Mental Health Act 1983 - Overview
| Author | Michael Butler |
| Pages | 9-21 |
Part One
Overview of the Mental Health Act 1983
Chapter 2
Mental Health Act 1983 – Overview
2.1 INTRODUCTION
The MHA 1983 remains by far the most important piece of mental health legislation in England and Wales. Its stated purpose upon enactment was to ‘consolidate the law relating to mentally disordered persons’, and it is in large part based on the principles set out in its immediate predecessor, the Mental Health Act 1959, which is generally regarded as having provided the framework for modern mental health law. Like its predecessor, the main feature of the MHA 1983 is the framework that it provides for the compulsory admission to hospital and treatment of those with mental disorder.
The MHA 1983’s starting point is that detention may only be contemplated where a person has a mental disorder. Where that is established, an individual may be detained, but only when it is necessary, because of risks either to the individual himself or to members of the public at large. The Act therefore requires a threshold of risk to be crossed before interference with an individual’s liberty may be justified.
The MHA 1983 authorises compulsory admission to hospital under a civil procedure, that is, on the authority of clinicians, without the need for a court order; or, alternatively, under a criminal procedure, that is, on the authority of a criminal court or the Secretary of State for Justice (SSJ).
The prevailing philosophy behind the MHA 1983 is that detention may not be justified for its own sake, and when therefore someone is detained because of a mental disorder, then, apart from in the short term for assessment, that detention must be for the purpose of treatment. Equally importantly, the Act provides safeguards for those detained under its provisions, notable examples being the requirement that, in the absence of the patient’s consent, a second medical opinion is required in respect of certain types of treatment, and the right that is given to the patient to apply to an independent tribunal for discharge from detention.
12 A Practitioner’s Guide to Mental Health Law
As well as providing a framework for compulsory admission to hospital and treatment, the MHA 1983 also provides a framework for the delivery of community-based care and treatment involving a degree of compulsion.
2.2 STRUCTURE OF THE MENTAL HEALTH ACT 1983
The MHA 1983 is divided into 11 parts, one of which, Part VII, was repealed by the MCA 2005.
Part I (section 1) is the shortest part of the MHA 1983. It confirms that the Act is only of application to the mentally disordered, and provides a definition of the term.
Part II (sections 2–34) contains the provisions for compulsory civil admissions to hospital. It contains the criteria for admission (sections 2 and 3) and the procedure which must be followed (sections 11–13). It also contains the provisions for emergency admissions and holding powers (sections 4 and 5). It contains the rules governing the length of admission and the circumstances in which detention for treatment may be extended (section 20). It contains rules governing the granting of leave (section 17) and transfer to another hospital (section 19). It sets out the circumstances in which a patient may be discharged, by his responsible clinician (RC), by hospital managers or by his nearest relative (section 23). It contains provisions for compulsory care and treatment in the community (sections 7 and 17A). It also contains provisions concerning the identification of a patient’s nearest relative (section 26).
Part III (sections 35–55) contains the provisions governing the compulsory admission to hospital of mentally disordered offenders. It provides criminal courts with the power to direct the admission of a defendant to hospital for assessment or treatment, either before or at the point of sentence, and provides the SSJ with the power to direct the transfer of a remand or sentenced prisoner to hospital for assessment or treatment.
Part IV (sections 56–64) contains the provisions governing the clinical treatment of patients detained under the MHA 1983 and provides the authority for the treatment of a patient without consent. In exceptional circumstances, some of its provisions will also apply to patients who are not detained under the Act. There are some detained patients (those detained under the Act’s short-term provisions, sections 4, 5, 135 and 136) to whom this Part’s provisions do not apply at all.
Part 4A (sections 64A–64K) contains the provisions governing clinical treatment of patients subject to community treatment orders (CTOs).
Part V (sections 65–79) contains the provisions concerning the role of mental health tribunals (MHTs). It contains the rules setting out when a detained patient may apply to the MHT, when an automatic reference of a patient’s case to the MHT must take place, and the powers available to the MHT.
Part VI (sections 80–92) contains the powers available to remove and return patients within the UK and elsewhere.
Part VII (sections 93–113) is repealed.
Part VIII (sections 114–125) sets out miscellaneous functions of local authorities and the Secretary of State for Health (SSH).
Part IX (sections 126–130) sets out various criminal offences that may be committed under the MHA 1983.
Part X (sections 130A–149) contains various miscellaneous and supplementary provisions.
2.3 MENTAL HEALTH ACT 2007
Although the MHA 1983 might generally have been regarded as providing a sound legal...
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