Last updated: September 17, 2019
Topic: Art
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About 90% of those admitted to psychiatric facilities in England and Wales are admitted ‘informally’[1]. The grounds for this are found in section 131 (1) of the Mental health Act 1983 – nothing in the act shall be construed as ‘preventing a patient who requires treatment for mental disorder from being admitted to any hospital’ – regardless of whether the ‘correct’ procedure has been followed (i. e. recommendations from ASW). The definition of ‘mental disorder is laid out in section 1 of the act.

The legal position of a formally confined patient is much easier to define – as their confinement is by definition – formal – all the formalities of the governing statutes must be followed. Greater confusion can therefore be found in the category of informal patients, where every situation may not be legislated for, and case law may not as yet have filled in the gaps. It is important to note that people admitted under s131 are not legally confined – and are legally permitted to leave.

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Those admitted informally also have the same rights as anyone else in society to consent to, or refuse treatment. It was held in R v Kirklees MBC[2] that section 131 applies only to the treatment of patients, and not to their assessment. Assessment is lawful for any patient who consents ‘just as he or she may be admitted to hospital for an operation’[3]. If an informal patient wants to leave, they must complete a report in writing to the managers of the hospital to that effect.

If the doctor believes an application for detention ought to be made, they have a holding power under section 5 (2) MHA – allowing the patient to be detained for 72 hours while a full assessment is made. Allowing a patient to admit themselves enables a more conventional doctor patient relationship. The balance of power stays on a more even footing, allowing patients to feel more in control and a relationship of trust is more likely to be established. Patients who admit themselves are more likely o ask for help when needed and respond and engage in treatment. Studies abroad such as Poulsen 2002 have found, however, that around 50% of patients feel they have been coerced into admitting themselves[4]. Medical staff also have the power to threaten patients with formal admission if they do not consent to treatment[5] – their confinement can therefore be seen in certain circumstances (such as in HL v UK[6] or ‘Bournewood’) as in violation of Article 5 ECHR – the right to liberty[7].

Those patients admitted formally, or ‘sectioned’ arrive in hospital usually through section 2 MHA ’83, and section 3. Section 2 provides the legal basis for a 28 day section, for assessment of the patient. The process involves an application to the senior doctor of the psychiatric facility, following the recommendation of an approved social worker (ASW) a section 12 approved doctor and a registered medical practitioner. There can be no more than five days between either professionals examination of the patient[8].

A patient admitted under section 2 has the right to appeal against their confinement at a Mental Health Review Tribunal (MHRT) – proceedings must, however, be started wihin the first 14 days of the section. A section 2 admission is not renewable. A patient admitted under section 3 is detained for a period of 6 months, renewable once for another six months, and there after renewable annually. The mechanism for renewal is provided for in section 20 (4) MHA’83. Again, the patient is allowed one appeal, in each of these periods. Patients can also be admitted through police powers contained in section 136. If a constable finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety’[9]. Persons held under section 136 can only be detained for 72 hours, this is to enable them to be examined by a registered medical professional and an ASW. Arrangements can then be made for the patients care or treatment.

Mental capacity is another important difference between formal and informal patients with regards to consenting to treatment. Providing the patient is mentally competent, they are in a much stronger position to refuse treatment as an informal patient. Again, however, it has been observed that patients feel coerced into consenting to treatment. Until the MCA[10] came into force this year – there was very little procedural protection afforded to those patients admitted informally and found to be mentally incompetent. Treatment could be forced upon patients in this situation on the basis of the doctors view of the patients best interests[11].

Within the category of informally admitted patients we see different issues arising with regards specific groups. Women, for example, and more specifically white women, represent one and a half times more admissions then men[12] – a considerably higher proportion of patients then their percentage of society. Some may argue that this is due to the enduring misogyny of society, seeing women acquiesce to informal admission, rather then being the active party in the decision that hospitalisation is indeed their best option.

Others would view this percentage difference as a result of the fact that women are more likely to recognise mental disorder in themselves and, being typically more able to ask for help then men, are more freely able to admit themselves informally. The law recognises the fact that a large number of informal admissions are without a doubt involuntary, and deals with this, again depending on the sub-category of the informal patient. Section 7 of the Act allows the appointment of a guardian for informal patients ‘ A patient who has attained the age of 16 years may be received into guardianship…’ [13].

These powers are restricted by section 8 of the Act, but it is clear that this position of power over a patient leaves a definite and more importantly legal gap for coercion of the patient. Specifically section 8 gives the guardian ‘the power to require the patient to reside at a place specified by the authority or person named as guardian…’[14]. There is nothing in the Act, according to R v Hallstrom[15], that could prevent the guardian from using this power to forcibly admit a patient to hospital.

Section 8 does not contain any powers of detention, and therefore the patient, though forced into an institution, is still classed as an informal patient[16]. The Code of Practice that accompanies the Act does state that ‘guardianship must not be used to require a patient to reside in hospital except where it is necessary for a very short time in order to provide shelter whilst accommodation in the community is being arranged’[17]. There is nothing in the Act, however, which supports this guideline.

Indeed it was found in Kirklees[18] that ‘violation of the Code would not create a wrong that could be subject to judicial scrutiny if the statute was complied with…’[19] This is an even more shocking decision as the guardian in this particular case is a public body, and should therefore act with conscience at all times, which it cannot be seen as doing by putting an informal patient in hospital, without the legal authority to leave. Patients in this situation are of course permitted to appeal.

It is not likely, however, that a challenge of the guardianship order before a MHRT would be successful – again, particularly where the guardian is a public body – the tribunal would most likely assume that the guardian is acting in the best interests of the patient. ‘The Bournewood Gap[20]’: Should those who acquiesce but are not mentally capable be detained? The carers of L (the patient in Bournewood) had not had any problems in looking after him, and he was admitted when he started hitting himself while at a day care centre.

The admission was informal – he had been extremely compliant throughout the process. An application for L’s release was made by his carers, on the basis that detention was not necessary for his care, and coercing him into consent amounted to false imprisonment. Submissions were also made that his detention was contrary to his right to liberty as enshrined in Article 5 of the Human Rights Act, specifically 5(1) and (4) ‘1. Everyone has the right to liberty and security of person.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. ’ The House of Lords overturned the Court of Appeal decision that stated that section 131 only applied to those who had the capacity to, and did consent to treatment. Without the formalities of the Mental Health Act being observed – detention of a patient who is incapable and who merely acquiesces in unlawful. The case was taken to Strasbourg.

The European Court of Human Rights found that L’s detention was indeed unlawful. While in hospital, the House of Lords argued that he was not being detained as long as he did not try to leave – this was overturned by the European court. It was found irrelevant that he did not try to leave – he was in fact ‘under complete and effective control’, which amounted to unlawful detention, in direct violation of Art 5(1) ECHR, and also the aim to avoid arbitrariness had not been satisfied. The decision of the House of Lords was also found to be in direct violation of Article 5(4).

Judicial Review was found not to be sufficient and Habeas Corpus not sufficient or speedy enough to satisfy Art 5(4) and therefore not sufficient to base the decision to detain a patient on. His detention was de facto not de jure (by law). There has been much commentary as to what should happen in situations such as Bournewood, with little satisfaction being found in more recent legislation. Legal rights are also conferred on formal and informal patients by the Mental Health Capacity Act[21]. It allows a patient, when deemed competent to do so, to appoint a decision maker on their behalf with a ‘lasting power of attorney’.

However, even if the appointed decision maker objects to the sectioning of the individual, detention under the MHA will still be available. The rights of an informal patient to object to treatment, and to leave hospital are a lot easier to enforce, and grounds to appeal are a loot more readily available than those of a formal patient. We can however see that the underlying doctrine of necessity can undermine the perceived rights off all patients – regardless of the process of admission, and provides a lawful basis for treatment for those who are not capable of autonomous thought.

While we can and should accept that detention of a patient is usually in their best interest, we should also acknowledge the fact there may be a better option (such as in Bournewood). Where mistakes are made, there is always grounds for appeal, and every patient has the right to appear before a Mental Health Review Tribunal in each one of their renewed detention periods. This surely, should be seen as safeguard enough for even the most vulnerable patients.