Mental Health Tribunals and the Draft Mental Health Bill 2004
| Pages | 35-38 |
| DOI | https://doi.org/10.1108/13619322200500019 |
| Published date | 01 June 2005 |
| Date | 01 June 2005 |
| Author | Tony Eaton |
| Subject Matter | Health & social care |
The Mental Health Review Volume 10 Issue 2 June 2005 ©Pavilion Publishing (Brighton) 2005 35
Mental Health Tribunals
and the Draft Mental
Health Bill 2004
Tony Eaton
Legal Member, MHRT Panel
Extra Curriculum
he draft Mental Health Bill greatly
extends the powers of mental health review tribunals
so that the proposed mental health tribunals take
control of the whole process of compulsorily detaining
people in hospital. The new tribunals will have the
sole power to make orders continuing the patient’s
liability to some form of compulsory detention; instead
of reviewing detention only on an application by (or
on behalf of) the patient, there will be a new system of
automatic referral to the tribunal of all detained cases
within the first 28 days of admission.
The intention is to limit the power of the clinical
supervisor, particularly where public safety is an issue,
and to replace medical decisions with legal ones. The
driving force is the Human Rights Act 1998. The
subjection of an individual to compulsory detention,
where no wrong has been done, is an anomaly which
needs to be subject to the strictest safeguards. The
proposed changes seek to provide these safeguards by
tightening the process of admission and ensuring the
early and automatic involvement of the tribunal so
that the reasons for compulsion are argued before, and
the decisions made by,ajudicial body.
This will involve a lot of work. Thereweresome
25,000 detentions in 2003 and many patients did not
appeal against their detention. If the new proposals
become law, all detentions will now have to be
considered by the new process.
Criteria for detention
At the heart of the draft Mental Health Bill is clause 9.
This sets out the conditions that have to be satisfied if
Tthe patient is to be detained. These conditions must
be kept under review at all stages. If at any stage a
condition is not satisfied, the patient (in principle)
must be discharged from detention. This pattern runs
through the procedures – the first consideration at any
stage is whether the patient continues to meet clause
9.
The relevant conditions are that:
nthe patient suffers from a mental disorder
nthe mental disorder is of a natureor degree
which warrants the provision of medical
treatment
These first two conditions aresimilar to section 2 of
the current Mental Health Act 1983. Mental disorder
is broadly defined so that medical treatment is widely
available.
nit is ‘necessary’ to provide the treatment in order
to protect the patient from suicide; or other
serious self-harm; or serious self-neglect of his
own health or safety; or to protect others
This limits the scope of the first 2 conditions by
requiring the treatment to be necessary for the
prevention of serious harm.
nthe medical treatment cannot be provided in
some other way
It is not clear what this condition is intended to
achieve. It may be to exclude patients who are willing
to accept medical treatment and therefore do not need
compulsion. It does not apply to any patient over 16
who is at ‘substantial’ risk of causing ‘serious’ harmto
others. This emphasis on protection of the public is
new.
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