1. The Mental Health Act 1983 (England and Wales): Legal Safeguards in Limbo

Andrew Ashworth has used the term “negative substantive justice” to distinguish this approach in the law from that generally recognized as substantive justice; namely, a form of the law that is concerned to determine that certain outcomes do take place. Procedural justice, negative substantive justice, and substantive justice may be regarded as providing a range of legal strategies—from attempts to regulate process, through attempts to determine outcomes by regulating what may not be done to individuals, to the most stringent attempts to regulate what will be done to individuals. Between them they may cover both the form and the substance of legal decisions.

Gostin L. , Perspectives on Mental Health Reform, Journal of Law and Society 10(1): 47 (1983).

See generally Mental Health Review Tribunal Rules 1983 Statutory Instrument 1983 no. 942.

See generally sections 57, 58, and 3, Mental Health Act 1983.

Gostin L. , The Ideology of Entitlement: The Application of Contemporary Legal Approaches to Psychiatry, inMental Illness, Changes and Trends (ed. Bean P. ) (Wiley, 1983).

Winterwerp. Judgment of the European Court of Human Rights, October 24, 1979.

L. Gostin, Human Rights, Judicial Review and the Mentally Disordered Offender, Criminal Law Review, 779, 782 (1982).

The civil admission of patients for treatment under section 3 of the 1983 act requires first, that the patient is suffering from a specified mental disorder of “a nature or degree which makes it appropriate for him to receive medical treatment in a hospital” and secondly, that “it is necessary for the health and safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section” (emphasis added). The equivalent section under the 1959 act (section 26) was broadly similar in its first element, but its second element referred only to the necessity that it be “in the interests of the patient's health or safety or for the protection of other persons that the patient should be so detained” (emphasis added); there was no further reference to treatment or to its being provided outside of detention in hospital (section 26[2][a][ii] and [b], Mental Health Act 1959). The same contrast arises in the criteria to assess the necessity for continued detention. The 1959 act made no reference to medical treatment at this juncture, whilst the 1983 act reiterates the admission criteria “liable to be detained in a hospital for medical treatment” and “necessary … that he should receive such treatment” (sections 43 and 123, Mental Health Act 1959, and sections 20 and 72, Mental Health Act 1983).

Section 1(3), Mental Health Act 1983.

Article 5(1)(e) of the Convention would not permit detention on the sole grounds that a person's “views or behaviour deviate from the norms prevailing in a particular society.” See note 6, par. 37.

Following the decision of X v. the United Kingdom (judgment given November 5, 1981, Strasbourg), tribunals were given the power to discharge restricted patients. These are mentally abnormal offenders, who at the point of sentence are thought to pose a risk of serious harm to the public. Previously, this power had lain solely in the hands of the Home Secretary.

See, e.g., section 3(2)(b), Mental Health Act 1983.

Stare decisis, or the doctrine that in civil matters the Court of Appeal is bound to follow its own decisions, applies less rigidly in criminal matters. In R. v. Taylor (1950) 2 K.B. 368, Lord Goddard C.J. noted that the criminal court had to deal with questions involving the liberty of the subject; this factor meant that it was the duty of the court, in certain circumstances, to reconsider decisions where the law may have been “misapplied or misunderstood.” It could be argued that since the Mental Health Act 1983 deals with matters affecting the liberty of the subject, that on questions of appeal the civil court might unusually, but properly, show greater flexibility. See also M. Zander, When the Law Lords Are Guilty of Ignoring Opinion, The Guardian, May 23, 1986.

Chiswick D. , Use and Abuse of Psychiatric Testimony, Medicine and the Law 290: 975 (1985).

Id. at 977.

The court will review findings of fact only if no reasonable tribunal on the evidence before them could have come to the same conclusion. See L. Gostin, E. Rassaby, A. Buchan, Mental Health: Tribunal Procedure (Oyez Longman, 1984), at 93.

Before Mr. Justice McCullough, Queen's Bench Division, December 20, 1985.

For those suffering from psychopathic disorder and mental impairment the test is the same for admission (section 3) and renewal (section 20). For those suffering from mental illness it is somewhat harder to obtain an authority to renew than to detain initially, while for those suffering from severe mental impairment the reverse is true. This is because for the two latter categories, at the point of renewal, it may also be demonstrated, as an alternative to the alleviation/deterioration concept, that the patient if discharged would be “unlikely to be able to care for himself, to obtain the care which he needs, or to guard himself against serious exploitation.” Section 20(4)(c), Mental Health Act 1983.

It should also be noted that section 72 requires tribunals to consider whether it is appropriate for patients to be liable to be detained. Sections 3 and 20 place their emphasis on the patient being detained.

The 1959 act had given the power to those appointed as patients' legal guardians under the act to consent on their behalf. This power was withdrawn under the 1983 act.

Mr. Justice McCullough did not address the minimum period in hospital that would constitute inpatient treatment, save to say that (1) an admission-for-assessment order (section 2) enables a patient to be detained for up to twenty-eight days and warrants his detention for “at least a limited period.” Section 3 contains no such provision. Since it may last for the longer period of six months, the judge assumed that Parliament must have thought it unnecessary to add the “limited period” order. (2) More controversially, the judge noted that the patient's health only required injections, not more general nursing—which is included in the definition of treatment; injections did not necessitate inpatient treatment.

The strategies were: (1) Making a section 3 order (admission for treatment lasting up to six months) and granting the patient leave of absence the next day. (2) Recalling a patient on indefinite leave of absence when the intention is merely to prevent him being on leave of absence for six months continuously. This may take two forms: (a) recalling a patient at the end of six months' leave for an overnight stay. This, it was thought, enabled the renewal of a section 3 order under section 20; leave of absence back into the community was granted the next day. (b) Recalling a patient at the three months' interval to enable examination by a doctor other than the responsible medical officer and certification that compulsory medication should be continued without his consent does not amount to the ending of one period of leave of absence and the start of another. Thus section 20 can only be used to renew the authority to detain a patient whose mental condition is believed to require detention for treatment in a hospital.

In comparing the 1983 act with the 1959 act, Mr. Justice McCullough might have been led astray, in that the 1983 act was a consolidating act; the major amendments to the 1959 act were made by the Mental Health (Amendment) Act 1982. However, close inspection of the 1982 (Amendment) Act reveal that sections 3, 20, and 72 were incorporated intact into the 1983 act.

Similary, section 62 of the Mental Health Act 1983 sets out the circumstances under which “urgent treatment” may be given to detained patients without the need for the patient's consent or a second opinion. The scope of section 62 is wider than that of the doctrine of necessity under common law. But it comes into force only in urgent situations where treatment is immediately necessary; it does not cover treatments that would be merely necessary or beneficial.

Supra note 17, at p. 13 of judgment transcript.

Id., at p. 27 of judgment transcript.

The MHRT system was first introduced by the Mental Health Act 1959. In discussions concerning the tribunal's purpose, the minister of health, Walker Smith, stated: “Just as the right of application to a tribunal is one of the main safeguards against improper admission under compulsory powers, so it is a main safeguard against unduly protracted detention”; Hansard, January 26, 1959.

J. Peay, Psychiatry and the Law—Who Controls Whom? (paper presented at the Second International Congress on Psychiatry, Law and Ethics, Tel Aviv, Israel, 1986).

See gen. Mental Health Act 1983, section 72.

Id., section 72(1) (“may in any case direct”) and 72(2).

The tribunal was satisfied about these reasons because: Mr. Wellbecome has made considerable progress since admission largely because he has been taking his medicine regularly. He has, however, shown very little insight into his illness and therefore the need to continue to take medicine. As on previous occasions he would almost certainly stop taking it when free of constraint and this would result in danger to his health and the safety of others.

Tribunals in restricted cases under section 73 of the act do not enjoy these specific discretionary powers, i.e., to discharge in any case or to consider questions of treatability or viability.

Wood John Sir , Detention of Patients: Administrative Problems Facing Mental Health Review Tribunals, in Psychiatry, Human Rights and the Law (ed. Roth M. and Bluglass R. ) (Cambridge University Press, 1985), at 114–22.

X v. U.K., supra note 11.

Wood, supra note 33, at 121.

It should be noted that the appointment of new members who held the view that their function was to go rather further than merely acting as a safeguard for the liberty of detained patients, but also to act as guardians of the public's safety, served to support a tendency already present within the tribunal membership. See J. Peay, Mental Health Review Tribunals: Just or Efficacious Safeguards?, Law and Human Behavior 5(2/3): 161 (1981).

Bone v. Mental Health Review Tribunal (1985) 3 All ER 330–334. The court held that where a tribunal refuses to direct the discharge of a detained patient, the tribunal must give proper and adequate reasons for its decision, so that the patient will be enabled to know whether the tribunal has made any error of law in reaching its decision.

Id.