Civil Admissions under the Mental Health Act 1983 - Legal Criteria
| Author | Michael Butler |
| Pages | 31-39 |
Part Two
Civil Admissions under the Mental Health Act 1983
Chapter 4
Civil Admissions under the Mental Health Act 1983 – Legal Criteria
4.1 INTRODUCTION
Although anyone with a mental disorder may be liable to detention under the MHA 1983, it cannot be right, plainly, that he is detained on the basis of that mental disorder alone. Detention under the Act carries with it a loss of liberty and, potentially, highly invasive treatment without consent, and there must therefore be a mechanism for deciding that the consequences of the disorder are serious enough to justify such an outcome. In other words, for deciding, as was found to be required in Winterwerp v The Netherlands (Application No 6301/73) [1979] ECHR 4 (see para 2.7.2), that the mental disorder is ‘of a kind or degree warranting compulsory treatment’.
The mechanism is provided by sections 2 and 3 of the MHA 1983, the main civil detaining provisions of the Act, each of which establishes a seriousness threshold which must be crossed in order to justify either detention in the short term for assessment (section 2) or detention in the longer term for treatment (section 3). According to each, certain criteria must be met before detention can be considered. These criteria are considered in this chapter.
4.2 DETENTION FOR ASSESSMENT
4.2.1 Section 2 of the Mental Health Act 1983
A person with mental disorder may be detained in the short term for assessment under section 2 of the MHA 1983. Detention will be for a period of up to 28 days and the consequences are considered in more detail in Chapter 8. Detention for assessment may only be authorised, however, if the person meets the relevant criteria, which are set out in section 2(2). Accordingly, a person may only be detained for assessment where:
34 A Practitioner’s Guide to Mental Health Law
(a) he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and
(b) he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.
In other words:
• Is there a mental disorder?
• If so, is it of a nature or degree which warrants detention in hospital for assessment or assessment followed by treatment?
• If so, ought the person to be detained in the interests of his own health or safety, or with a view to the protection of others?
If the answer to any of these questions is ‘no’, the person may not be detained.
4.2.2 Applying the criteria under section 2 of the Mental Health Act 1983
To begin with, the patient must be ‘suffering from mental disorder’. The meaning of the term ‘mental disorder’ is considered in Chapter 3. The requirement that the patient is ‘suffering’ from mental disorder means no more than that the patient has a mental disorder, and should not be interpreted to mean that the patient must be symptomatic.
Next, the mental disorder must be ‘of a nature or degree which warrants detention in hospital’. A patient may be detained on the basis of the nature of the disorder or the degree, or both. Neither term is defined by the MHA 1983. ‘Nature’ is a reference to the fundamental characteristics of the disorder. Is it chronic? Is it relapsing? Is it responsive to medication? What are the symptoms associated with relapse? Is the disorder characterised by a lack of insight? A reference to a disorder’s nature calls for a survey of its pattern. ‘Degree’ is a reference to...
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