Mental Health Act 1983

The Mental Health Act 1983 is a piece of statute law in England and Wales, part of the United Kingdom. It covers the reception, care and treatment of mentally disordered persons, the management of their property and other related matters. In particular, it provides the legislature by which people suffering from a mental disorder can be detained in hospital and have their disorder assessed or treated against their wishes, unofficially known as “sectioning”. Its use is reviewed and regulated by a special health authority known as the Mental Health Act Commission (MHAC).

History
The Lunacy Act 1890 gave mental hospitals or “asylums” the power to detain “lunatics, idiots and persons of unsound mind.” The Mental Deficiency Act 1913 increased these powers, establishing a Board of Control to monitor asylums. These laws were superseded after World War II by the Mental Health Act 1959.

This Act aimed to provide informal treatment for the majority of persons suffering from mental disorder, but to provide a legal framework such that such persons could, if necessary, be detained in hospital against their wishes for medical treatment in the same way that people with physical illness are treated. However, the 1959 Act did not provide clarity as to whether a legal order to detain a mentally disordered person in hospital also empowered the hospital to impose medical treatment against the person’s wishes. It had become clear by the 1970s that specific legal control of medical treatments such as psychotropic medication, electroconvulsive therapy and psychosurgery was needed in order to safeguard the rights of detained persons.

Definition of mental disorder
The term “mental disorder” is very loosely defined under the Act, in contrast to mental health legislation in other countries such as Australia and Canada. Under the Act, mental disorder means “mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind.” To many observers, this represents a meaningless circular definition or tautology. There are, however, four distinct subcategories of mental disorder stipulated in Section 1 of the Act. These are mental illness, mental impairment, severe mental impairment and psychopathic disorder.

It should be remembered that the categories mental illness, mental impairment, severe mental impairment and psychopathic disorder are legal terms that are also not well defined in the Act. Indeed, mental illness is not defined at all in the Act. Mental impairment is defined as “a state of arrested or incomplete development of mind … which includes significant impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned.” Severe mental impairment has a similar definition but with the word “significant” replaced with “severe”. Psychopathic disorder is defined as a “persistent disorder or disability of mind (whether or not including significant impairment of intelligence) resulting in abnormally aggressive or seriously irresponsible conduct.”

These categories do not necessarily correspond to medical categories of mental disorder such as those outlined in ICD-10 or DSM-IV; the type of mental disorder afflicting a particular person is very much left up to the clinical judgement of the individual doctor. However, the category “mental illness” is thought by most psychiatrists to cover schizophrenia, anorexia nervosa, major depression, bipolar disorder and other similar illnesses, “(severe) mental impairment” to cover mental retardation (learning disability) and “psychopathic disorder” to cover the personality disorders. Most commentators would assert that “psychopathic disorder” under the Mental Health Act 1983 has very little in common with other definitions of the word “psychopath”, such as that used by Hare, or the meaning of the word “psychopath” in general usage.

Unlike legislation in other countries, there are very few exclusions to these definitions of mental disorder. The Act simply states that one cannot be suffering from a mental disorder “by reason only of promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs.” Whilst this may provide an important safeguard against the use of the Act as an agent of social control, it could be argued that the very wording of this exclusion cause caries a value judgement, suggesting that promiscuity is “immoral”.

Professionals and persons involved
The Act involves specific professional roles by social workers and doctors as well as a specific role by a relative of the mentally disordered person.

An Approved Social Worker (ASW) is a social worker who has extensive knowledge and experience of working with people with mental disorders. He or she has had specific training relating to the Mental Health Act, usually lasting one year, and performs a pivotal role in the assessment and detention process under the Act.

A Section 12 Approved Doctor is a medically qualified doctor who has been recognised under Section 12 (2) of the Act. They have specific expertise in mental disorder and have additionally received brief specific training in the application of the Mental Health Act 1983. They are mostly psychiatrists, although many are general practitioners (GPs) who have a special interest in psychiatry.

A Responsible Medical Officer (RMO) is a doctor who is responsible for the treatment of mentally disordered persons who are compulsorily detained under the Act. Within the National Health Service (NHS), he or she is almost exclusively a consultant psychiatrist, other than in rare situations in which a person is detained in a general hospital setting, such as a surgical ward.

A Nearest Relative is a relative of a mentally disordered person. There is a strict hierarchy of types of relationship that needs to be followed in order to determine a particular person’s Nearest Relative: husband or wife; son or daughter; father or mother; brother or sister; grandparent; grandchild; uncle or aunt; nephew or niece; lastly, an unrelated person who resides with the mentally disordered person. Thus a person’s Nearest Relative under the Act is not necessarily their “next of kin”. A mentally disordered person is not usually able to choose their Nearest Relative but under some circumstances they can apply to a Magistrates’ Court to have an estranged Nearest Relative displaced. The Nearest Relative is important as he or she has the power to discharge the mentally disordered person from some sections of the Act.

Mental Health Act Managers are the hospital managers who are actually responsible for detaining a person in hospital. These are usually non-executive members of the board of the relevant NHS Trust and appointed lay 'Associate Managers'. Certain detained persons can appeal to the managers to be discharged from hospital and cases are heard in similar settings to those heard by the Mental Health Review Tribunal (see below).

Mental Health Review Tribunals (MHRTs) hear appeals against detention under the Act. Their members are appointed by the Lord Chancellor and include a doctor, a lawyer and a lay person (i.e. neither a doctor nor a lawyer). Detained persons have the right to be represented at MHRTs by a solicitor. Although discharge from hospital as a result of a MHRT hearing is the exception to the rule, the MHRT will often make important recommendations regarding the ongoing care of the detained person.

Civil sections
The civil section of the Act applies to any mentally disordered person who is not subject to the Criminal Justice System. The vast majority of persons detained in psychiatric hospitals in the United Kingdom are detained under one of the civil sections of the Act.

These sections are implemented following an assessment of the person suspected to be suffering from a mental disorder. These assessments can be performed by various professional groups, depending upon the particular section of the Act being considered. These professional groups include ASWs (see above), Section 12 approved doctors (see above), any doctors, registered mental nurses (RMNs) and police officers. The civil sections are outlined below.

Section 2
Section 2 is an assessment order and lasts up to 28 days; it cannot be renewed. It can be instituted following a “Mental Health Act assessment” by two doctors and an ASW. At least one of these doctors must be a Section 12 approved doctor. The other must either have had previous acquaintance with the person under assessment, or be a Section 12 approved doctor him- or herself. This latter rule can be broken in an emergency situation where the person is not known to any available doctors and two Section 12 approved doctors cannot be found. In any case, the two doctors must not be employed in the same organisation; this is intended to prevent the situation in which one doctor is unduly influenced in his or her decision to recommend detention of a person in hospital by the other doctor, who, but for this restriction, could be, for instance, his or her line manager. Commonly, in order to satisfy this requirement, a psychiatrist will perform a joint assessment with a general practitioner (GP). A Mental Health Act assessment can take place anywhere, but commonly occurs in a hospital, at a police station, or in a person’s home.

If the two doctors agree that the person is suffering mental disorder, and that this is severe enough that, despite the person’s refusal to go to hospital, he or she ought to be detained in hospital in the interest of the person’s own health, the person’s own safety, and/or with a view to the protection of other persons, they complete a medical recommendation form and give this to the ASW. The doctors do not have to stipulate which subcategory of mental disorder the person is suffering from. If the ASW agrees that there are no other viable alternatives to detaining the person in hospital, he or she will then complete an application form requesting that the hospital managers detain the person. The person will then be transported to hospital and the period of assessment begins. Treatment, such as medication, can be given against the person’s wishes under Section 2, as observation of response to treatment constitutes part of the assessment process.

Section 3
Section 3 is a treatment order and can initially last up to six months; if renewed, the next order lasts up to six months and each subsequent order lasts up to one year. It is instituted in the same manner as Section 2, outlined above, following an assessment by two doctors and an ASW. One major difference, however, is that for Section 3, the doctors must state which subcategory of mental disorder the person is suffering from i.e. mental illness, mental impairment, severe mental impairment or psychopathic disorder (see above). Another difference is that a person cannot be detained under Section 3 if his or her Nearest Relative objects to the detention.

Most treatments for mental disorder can be given under Section 3, including injections of psychotropic medication such as antipsychotics. However, after three months of detention, either the person has to consent to their treatment or an independent doctor has to give a second opinion to confirm that the treatment begin given remains in the person’s best interests. A similar safeguard is used for electroconvulsive therapy (ECT), although the RMO can authorise two ECT treatments in an emergency situation for persons detained under Section 3.

Absence or “leave” from hospital can be granted by the RMO for patients detained under either Section 2 or Section 3. The RMO will also ultimately be responsible for discharging patients from either Section 2 or Section 3. After a Section 3, a formal discharge planning meeting must be held, as stipulated in Section 117 of the Act. This makes informal plans for after-care following discharge.

Sections 4 and 5
Section 4 is an emergency order that lasts up to 72 hours. It is implemented by just one doctor and an ASW, in an emergency situation in which there is not ample time to summon a second suitable doctor in order to implement a Section 2 or Section 3. Once in hospital, a further medical recommendation from a second doctor sees the order converted from a Section 4 to a Section 2. Section 4 is not commonly used.

Section 5(2) is a doctor’s holding power. It can only be used on persons who are informally (willingly) admitted to a hospital, but who then change their mind and wish to leave. It can be implemented following a (usually brief) assessment by the RMO or his deputy, which, in effect, means any hospital doctor, including psychiatrists but also those based on medical or surgical wards. It lasts up to 72 hours, during which time a further assessment may result in either discharge from the Section or detention under Section 2 or Section 3.

Section 5(4) is a similar holding power that can be used for the same group of persons as those that may be detained under Section 5(2) (see above). It is implemented by a registered mental nurse (RMN). It lasts up to 6 hours and is usually promptly converted to a Section 5(2) upon an assessment by a doctor.

Sections 135 and 136
Section 135 is a magistrates’ order. It can be applied for by an ASW in the best interests of a person who is thought to be mentally disordered, but who is refusing to allow mental health professionals into their residence for the purposes of a Mental Health Act assessment. Section 135 gives police officers the right to enter the property and to take the person to a “Place of Safety”, which is locally defined and is usually either a police station or a psychiatric hospital ward.

Section 136 is a similar order that allows a police officer to take a person whom they consider to be mentally disordered to a “Place of Safety” (see above). Once a person subject to Section 135 or Section 136 is at a Place of Safety, they are further assessed and, in some cases, a Section 2 or Section 3 implemented.

Criminal sections
There are various criminal sections of the Act that apply to persons subject to proceedings of the Criminal Justice System. Although they are invariably implemented by a court, upon the recommendations of psychiatrists, these sections largely mirror the civil sections of the Act.

Sections 35 and 36
Section 35 and Section 36 are similar in their powers to Section 2 and Section 3 (see above) respectively, but are used for persons awaiting trial for a serious crime and provide courts with an alternative to remanding a mentally disordered person in prison.

Sections 37, 38 and 41
Section 37 is a treatment order, similar in many regards to Section 3 (see above). It is applied to persons convicted of a serious crime and represents an alternative to a mentally disordered person being punished by imprisonment or otherwise.

For persons who are deemed by the court to pose a particularly serious danger to other people, Section 37 is sometimes used in conjunction with Section 41, which imposes “restrictions” upon the terms of Section 37. In summary, this means that the Home Office and, ultimately, the Home Secretary, rather than the RMO, decides when the person can leave hospital, either temporarily (“leave”) or permanently (“discharge”).

Section 38 is an interim order, used in similar circumstances to Section 37, when it is likely, but not wholly clear, that a Section 37 will be appropriate.

Sections 47, 48 and 49
Sections 47 and 48 provide for prisoners to be transferred to a hospital for treatment of a mental disorder (specifically, either mental illness or severe mental impairment). Section 47 applies to convicted prisoners, whilst Section 48 applies to those on remand.

Section 49 provides for “restrictions” to Section 47, in the same way that Section 41 provides for “restrictions” to Section 37 (see above).

Physical illness
The Mental Health Act 1983 provides the legal framework for the assessment and/or treatment of mental disorders. It does not provide for the assessment or treatment of physical illness. There has been substantial case law to confirm this interpretation. Thus, a person who has, say, schizophrenia, as well as, say, kidney failure requiring dialysis, but who is refusing that treatment, cannot be dialysed against his or her wishes under the Mental Health Act 1983. This stands even if it is symptoms of schizophrenia inform the person’s wishes about dialysis – if, for instance, he or she believes that the dialysis machine is an extermination device planted by the CIA. In such a case, however, it might be deemed that the person lacks the mental capacity to consent to the treatment of the physical illness, in this case dialysis, and, as such, can be given the treatment, in good faith and in the person’s best interests, under common law.

Another common example of this boundary in practice is a person who has a short-lived confused state as a result of a physical illness such as an infection or a heart attack, but who is refusing or interfering with the assessment or treatment of the underlying condition. Although it is technically legal to detain such a person under Section 2 of the Mental Health Act, this is rarely carried out in practice. This is because the Act does not give doctors and nurses authority to assess or treat the physical illness.

An apparent exception to this rule is anorexia nervosa. Enforced re-feeding of severely emaciated persons with anorexia nervosa is allowed under the Act, because anorexia nervosa is classed as a mental illness and re-feeding is seen to constitute the first stage in treatment for severe cases of that mental illness.

Shortcomings
The main thrust of the Act provides power to detain persons in hospital, ultimately to treat their mental disorder. However, there is no scope for compulsory treatment in the community of mentally disordered persons. The psychiatric profession in the United Kingdom is split over whether future legislation should allow for such treatment (Crawford et al, 2000). Service user groups are overwhelmingly opposed to such legislation in the future (Mind, 2004), although a 2004 survey of mental health service users (patients) in London found that the majority would prefer to be treated against their wishes in their home rather than in hospital, and that half felt that compulsory treatment in the community would be justified (Crawford et al, 2004).

Under Sections 7 and 8 of the Act, “guardianship” allows for a mentally disordered person to be required to reside at a specific address, to attend a specific clinic on a regular basis for medical treatment, and to attend various other stipulated venues such as workplaces or educational establishments. However, most mental health professionals view guardianship as a paper tiger, in that there is no power to actually enforce the person to comply with these requirements. Furthermore, although guardianship can require a person to attend a clinic for treatment, there is no requirement for the person to accept that treatment.

Section 25, known as “supervised discharge”, can be applied to persons who are being discharged from Section 3 of the Act. It carries requirements similar to those set out above in relation to Sections 7 and 8. Section 25 can result in immediate re-detention in hospital if the conditions listed are broken, but cannot actually enforce community treatment.

It must be recognised when discussing these limitations that the Act was drafted at a time when mental health care was focused in institutions rather than care in the community. However, throughout the 1980s, 1990s and to date, there has been a huge shift in emphasis of mental health care away from inpatient treatment.

Draft Mental Health Bill
Mental health legislation in England and Wales is currently undergoing an overhaul. A draft Mental Health Bill was originally published in June 2002 and, following a period of consultation with stakeholders, has been revised. A further draft Bill was published in September 2004. With this Bill, the government aims to “strike a balance between safeguarding the rights of individual patients and protecting patients from harming themselves or others”.

The current draft Bill retains the broad definitions of “mental disorder” and “medical treatment” in the current Act and does not stipulate any exclusions. The main differences between the current Act and the proposed Bill include a lack of discretion on the part of doctors as to whether or not to recommend detention if the criteria for detention are met, the removal of the roles of ASWs and RMOs, the assessment of persons at the request of any other person, the removal of doctors from the MHRTs, the loss of the right of discharge by the Nearest Relative or RMO (or the successor of the RMO), and the need for a judge to authorise treatment orders (Zigmond, 2004).

There are widespread concerns amongst mental health professionals that the incoming legislation is based more upon an obsession of the government and media with an exaggerated notion of the dangerousness of the mentally ill, than any apparent practical shortcomings of the current Act. Critics of the Bill assert that it would mean mental health professionals being "suborned as agents of social control" (Mullen, 2005). Supporters of more restrictive legislation insist that dangerous people must be detained in hospital by doctors in the interests of public protection, regardless of whether their mental disorder can be treated (Maden, 2005).

Further amendments are likely to be made to the Bill before it reaches parliament and finally replaces the current Act. A similar review is being made to Northern Ireland’s mental health legislation (see below), whilst the Mental Health (Care and Treatment) (Scotland) Act 2003 came into force in 2005.

Rest of United Kingdom
The Mental Health Act 1983 covers only England and Wales, which collectively include over 90% of the population of the United Kingdom. Similar legislation exists in Scotland, namely the Mental Health (Care and Treatment) (Scotland) Act 2003, and in Northern Ireland, namely the Mental Health (Northern Ireland) Order 1986.