Abstract
The issues raised by mental ill health and the treatment of those who are deemed to be mentally disordered have long been debated within health-care law. Mental health law is distinctive because it can be used to authorize involuntary detention and compulsory treatment. 1 We had originally intended to cover the law on assessing, detaining and treating those who are mentally disordered in one Five-Minute Focus on Law, but having embarked on this task it soon became clear that a summary of the law would take more than one article. In this Five-Minute Focus, Part I, we consider mental health law in England and Wales with regard to assessing and detaining mentally disordered patients. In the following edition of this journal, we will address the matter of treating such patients.
Who is mentally disordered?
The Mental Health Act (MHA) 1983 (as amended by the MHA 2007) does not talk about ‘mental illness’ or the ‘mentally ill’, but instead about ‘mental disorder’. 2 Under section 1(2) ‘ “mental disorder” means any disorder or disability of the mind’, and a person with a learning disability 3 ‘shall not’ be considered as suffering from a mental disorder because of that disability, or requiring treatment for a mental disorder unless ‘that disability is associated with abnormally aggressive or seriously irresponsible conduct on his part’. 4 Dependence on alcohol or drugs is not a disorder or disability of the mind, although such dependence may lead to disability. 5
Gaining admission to the mental health system
If a person is mentally disordered under the MHA 1983 they do not automatically become subject to the formal powers in the Act. Of those who are admitted each year to NHS hospitals with a mental disorder, only a minority will have been compulsorily detained (‘sectioned’). Indeed, the Code of Practice states that:
Before it is decided that admission to hospital is necessary, consideration must be given to whether there are alternative means of providing the care and treatment which the patient requires. This includes consideration of whether there might be other effective forms of care or treatment which the patient would be willing to accept and of whether guardianship would be appropriate instead.
6
There are three main ways by which a person can be admitted to the mental health system: informal voluntary admission, the deprivation of liberty procedure and formal involuntary detention; these are considered below. However, in an emergency a patient can be admitted under section 4 of the MHA 1983 if there is one medical recommendation that ‘it is of urgent necessity for the patient to be admitted and detained under section 2’ which, as we discuss below, authorizes detention for the purpose of assessing whether a person is suffering from a mental disorder. 7
Informal voluntary admission under the MHA 1983
Under section 131 anyone who ‘requires treatment for mental disorder’ may be informally admitted to hospital. Thus, a patient can seek treatment for themselves and their liberty will not be restricted if they are admitted via this route. This does not mean that they cannot subsequently be compulsorily and formally detained for 72 hours under section 5 of the MHA 1983, to prevent them from leaving hospital. However, if they are to be detained beyond this time, the formal powers in section 3 (which, as we discuss below, authorize detention for the purpose of treatment for the mental disorder) must be invoked. With regard to voluntary admission, treatment will be governed by the usual health-care standard – the best interests of the patient.
The deprivation of liberty procedure under the Mental Capacity Act 2005
Under the Mental Capacity Act (MCA) 2005, as amended by the MHA 2007, a person with a mental disorder who lacks capacity can lawfully be deprived of their liberty where doing so is (a) necessary to protect the patient from harm, (b) proportionate with regard to the likelihood of the patient suffering harm and the seriousness of that harm 8 and (c) in their best interests. 9 There must also be no less restrictive alternative. 10 ‘Necessary’ is not the same as convenient, and the person must be over 18, not already detained under the MHA, or subject to restrictions on their freedom in the community, and there must not be a valid and applicable advance refusal of treatment ‘for which the deprivation of liberty authorization is sought’. 11 Thus, the deprivation of liberty procedure must not be used to circumvent valid and applicable advance decisions that remain legally binding. A representative, someone the person trusts and is comfortable with, must be appointed, and if there is no such person then an independent mental capacity advocate must be appointed. 12
A court order can approve a deprivation of liberty, 13 or ‘[t]he supervisory’ body, usually the Primary Care Trust or local authority, must authorize the deprivation, and this authorization lasts 12 months. 14 It will then be subject to review by the Court of Protection, 15 and the patient or someone acting on their behalf can also apply to the Court of Protection for review. 16 A court can also issue a declaration in advance authorizing the deprivation of liberty. 17
In deciding whether to authorize the deprivation of liberty, there must be an assessment of the necessary requirements for establishing lawfulness, including an independent ‘best interests’ assessment. 18 In carrying out a best interests assessment, the assessor must consult the managing authority of the relevant hospital or care home and have regard to (a) the conclusions which the mental health assessor has notified to the best interests assessor, (b) any relevant needs assessment 19 and (c) any relevant care plan. 20 These duties do not affect any other duty to consult or take the views of others into account. An assessor must be given a copy of any relevant needs assessment carried out by the managing authority and supervisory body, or on their behalf, or any relevant care plan drawn up by the managing authority or supervisory body or on their behalf. The threshold for finding that deprivation of liberty is in the best interests of a person is high.
The deprivation of liberty procedure only operates when someone is deprived of their liberty, but the difficulty lies in how this is defined. An addendum to the Mental Capacity Code of Practice sets out a non-exhaustive list of factors, derived from the jurisprudence of the European Court of Human Rights and UK courts, which may be relevant to determining whether there has been a deprivation of liberty:
‘Restraint is used, including sedation, to admit a person to an institution where that person is resisting admission; Staff exercise complete and effective control over the care and movement of a person for a significant period; Staff exercise control over assessments, treatment, contacts and residence; A decision has been taken by the institution that the person will not be released into the care of others, or permitted to live elsewhere, unless the staff in the institution consider it appropriate; A request by carers for a person to be discharged to their care is refused; The person is unable to maintain social contacts because of restrictions placed on their access to other people; The person loses autonomy because they are under continuous supervision and control.’
21
Detention under the MHA 1983 and deprivation of liberty under MCA 2005
Detention under the MHA 1983 and deprivation of liberty under MCA 2005
‘It might be necessary to consider using the MHA rather than the MCA if:
It is not possible to give the person the care or treatment they need without carrying out an action that might deprive them of their liberty; The person needs treatment that cannot be given under the MCA (for example, because the person has made a valid and applicable advance decision to refuse all or part of that treatment); The person may need to be restrained in a way that is not allowed under the MCA; It is not possible to assess or treat the person safely or effectively without treatment being compulsory (perhaps because the person is expected to regain capacity to consent, but might then refuse to give consent); The person lacks capacity to decide on some elements of the treatment but has capacity to refuse a vital part of it – and they have done so, or; There is some other reason why the person might not get the treatment they need, and they or somebody else might suffer harm as a result.’
22
People with a mental disorder can be compulsorily admitted to hospital for assessment for up to 28 days under section 2 of the MHA 1983, and for treatment for up to six months initially (under section 3). Applications under these sections can be made by the person's nearest relative but most are made by an approved mental health professional, usually a social worker. Two medical practitioners must support the application, one of whom must be approved under section 12(2) of the MHA 1983 ‘as having special experience in the diagnosis or treatment of mental disorder’, and one must have ‘previous experience with the patient’. Once the initial assessment period under section 2 has expired that patient must be discharged, admitted as an informal patient or detained for treatment under section 3. When the initial treatment period under section 3 has expired, this can be renewed for another six months, and after that the patient can be detained for up to a year, with possible annual renewal.
For section 2 to apply, the person must be suffering from a mental disorder of ‘a nature or degree which warrants [their] detention … in a hospital for assessment’ and they ‘ought to be detained in the interests’ of their health or safety or to protect others. 23 With regard to section 3, the ‘nature or degree’ of the mental disorder must make ‘it appropriate for him to receive medical treatment in hospital’, it must be ‘necessary’ for the patient's health or safety or the protection of others that treatment is provided and it cannot be without their detention, and ‘appropriate medical treatment is available for him’. 24 Medical treatment includes psychological intervention, specialist mental health habilitation, rehabilitation and care, 25 and must have the purpose of ‘alleviat[ing] or prevent[ing] a worsening of, the disorder or one or more of its symptoms or manifestations’. 26 The purpose of treatment must thus be to alleviate or prevent deterioration; it does not have to be likely to have this effect.
Summary points
The MHA 1983 has been substantially amended by the MHA 2007;
The MHA 1983 relates to those with mental disorders;
Those with mental disorders can gain access to the mental health system by
Seeking voluntary informal admission under the MHA 1983; The deprivation of liberty procedure under the MCA 2005; or Formal involuntary admission under section 2 (assessment) or section 3 (treatment) MHA 1983.