.

Once a person is compulsorily detained, the managers must inform them of the grounds for detention, and their rights to a discharge and to apply to the Mental Health Review Tribunal. If the application was by an approved social worker, the nearest relative must be similarly informed unless the patient objects to this. Where the application was by the nearest relative, the managers must notify the patient’s local social services department; a social worker must then interview the patient and provide the hospital with a social circumstance report.

The report should set out not only the history of the patient and the disorder, but also state whether alternative methods of dealing with the patient are available and appropriate. Mental health professionals similarly make decisions about supervision in the community. Reservations about the absence of ‘due process’ under the Act, and the dominance of medical opinion in decisions to detain individuals have been voiced, but re-introduction of judicial processes was not formally proposed. [Department of Health and Social Security, 1978. However, the European Convention on Human Rights has caused the issue to be re-visited, as it includes the principle that deprivation of liberty must be determined in an independent forum. In the UK, the Convention has been incorporated into the Human Rights Act, 1998. [Heginbotham and Elson, 1999]

The recently published consultation on the Mental Health Act proposes changes, which would, if enacted, create a system of tribunals, which would transfer decision making into an independent forum. Reform of the Mental Health Act 1983, 1999] Article 5 of the European Convention on Human Rights requires there to be a mechanism for challenging the lawfulness of detention of any person. The existence of the Mental Health Review Tribunal, save in the case of prisoners transferred to hospital, fulfils the form of such requirement, but does the practise of the Tribunal meet the substance of the right? The power of the authorities to re-section the newly released patient has not stood up to human rights scrutiny.

The discharge by the Tribunal does not prevent a compulsory readmission-taking place under section 2, but, if there has been no change in circumstance since the Tribunal discharged the patient, this has been ruled to be an abuse of the patient’s right to liberty. Another challenge may arise under the three-year automatic referral to the MHRT; this period may be too long. It could be argued that three years without being able to challenge the lawfulness of the detention is effectively a denial of the right itself.

Legislation is not compatible with Human Rights decisions. The MHRT has no duty to release a patient unless it is satisfied that the person does not suffer from a mental condition. Essentially, this means that a tribunal can, in theory, wait until it is proved that the condition no longer exists before ordering release, putting the burden of proof on the detained patient. [Brayne&Carr]Government white paper better services for the mentally ill, published in 1975, recommended a move towards community care and day hospitals.

During the 1980’s people were moved out of hospitals and into the community. The 1991 NHS and Community Care Act has given further impetus to this policy. [Young. P] Some areas of the community have mental health centres, these are multi-agency centres, with a number of different workers involved in the services offered to mental health sufferers. These include psychiatrists, community psychiatric nurses, psychologists, and a social worker. These centres will provide services and treatments and refer patients to other services.

Social workers provide information and advice and offer support to service users and their families. Community psychiatric nurses may provide, and or monitor medication, and provide counselling and support. Since the introduction of community care, there has been a great deal of publicity concerning violence involving people with mental health problems. Jenny Morrison, a social worker was stabbed and killed by Anthony Joseph a paranoid schizophrenic. Joseph was living in a half way hostel where staff knew he had stopped taking his medication but could do nothing about it.

Jenny should have visited Joseph with the hostel manager, but she was late, as her car broke down so saw him alone. [Young. P] Incidents like these, although very rare, maybe behind the proposed compulsory treatment orders presently been considered by the government. In July 1998, the then health minister announced a review of the mental health act 1983. New powers needed ‘included, where necessary, in the community’, to ensure people did not stop taking their medication. Under current legislation, only patient’s compulsory detained in hospital can be given treatment against their will.

The draft mental health bill sets out the governments proposed reforms of the 1983 mental health act. Legislation set out in this bill would permit the compulsory treatment of mentally ill people being cared for in the community, as well as hospital in-patients. Enforcing psychiatric treatment in the community has become a feature in Australia. Community treatment orders were implemented in 1997 as part of the new mental Health Act. Community treatment orders in New South Wales are mostly used for unmarried male patients with schizophrenia.

Initiatives in the United Kingdom have included extended leave for patients leaving hospitals. The extended leave provision of the Mental Health Act has been evaluated as a proxy for the community treatment order, although it does not cover compulsory treatment in the community. Sensky et al found that extended leave improved adherence, reduced time spent in hospital, and reduced levels of dangerousness in comparison with a control group of patients of similar age, sex, and diagnosis. [Sensky. T. 1988)] A study of the effectiveness of compulsory treatment in the community provided mixed results. Although orders reduced admission rates and bed days, the effect is no greater than that seen in a group of patients who are not on such an order, after adjustment for possible confounders. This study therefore raises questions about the effectiveness of such evasive procedure as enforcing treatment in the community. If reduced hospital admissions and length of stay in part define efficacy, the results suggest that the policy is no more effective than not enforcing community treatment.

Professor Genevra Richardson was appointed to chair a group to look at options for the new mental health act. A compulsory order would require compliance with treatment in either hospital or the community. Fifteen different organisations have serious reservations about compulsory treatment orders and the way they will be implemented. One of the reasons given for compulsory treatment orders is an alleged problem of violence by people with mental health problems. In general, psychiatric patients are not a significant danger to the public.

An article in the British Journal of Psychiatry has shown that whilst overall there was a five-fold increase in homicide between 1957 and 1995, there was a decline of 3% per annum in contribution to these figures by people with mental illnesses. Even in the case where mental health patients fail to take their medication, this is rarely the most important issue. Most common contributing factors are, inadequate care planning and lack of inter-agency working. Introducing compulsory treatment orders fails to tackle the root of the problem and will have only a small effect on homicides.

If these orders deter people from seeking services, this could lead to an increase in violence by mentally ill people. [Morgan, S & Hemming, M]. The problem with mental disorder, from a legal perspective, is that the sufferer is sometimes not seen to be the best person to make decisions about their welfare. Society expects judgements to be made by experts as to what is in the patients best interests; but the power of the professionals to override the wishes of the patient, or sometimes the patients family, is a power to deprive a person of basic liberties. Brayne & Carr] In considering, issues surrounding mental health it may be argued that the powers of compulsory detainment could breach a persons human rights. A discharge by the mental health tribunal does not prevent a compulsory readmission taking place under section 2-but, if there is no change in circumstances since the tribunal discharged the patient, this may be an abuse of the patient’s right to liberty. The three-year automatic referral to the MHRT may be seen as been to long.