Amendments to the Mental Health Act 1983
The 1983 Act is largely concerned with the circumstances in which a person with a mental disorder can be detained for treatment for that disorder without his or her consent. It also sets out the processes that must be followed and the safeguards for patients, to ensure that they are not inappropriately detained or treated without their consent. The main purpose of the legislation is to ensure that people with serious mental disorders which threaten their health or safety or the safety of the public can be treated irrespective of their consent where it is necessary to prevent them from harming themselves or others.
The following are the main changes to the 1983 Act made by the 2007 Act:
- definition of mental disorder: it changes the way the 1983 Act defines mental disorder, so that a single definition applies throughout the Act, and abolishes references to categories of disorder.
- criteria for detention: it introduces a new appropriate medical treatment test which applies to all the longer-term powers of detention. As a result, it is not be possible for patients to be compulsorily detained, or their detention continued, unless appropriate medical treatment and all other circumstances of the case is available to that patient. These criteria abolished the treatability test.
- professional roles: it is broadening the group of practitioners who can take on the functions currently performed by the approved social worker (ASW) and responsible medical officer (RMO).
- nearest relative: it gives to patients the right to make an application to the county court to displace their nearest relative and enables county courts to displace a nearest relative who it thinks is not suitable to act as such
- nearest relative: the provisions for determining the nearest relative are amended to include civil partners amongst the list of relatives.
- Supervised Community Treatment (SCT): it introduces SCT for patients following a period of detention in hospital. SCT will allow certain patients with a mental disorder to be discharged from detention subject to the possibility of recall to hospital if necessary. This is particularly intended to help avoid situations in which some patients leave hospital and do not continue with their treatment, with the result that their health deteriorates and they require detention again – this is sometimes referred to as the revolving door.
- electro-convulsive therapy: it introduces new safeguards for patients
- Tribunal: it reduces the periods after which hospital managers must refer certain patients’ cases to the Tribunal if they do not apply themselves. It introduces an order-making power to make further reductions in due course.
- independent mental health advocacy: it places a duty on the appropriate national authority to make arrangements for help to be provided by independent mental health advocates
- age-appropriate services: it will requires hospital managers to ensure that patients aged under 18 admitted to hospital for mental disorder are accommodated in an environment that is suitable for their age (subject to their needs). This is on course to be implemented in April 2010
Amendments to the Mental Capacity Act 2005
The 2007 Act makes a number of amendments to the Mental Capacity Act 2005 (MCA). The main change is to provide for procedures to authorise the deprivation of liberty of a person in a hospital or care home who lacks capacity to consent to being there. The MCA principles of supporting a person to make a decision when possible, and acting at all times in the person’s best interests and in the least restrictive manner, will apply to all decision-making in operating the procedures.
The introduction of these MCA Deprivation of Liberty Safeguards (MCA DOLS) was in response to the 2004 European Court of Human Rights judgment (HL v UK (Application No.45508/99)) (the “Bournewood judgement”) involving an autistic man who was kept at Bournewood Hospital by doctors against the wishes of his carers. The European Court of Human Rights found that admission to and retention in hospital of HL under the common law of necessity amounted to a breach of Article 5(1) ECHR (deprivation of liberty) and of Article 5(4) (right to have lawfulness of detention reviewed by a court).
Amendments to the Domestic Violence, Crime and Victims Act 2004
The changes to the Domestic Violence, Crime and Victims Act 2004 introduce new rights for victims of mentally disordered offenders who have been detained in hospital without being made subject to special restrictions.