The Mental Health Act Code of Practice
| Date | 01 July 1990 |
| Published date | 01 July 1990 |
| Author | Phil Fennell |
| DOI | http://doi.org/10.1111/j.1468-2230.1990.tb02831.x |
The Mental Health Act Code
of
Practice
Phil
Fennell”
Introduction
The Mental Health Act
1983
makes provision for the treatment of mentally disordered
patients by allowing for the informal admission of patients who do not resist treatment
which is deemed necessary in their best interests, and for the detention of those who would
refuse such interventions. The term ‘informal’ does not mean the same as voluntary, since
there are in psychiatric hospitals many informal patients (especially profoundly mentally
handicapped and elderly people suffering from confusional disorders) who lack the capacity
validly either to consent to, or to refuse, admission.’ In practice, the vast majority of
patients are admitted informally. Out of over
200,000
admissions in
1986,
approximately
7
per cent took place under compulsory powers.2 The rest were informal.
Because the exercise of the powers to detain and treat in the
1983
Act entails achieving
a delicate balance between respect for people’s civil liberties and the protection of their
welfare or that of other people, the Act sets safeguards by requiring that before a person
can be detained they must be suffering from mental disorder, and the mental disorder
must be of a nature or degree which warrants detention in the interests of the health or
safety of the patient or for the protection of others. Furthermore, detained patients have
the right to appeal against detention to a Mental Health Review Tribunal, and to make
complaints about treatment or other matters to the Mental Health Act Commission (the
Commission), the independent multi-disciplinary body set up to oversee the operation of
the consent to treatment arrangements in the Act and to protect the rights and welfare
of detained patients.
In addition to these safeguards, the Act puts a duty on the Secretary of State for Health
to prepare and revise a Code of Practice for the guidance of mental health professionals
in relation to the admission of patients to both National Health Service and private psychiatric
hospitals, and in relation to the medical treatment of all patients suffering from mental
di~order.~ Since medical treatment for the purposes of the
1983
Act includes ‘nursing,
care, habilitation and rehabilitation ander medical supervi~ion,’~ this was an extremely
wide brief.
Political Background
The Secretary of State delegated the preparation of the draft code to the newly established
Mental Health Act Commission in
1983.
The Commission draft was circulated to relevant
professional bodies and health authorities in
1985.
It met with a mixed reception. Many
*Cardiff
Law
School
1
For a fuller discussion of the implications of the distinction between the status of informal and detained
patients see Fennell, ‘Inscribing Paternalism in the
Law:
Consent
to
Treatment and Mental Disorder’
in
L.
Doyal and
L.
Doyal (eds)
Legal and Moral Dilemmas in Modem Medicine, Special Issue
of
the
Journal
of
Law
and Society
Vol
17
No
1
Spring 1990, 29-51 at pp. 35-6.
DHSS,
Mental Illness and Mental Handicap Units in England: Legal Status Statistics 1982-86
DHSS
Statistical Note 1/88, para 8.
Mental Health Act 1983,
s
118(1).
2
3
4
ibid,
s
145(1).
The Modem
Law
Review
53:4 July 1990 0026-7961
499
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