Different Routes Towards Compulsory Care And Treatment
Author: Robert Keys, Head of MH Law, NELFT

Learning Objectives

• To consider how voluntary consent underlies all medical treatment
• To consider concepts around autonomy and refusal of treatment
• To gain an overview of the broad range of legal powers that can be used to deprive of liberty and/or give compulsory treatment
• To see how ideas of human rights affect treatment
• To consider ethical justifications for compulsory treatment

To examine in summary the main legal authorities for compulsory treatment and how these differ

Discharge – Section 23

Summary

In this Module, we have considered the definition of mental disorder for the purposes of the MHA 1983, in other words those who may legally fall within its ambit. We have also briefly considered the earlier definition of mental disorder.

We have also looked at the exclusions and special provisions that exist in particular with regard to those with a learning disability in the context of the use of the longer-term MHA 1983 provisions.

Impact?

(e) Impact

• According to Richards Jones:
• ‘The definition which is used throughout the Act, provides clinicians with a very wide discretion in identifying which conditions come within its scope. This is, perhaps, worrying given the propensity of some in the psychiatric profession to medicalise normality.’ (19th edition at paragraph 1-031)
• Other than for anyone with a learning disability no requirement for any association with abnormally aggressive or seriously irresponsible conduct is required.

Exclusions

(d) Exclusions

• Section 1(3) states that:
• ‘Dependence on alcohol or drugs is not considered to be a disorder or disability of the mind for the purposes of subsection (2) above’
• This exclusion refers only to dependence and does not exclude the effects of substances, such as intoxication, psychosis and delirium. Guidance is given on the impact of the retained exclusions in paragraphs 2.9 – 2.13 of the Code of Practice.

Learning Disability

(c) Special learning disability provisions

• Learning disability is defined in s.1(4) MHA 1983 as:
• ‘a state of arrested or incomplete development of the mind which includes significant impairment of intelligence and social functioning’
• Special provisions apply before someone with a learning disability may be made subject to the Act’s longer-term provisions of s.3, Guardianship and Community Treatment Orders, as well as certain Part III provisions (see s.1(2B) MHA 1983).
• In relation to the use of these provisions of the MHA 1983 s.1(2A) MHA 1983 establishes that somebody with a learning disability will not fall within the definition of mental disorder unless that disability is also associated with abnormally aggressive or seriously irresponsible conduct (the so called ‘conduct element’).
• The presence of a learning disability may ‘pass’ the Mental Disorder test for detention under s.2. However, for detention under a treatment order this needs to be accompanied by ‘Abnormally Aggressive or Seriously Irresponsible Conduct’.
• Abnormally Aggressive and Seriously Irresponsible Conduct are difficult to define, but the Code of Practice identifies some features which should be considered when determining whether the criterion is met.
• These generally reflect an understandable position that behaviour would be seen as meeting this criterion for detention if it is severe, frequent, persistent and not generally seen commonly in the general population.

Note: These provisions only apply to those with a learning disability as defined above. In particular, note that they do not apply to those with an autistic spectrum disorder. (Guidance on this is contained at Chapter 20 of the Code of Practice.)

Mental Disorder

(b) The current definition of mental disorder

The MHA 2007 amended s.1 of the MHA 1983, in many ways simplifying things. It removed the previous 4 categories, and replaced them with one definition of mental disorder.

Section 1(2) MHA 1983 now simply defines mental disorder as;
‘Any disorder or disability of the mind’

Note: No-one should be considered to be mentally disordered solely because of their political, religious or cultural beliefs, values or opinions.

Some exclusions from what can be considered to be a mental disorder for the MHA 1983 purposes still remain for example in relation to those with a learning disability.

As with the earlier provisions, the current MHA 1983 requires a disorder/ disability of the mind. Contrast this with the application of the Mental Capacity Act 2005 (MCA 2005) which applies to an impairment or disturbance of functioning of mind or brain.

Let’s look at the guidance on the s.1 definition of mental disorder is given at Chapter 2 of the Code of Practice, including a ‘table’ below (at Figure 1) of examples of clinically recognised conditions that fall within the definition of mental disorder.

Figure 1: Clinically recognised conditions which could fall within the Act’s definition of mental disorder

• Affective disorders, such as depression and bipolar disorder
• Schizophrenia and delusional disorders
• Neurotic, stress-related and somatoform disorders, such as anxiety, phobic disorders, obsessive compulsive disorders, post-traumatic stress disorder and hypochondriacal disorders
• Organic mental disorders such as dementia and delirium (however caused)
• Personality and behavioural changes caused by brain injury or damage (however acquired)
• Personality disorders (see paragraphs 2.19 – 2.20 and chapter 21)
• Mental and behavioural disorders caused by psychoactive substance use (see paragraphs 2.9 – 2.13)
• Eating disorders, non-organic sleep disorders and non-organic sexual disorders
• Learning disabilities (see paragraphs 2.14 – 2.18 and chapter 20)
• Autistic spectrum disorders (including Asperger’s syndrome) (see paragraphs 2.14 – 2.18 and chapter 20)
• Behavioural and emotional disorders of children and young people
• (Note: this list is not exhaustive)

Note: The previous exemptions for “promiscuity or other immoral act” have not been included in the amendments made by the 2007 Mental Health Act. This means that persons diagnosed with paedophilia can be detained in hospital by virtue of that alone.

Mental Disorder

(a) The law pre MHA 2007 amendments

• Prior to the amendments introduced by the MHA 2007, s.1 of the MHA 1983 defined mental disorder as:
• ‘Mental illness, arrested or incomplete development of the mind, psychopathic disorder and any other disorder or disability of the mind’.
• A person had to suffer from a condition which fell within at least one of four specific statutory classes (mental illness; psychopathic disorder; severe mental impairment, and mental impairment) before s/he could be detained under s.3, received into Guardianship, or placed under after-care under supervision.

Completing Section Papers

• When completing your medical recommendation, consider if the following statutory criteria are met:
• Section 2
• The person is suffering from a mental disorder of a nature or degree which warrants their detention in hospital for assessment (or for assessment followed by treatment) for at least a limited period.
• The person ought to be so detained in the interests of their own health or safety or with a view to the protection of others.
• Section 3
• The person is suffering from a mental disorder of a nature or degree which makes it appropriate for them to receive medical treatment in hospital.
• It is necessary for the health and safety of the person or for the protection of other persons that they should receive such treatment and it cannot be provided unless the patient is detained under this section, and appropriate medical treatment is available.

Completing Section Papers

• Once the medical recommendation for a patient has been completed it will be passed on to the Approved Mental Health Professional (AMHP) who will then, if appropriate, complete an application for detention for the patient.
• When completing your medical recommendation, you must ensure that the criteria for detention is met. This will be evidenced on the form.
• Your medical recommendation will undergo scrutiny from a legal prospective and from a medical prospective ensuring the legality of the detention.