Mental health law

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Jurisdiction dependent.

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The Mental Health Act 1983 defines and regulates the conditions under which a doctor may treat a patient without the latter's consent. Other issues have been dealt with in the Mental Health Act 2007 which introduced:

Any deprivation of liberty is complex and perceptions of the less onerous option may well differ. For example the MHA may appear less restrictive to a healthcare worker than DOLS but the stigmata of admission under MHA might be perceived by others to promote DOLS which may have less safeguards against long term detention.

Contents

Mental Health Act (MHA)

Section 2 of the MHA

S.2 allows for the detention in hospital of a patient for assessment if he:

  • "Is suffering from a mental disorder of a nature or degree which warrants" it

and

  • it is in the interests of the patient's health or safety or for the protection of others.

An order under section 2 of the MHA lasts for up to 28 days; at the end of this time the patient should either be made informal (ie voluntary), or further detained under Sec.3. The Sec.2 can be ended at any time before this by the consultant in charge of the patient's care

Section 3 of the MHA

S.3 similarly allows for the detention in hospital, this time for treatment if he:

  • Has mental illness/severe mental impairment of a nature and degree which make such treatment appropriate;

or

  • has psychopathic disorder/mental impairment of similar nature and degree, such treatment being likely to alleviate or prevent deterioration in his condition;

and

  • it is in the interests of the patient's health or safety or for the protection of others.

An order under section 3 of the MHA lasts for up to 6 months, and is renewable by the responsible consultant. Again, it can be ended at any time by the consultant in charge of the patient's care, should they feel that the patient no longer warrants detention in hospital

Who needs to be involved?

As such detention for assessment or treatment involves removal of the patient's liberty, assessment by two doctors is required. If the two doctors make recommendations application is made usually by an Approved Social Worker (ASW) with the agreement of the next of kin.

The patient may appeal against the detention, under either section, to the Mental Health Commission.

Section 136 of the MHA

S.136 allows a constable who finds a person, in a place to which the public have access,who appears to him to be suffering from a mental disorder and to be in immediate need of care and control, to detain that person and convey him to a place of safety, which may be a police station or a hospital, for the purpose of enabling assessment of mental health and needs for care to be made by a doctor and social worker.

This assessment may involve invoking of s.2 or s.3 above

What can be treated under the MHA?

It should be noted that only treatment for the patient's psychiatric disorder can be given under the Mental Health Act. Treatment for physical illnesses cannot be given under the Mental Health Act unless the physical illness is a symptom or underlying cause of the patient's mental state.

Mental Capacity Act (MCA)

see Mental Capacity Act 2005.

Deprivation of liberty

See deprivation of liberty and deprivation of liberty safeguards. Deprivation of liberty is not permitted under the Mental Health Act 2007 save in three circumstances:

  1. it is authorised by the Court of Protection by an order under section 16(2)(a)
  2. it is authorised under the procedures provided for in Schedule A1, which relates only to deprivations in hospitals and in care homes falling within the meaning of the Care Standards Act 2000 (see Schedule A1, para 17 8)
  3. it falls within section 4B, which allows deprivation if it is necessary in order to give life sustaining treatment or to prevent a serious deterioration in the person’s condition while a case is pending before the courts

Formal documentation and review processes must exist.

Scotland

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Broadly similar principles. See Scottish Executive web-site on Mental Health

Northern Ireland

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 Similar principles enshrined in Mental Health Order 1986

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