Issues in UK Mental Health Laws

Explain the circumstances when a person with a mental disorder can be detained and treated against their will under the laws of England and Wales. In light of the Human Rights Act 1998, critically evaluate whether or not the law adequately protects the interests of such persons.

The practice of psychiatry and the development of what we now know as the Mental Health Act 2007 (MHA2007) has been the subject of controversy throughout the ages. This can be attributed to the fact that ‘while treatment for physical conditions almost always depends on the consent of the patient, the psychiatrist may often be called upon to treat the unwilling.’[1] Not only is the practising of psychiatry one that sometimes lacks consent, it is also thought to be intrusive and could interfere with individual autonomy. This has lead many to argue that mental health treatment has paved the way for unnecessary and invasive intervention.[2] This gives rise to a poignant debate as others have criticised actions taken towards mental health as not being sufficient in intervening in situations which could compromise public safety.

The Human Rights Act (HRA1998) came into effect in England and Wales in October 2000. The Act did not create new human rights but it’s aim was to codify the rights within the European Convention on Human Rights and provide a domestic remedy for a breach, without the need to refer to the European Court of Human Rights in the first instance. The Act received much criticism with ex-Prime Minister David Cameron proposing to replace the Act with a Bill of Rights in 2006. Mr Cameron argued that a ‘”clear and codified” bill would allow the European Court of Human Rights to apply a “margin of appreciation” in its rulings – where judges are obliged to take into account the cultural, historic and philosophical differences between Strasbourg and the nation in question.’[3] This is clear evidence of the conflict that arises when discussing UK law and human rights.

In this essay I will focus primarily on the 1983 Mental Health Act and the reformed 2007 Mental Health Act, as well as the 2005 Mental Capacity Act. I will explore their provisions for the circumstances when an adult can be detained and treated against their will and whether their interests are protected under these Acts, all whilst considering the compatibility with the Human Rights Act 1998. Unfortunately the scope of this essay has meant that I will be unable to cover the provisions in place for when a person under the age of 18 is detained against their will.

A Brief History of Mental Health Law

Legislation to regulate those deemed ‘mad’ in society began to appear in the mid-1700s with the introduction of what we now think of as the beginning of modern vagrancy law; King George II’s Vagrancy Act. These took an inhumane approach when dealing with what was deemed to be ‘society’s problems’. The 1800s brought about the Lunacy Acts which introduced the segregation of those with a mental illness and classified them into groups of ‘idiots’ and ‘imbeciles’. Change came about in the 1900s when the first Mental Health Act came into force. Mental illness started to be treated in the public sphere and the stigma surrounding mental health began to diminish. The 1983 Act detailed the circumstances when a person could be detained and treated against their will. This introduced the idea of ‘sectioning’. This was revised and repealed with the 2007 Act which was met by some controversy as some Government ministers were lobbying for a much more radical reform of the 1983 Mental Health Act, but this was met with some resistance.

The Mental Health Acts 1983 and 2007

Under the Mental Health Act 1983 those who are deemed to have a ‘mental disorder’ that puts the patient or members of the public at risk can be detained and treated without explicit consent. This practice is referred to as ‘sectioning’ and provides a grey area when discussing mental health and involuntary detention.

The term ‘mental disorder’ is defined by s1(2) as ‘any disorder or disability of the mind’ and can include a large range of mental illnesses such as personality disorders, depression and schizophrenia, all of which in turn encompass degrees of severity. This is an evidently broad definition. The later 2007 Act reaffirmed that there were exceptions which do not come under the umbrella of a ‘disorder or disability of the mind,’ such as disabilities and drug and alcohol dependence. S1(3) provides that if a person’s diagnosis is solely to do with drug or alcohol dependency then the MHA1983 cannot be used. However, it does not exempt treatment for disorders which have arisen from the abuse of alcohol or drugs, as exemplified in Secretary of State for Justice v MP and Nottinghamshire Healthcare NHS Trust where it was held that psychosis induced by drug abuse is diagnosable as a mental disorder.[4]

However, there is no statute to affirm a more precise definition of a mental disorder. UK case law must be used as guidelines alongside the decisions handed down by the European Convention of Human Rights (ECHR). Winterwerp v The Netherlands set the precedent required that a true ‘mental disorder’ must be shown by ‘objective medical expertise.’[5] However, this has since been debated in such cases as DL-H v Devon Partnership NHS Trust and Secretary of State for Justice whereby it was held that:

‘clinical diagnosis of a mental disorder is not sufficient to establish the existence for legal purposes of a mental disorder […] That leaves open the question of how a patient’s mental state is to be classified for the purposes of the Mental Health Act. The answer cannot depend on the manual that happens to be used.’[6]

To conclude on the matter, the wide definition of the term defined by s.1(2) as ‘any disorder or disability of the mind’ does bring with it some ambiguities as to what falls under it’s umbrella. Winterwerp v The Netherlands brought to the forefront the idea that medical expertise must be of paramount importance, yet, as observed in Mason & McMall Smith’s Law & Medical Ethics, ‘psychiatrists do not wish to be policemen but they do have a greater responsibility for public safety.’[7] This infers and that a more definite legal definition of what constitutes as a mental disorder is needed in the UK legal system to protect both individuals and the public, as well as clinical professionals.

Sectioning Under MHA1983

The Mental Health Act is made up of different sections relating to treatment of mental patients against their will. The detention of such patients is also specified and the length of detention can range from 28 days (s.2) to six month (s.3) with the prospect of further renewals. We shall examine each section below.

[8]

It is evident from the above that there are safeguards in place to protect the autonomy of an individual being sectioned under the Act. The time limits, right to appeal and rights to seek advice from an IMHA allow the patient a degree of control, all whilst upholding the standard of care appropriate if it is believed to be in their best interests. Tribunals also play a critical role in upholding personal independence for the patient as they are under an obligation to discharge the patient in compulsory detention if it is not satisfied that it is absolutely necessary to detain the patient on safety grounds.[9]

The Problem of Capacity

The Mental Capacity Act 2005 provides those who may lack capacity to consent to detention and treatment a legal framework to protect their best interests. ‘It is axiomatic that the capacity to make decisions as to treatment by those who are mentally disordered will be compromised and medical intervention […] is likely to be non consensual,’ and therefore it is of paramount important that statute exists to protect the interests of such patients.[10] The act does not only apply to those with a mental illness but for the purposes of this essay we will mainly focus on those sections relevant to mentally ill patients.

Section 1 of the MCA states the following principles which must be adhered to by anyone operating the Act:

1. A person must be assumed to have capacity unless it is established that he lacks capacity
2. A person is not to be treated as unable to make a decision unless all practicable steps to help him do so have been taken without success
3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

The important point here is covered by number 4 on the list where any act done or decision made must be in the patients ‘best interests’. The Act itself does not give guidance on this but in the case of Wye Valley NHS Trust v Mr B the court ruled that the wishes and feelings of the patient must be taken as of paramount importance when detaining and treating a patient with diminished capacity.[11]

Protection of Human Rights

The most common article associated with the conflict between the HRA and mental health regarding deprivation of liberty is Article 5, the right to liberty and security. Article 5 provides protection for those in the EU against unlawful arrest and detention. However, under 1(e) of the Article the law provides exceptions for ‘the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants’. This would allow those deemed to be mentally ill to be able to be detained somewhat illegally. However, the ECHR has provided guidelines to ensure that lawful detention must:

• be based on medical opinion;
• be a confinement for a mental disorder;
• continue only for as long as the mental disorder persists;
• be in accordance with the law – compliant with MHA[12]

One of the ECHR cases that is often referred to when discussing human rights and psychiatric law is Aerts v Belgium.[13] Here, the complainant objected to his detention in the psychiatric wing of a prison whilst waiting for a transfer to a nearby Social Protection Centre, and argued that it breached the right to liberty in article 5 of the ECHR, the right to fair hearing under article 6 of the ECHR, and the prohibition on inhuman or degrading treatment in article 3 of the ECHR. The court found in his favour and affirmed that detention of a mentally ill person under Article 5 can only be lawful if it is effected in a hospital, clinic or other appropriate institution where treatment is available.

Sectioning of patients under ss 2 and 3 of the MHA is often viewed compatible with the guidelines set out by the ECHR. The conflict appears with detention under s136 where police are allowed to intervene and either remove mentally disordered persons from a public to a safe place or detain them at their location. An example of the conflict between s136 and HRA comes in the form of the case MS v UK whereby MS was authorised to be detained by s136 after an assault.[14] There was a delay in transferring the MS to a psychiatric centre and this consequently led to detention beyond the 72-hour limit of s136. However, the patient did not make any claim under Article 5, rather, his claim was instead regarding Article 3 (freedom inhuman or degrading treatment). The claim was successful due to the ‘conditions which [the applicant] was required to endure had reached the threshold of degrading treatment for the purposes of Article 3.’[15]

An article published by The Guardian stated that ‘Officers point to an increase of more than 50% in a decade in the use of powers to detain people under section 136 of the Mental Health Act’ due to cuts in psychiatric care.[16] This leads to a worrying inference that aligning the UK’s mental health laws with the HRA is not of paramount importance in the government’s views and begs the question as to whether the law adequately protects the interests of such vulnerable people.

However, as of December 2017, important changes to MHA1983 were implemented to protect the rights of those detained under section 136. These changes included the fact that police stations can not be used as a place of safety unless specific situations arise as detailed by the act. The detention time has also been reduced from 72 to 24 hours.

There have been other recent changes to legislation, influenced by case law, that do promote the notion that the government is willing to attempt to align domestic law up with the HRA. For example, the deprivation of liberty safeguards (DOLS) were a later amendment to the MCA2005 and were introduced in England and Wales only, to make sure that any deprivation of liberty was within the requirements set out by the ECHR. The case of HL v UK, also known as the Bournewood case, highlighted the need for procedural reform in light of Article 5 of ECHR.[17] The facts are briefly as follows: The patient had been diagnosed with severe autism. It was ruled that he lacked capacity to decide where to live. He spent years in a psychiatric hospital and then with carers. However, his behaviour declined and he was admitted to hospital on an informal basis. ‘He was denied contact with his carers for three months and the intention was to keep him in hospital. Because he was “compliant” it was asserted that he was not deprived of his liberty.’[18] The ECHR held that liberty had been deprived yet he had no remedy to the protections offered by the MHA1983. The absence of procedural safeguards and access to the court amounted to a breach of Article 5 and the need for safeguards to be put in place to prevent further illegal deprivations of liberty was highlighted.

Consequently, the Deprivation of Liberty Safeguards (DOLS) came into force. The following are issues highlighted in the DOLS handbook to be factors that could be relevant when identifying whether steps taken by medical professionals amounts to deprivation of liberty.

• Restraint is used, including sedation, to admit a person to an institution where that person is resisting admission.
• Staff exercise complete and effective control over the care and movement of a person for a significant period.
• Staff exercise control over assessments, treatment, contacts and residence.
• A decision has been taken by the institution that the person will not be released into the care of others, or permitted to live elsewhere, unless the staff in the institution consider it appropriate.
• A request by carers for a person to be discharged to their care is refused.
• The person is unable to maintain social contacts because of restrictions placed on their access to other people.
• The person loses autonomy because they are under continuous supervision and control.[19]

This is evidence to suggest that steps are being taken to align the UK’s mental health laws with the HRA for the purpose of protecting the rights and autonomy of vulnerable individuals and so as to not repeat the tragedy of the Bounewood case.

Article 8 rights are also commonly debated when discussing personal autonomy and mental health and were explored in the case of R (E) v Bristol City Council.[20] It was ruled in this case that it would be an infringement of the patient’s Article 8 rights (respect of one’s private and family rights) to interpret ‘reasonably practicable’ in relation to the obligation of the practitioner to consult the nearest relative as meaning ‘available’. Rather it was deemed it should be interpreted as ‘appropriate’ where the patient revered having the nearest family member consulted and thus to protect a patient’s autonomy and liberty in deciding the appropriate course of treatment.[21] The later amendments in the MHA2007 did not change this stance dramatically yet it confirmed that patients have the right to apply for the removal of their chosen nearest relative if they feel that person is unsuitable, exemplifying the acknowledgement of the precedent set in R (E) v Bristol City Council and showing an attempt at aligning the UK’s mental health laws further with the HRA.

This precedent was also addressed in the 2014 case of TW v Enfield Borough Council where the balance between a patient’s Article 5 and 8 rights were examined.[22] The patient objected to being admitted to hospital yet also did not want their father, who was the nominated nearest relative, to be contacted regarding their detention as the patient had alleged sexual abuse against him. The judge in the first instance claimed that in light of Article 8 it was evident that it was not ‘reasonably practicable’ for the defendants to have consulted the patient’s father before applying for their admission under the MHA. However, the patient disagreed with relying Article 8 as it invalidated safeguards put in place in respect of Article 5. The Court ultimately concluded that, on the balance Articles 5 and 8, the medical practitioner should have followed procedures put in place by s11 MHA to protect the interests of the patient when dealing with personal detention. This case stresses the importance of adhering to the procedures set out by the Mental Health Act with the safeguards that seek to protect patients from the serious implications of the Act. It is important to understand that when dealing with the balance between human rights each case will have to be considered on its own merits and may ultimately have differing verdicts.

Concluding Remarks

In the modern world, the concept of retaining autonomy is rather a new one. It used to be understood that in sickness an individual becomes a patient ‘and ceases to be an agent.’[23] However, with the introduction of such acts as the 1983 Mental Health Act and the reformed 2007 Mental Health Act, as well as the 2005 Mental Capacity Act we can see how even those who are detained and treated against their will have provisions in place to attempt to protect their interests in line with the Human Rights Act 1998.

The safeguards put in place in both mental health acts allow a patient to only be detained for up to a certain length of time. This can only be extended if medical professionals agree and follow procedures. This attempts to protect those in a vulnerable position after being detained from having their liberty taken away under illegitimate circumstances. This issue was confronted in the case of MS v UK, where the illegitimate detention of liberty led to a breach of Article 3 and was deemed as being inhumane in the treatment.[24] This case has helped to pave the way for recent 2017 reforms regarding sectioning under section 136.

However, not everyone could rely on the statutory safeguards. The Bournewood case highlighted the need for procedural reform in light of Article 5 of ECHR and the modifications that followed indicated the government’s understanding of the critical reform needed in order to keep UK legislation in line with the MHA.[25]

Nevertheless, it appears to be evident that further reform is needed within the mental health statue when deciding what is meant by a ‘mental disorder’ as defined by s.1 MHA as ‘any disorder or disability of the mind’. This broad definition can encapsulate an array of mental illnesses. Although there are exceptions, many argue that the term is too wide and could lead to misinterpretation of statue and therefore the unfair detention and deprivation of someone’s liberty.

However, the fact that tribunals exist are deemed to be effective and judicial review is available appears to be a sufficient way of maintaining the autonomy of psychiatric patients, as explored in both R (E) v Bristol City Council[26] and TW v Enfield Borough Council where the balance between a patient’s Article 5 and 8 rights were examined and the procedures carried out by the medical professionals .[27]

In conclusion, it is evident to suggest that in the 20^th and 21^st century mental health reform has come a long way in protecting the interests of those who can be detained under the various acts in England and Wales. Where psychiatric patients were deemed as ‘lunatics’ they are now understood as being a normal part of society that need to be helped and protected. There are safeguards that have been added and precedents set by case law which allow patients to retain a level of autonomy in line with the Human Rights Act. Of course there is room for improvement, as with most statutes, but it is clear that steps have been taken in society to reduce the stigma of mental illness and protect those who are vulnerable in the eyes of the law. There is a recent drive for most mental patients to be dealt with on an informal basis, without the need to invoke the Mental Health Act with the view to protect autonomy and promote the best interests of the patient.[28] However, no matter how careful the reform may be, each case will have its complexities and unfortunately this may lead to some unfortunate breaches in human rights, as seen in the TW v Enfield Borough Council case, where medical practitioners weren’t quite able to weigh up Article 8 rights with Article 5 rights sufficiently. [29] All we can hope for is a continuation of what I deem to be progress and an understanding that detention and treatment against a patient’s will should always be in their best interest.

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[1] GT Laurie and others, Law & Medical Ethics (10th edn, Oxford University Press 2016)

[2] Szasz Thomas , The Myth of Mental Illness: Foundations of a Theory of Personal Conduct (Revised edn, Harper Perennial 2010)

[3] Oliver Wright , ‘David Cameron to ‘scrap’ Human Rights Act for new ‘British Bill of Rights” (The Independent ,1 October 2014) <https://www.independent.co.uk/news/uk/politics/conservative-party-conference-cameron-announces-plans-to-scrap-human-rights-act-9767435.html> accessed 3 April 2018

[4] [2013] UKUT 05 (ACC)

[5] [1979] 2 EHRR 387, para 39

[6] [2010] UKUT 102 AAC, para 24

[7] GT Laurie and others, Law & Medical Ethics (10th edn, Oxford University Press 2016)

[8] Mind.orguk, ‘About Sectioning ‘ (Mind.orguk, September 2017) <https://www.mind.org.uk/information-support/legal-rights/sectioning/about-sectioning/#.WwLf3ogvzIU> accessed 12th April

[9] GT Laurie and others, Law & Medical Ethics (10th edn, Oxford University Press 2016)

[10] GT Laurie and others, Law & Medical Ethics (10th edn, Oxford University Press 2016)

[11] [2015] EWCOP 60

[12] Andrew Parsons, ‘Rights to know’ (The Guardian, 9 November 2000)<https://www.theguardian.com/society/2000/nov/09/policy.socialcare> accessed 22 April 2018

[13] [1998] ECHR 64

[14] [2012] ECHR 804

[15] [2012] ECHR 804

[16] Vikram Dodd, ‘ Police say they are becoming emergency mental health services’ (The Guardian , 9 October 2016) <https://www.theguardian.com/uk-news/2016/oct/09/police-forces-mental-health-section-136>accessed 20 April 2018

[17] [2004] ECHR 471

[18] Mental health law online , ‘HL v UK 45508/99 [2004] ECHR 471’ (Mental Health Law Online , 10 July 2010)<http://www.mentalhealthlaw.co.uk/HL_v_UK_45508/99_(2004)_ECHR_471> accessed 23 April 2018

[19] Ministry of justice, ‘Mental Capacity Act 2005 Deprivation of liberty safeguards Code of Practice to supplement the main Mental Capacity Act 2005 Code of Practice’ (National Archives, 26 August 2008 )<http://webarchive.nationalarchives.gov.uk/20110322122009/http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_085476> accessed 1 May 2018

[20] [2005] EWHC 74

[21] Paul Barber and Robert Brown, Mental Health Law in England and Wales: A Guide For Mental Health Professionals (2nd edn, Learning Matters 2012)

[22] [2014] EWCA Civ 362

[23] George Agich, Dependence and Autonomy in Old Age: An Ethical Framework for Long-term Care (Revised edn, Cambridge University Press 2003)

[24] [2012] ECHR 804

[25] [2004] ECHR 471

[26] [2005] EWHC 74

[27] [2014] EWCA Civ 362

[28] GT Laurie and others, Law & Medical Ethics (10th edn, Oxford University Press 2016)

[29] [2014] EWCA Civ 362