Mental Health Act 1983 Amendments

Mental Health Act 1983 Amendments

The Mental Health Act 2007 (MHA 2007) makes amendments to several pieces of existing legislation but the main changes it makes are to the Mental Health Act 1983 (MHA 1983) and the introduction of 'Deprivation of liberty safeguards' into the Mental Capacity Act 2005 (the MCA).

The full text of the MHA 2007 can be viewed on the website of the Office of Public Sector Information (OPSI) at www.opsi.gov.uk/acts/acts2007/20070012.htm

There are six main areas of the MHA 1983 affected when the MHA 2007 came into force:

• a new broad definition of mental disorder and the removal of most exclusions from the coverage of the MHA 1983
• the 'treatability test' replaced by an 'appropriate treatment test', the new test applying to all the long-term powers of detention
• supervised community treatment will be created through the introduction of a new Community Treatment Order for certain patients
• new safeguards will be introduced, including a provision for advocacy and amendments to the provisions for displacing and appointing nearest relatives
• the roles of approved social worker and responsible medical officer will be replaced by new roles which will be open to a wider range of professionals
• provision will be made for powers to reduce the time limits for the automatic referral of some mental health patients to the Mental Health Review Tribunal.

This briefing provides an overview of the main changes that the MHA 2007 will make to the MHA 1983. Separate briefings examine the controversial subject of supervised community treatment and also the changes to the MCA.

Legal terms are used in this briefing as they appear in legislation. Some people find these terms inappropriate, even offensive, but they are used here for the sake of legal accuracy.

1. Definition of mental disorder and exclusions
2. New 'appropriate treatment' test
3. Changes in professional roles
4. Safeguards
4.1 Nearest relatives
4.2 Independent mental health advocates
4.3 Electro-convulsive therapy
4.4 Accommodation for children (section 31)
5. Community Treatment Orders
6. Mental Health Review Tribunals
7. Other changes
7.1 Principles
7.2 Definition of "medical treatment"
7.3 Restricted patients
7.4 Increase in penalty for offence of ill-treatment
7.5 Informal admission of patients aged 16 or 17 (section 43)
8. Further information

1. Definition of mental disorder and exclusions

The MHA 2007 changes the definition of mental disorder in section 1(2) of the MHA 1983 and removes the separate definitions of 'mental impairment', 'severe mental impairment' and 'psychopathic disorder'. These, along with 'mental illness', will no longer exist as classifications of mental disorder for the purposes of the MHA 1983 and the definition of mental disorder will change from "mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disability or disorder of mind" to "any disorder or disability of the mind".

The MHA 2007 introduces into section 1 MHA 1983 an exclusion for people who have a learning disability. This will work by providing that for certain sections of the MHA 1983 (including admission to hospital under section 3 and reception into guardianship under section 7), a person with a learning disability shall not be considered to be suffering from a mental disorder simply as a result of that disability unless the disability is "associated with abnormally aggressive or seriously irresponsible conduct" on the part of the person concerned. The exclusion therefore works in a similar way as the present exclusion in respect of people with a 'mental impairment' or 'psychopathic disorder'. A new section 1(4) of the MHA 1983 will define learning disability as "a state of arrested or incomplete development of the mind which includes significant impairment of intelligence and social functioning."

A 'drug and alcohol' exclusion will be maintained under the amended MHA 1983. A new section 1(3) states that dependence on alcohol or drugs is not considered to be a mental disorder for the purposes of the new definition in section 1(2). Such dependence will therefore not in itself be grounds for the MHA 1983's compulsory powers to be used. The exclusions relating to 'promiscuity or other immoral conduct' and 'sexual deviancy' are not being retained.

2. New 'appropriate treatment' test

As the MHA 1983 stands, longer term compulsory powers (such as section 3) can only be used if the treatment the person is to be given in hospital is likely to "alleviate or prevent a deterioration" in their condition. This requirement, known as the 'treatability test', will be replaced by a requirement that "appropriate treatment is available" for the patient concerned.

A new section 3(4) states what it means for treatment to be appropriate for the purposes of the amended MHA 1983: " … references to appropriate medical treatment, in relation to a person suffering from mental disorder, are references to medical treatment which is appropriate in his case, taking into account the nature and degree of the mental disorder and all other circumstances of his case." In addition, one of the changes to the definition of "medical treatment" in section 145 of the MHA 1983 (see below) inserts a new section 145(4). This provides that references to medical treatment "…. shall be construed as a reference to medical treatment the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations."

The 'appropriate treatment' test will apply to detentions under section 3 and relevant criminal justice provisions, to supervised community treatment (outlined below), and to the criteria for renewal and discharge of compulsion under these provisions. The appropriate treatment test also replaces the treatability test where a Second Opinion Appointed Doctor (SOAD) certificate is required under sections 57 and 58 of the MHA 1983. Currently, these sections require the SOAD to certify that treatment should be given, "having regard to the likelihood of the treatment alleviating or preventing deterioration of the patient's condition". Under the amended MHA 1983, the SOAD must certify that it is appropriate for the treatment to be given.

Because of the change to the definition of mental disorder in section 1 of the MHA 1983, the 'appropriate treatment' test will apply to people with all former classifications of mental disorder as opposed only to those with mental impairment and psychopathic disorder under the current version of the MHA 1983.

3. Changes in professional roles

The MHA 2007 amends the MHA 1983 so that a broader range of professionals are able to exercise certain of the Act's functions. Specifically, the approved social worker role will be changed to that of approved mental health practitioner (AMHP) and the responsible medical officer (RMO) will be replaced by a responsible clinician. This will be an 'approved clinician' who has been approved as being capable of fulfilling the responsibilities of the responsible clinician role.

3.1 Approved clinicians

People other than doctors - social workers, nurses, occupational therapists and psychologists - will be eligible to become approved clinicians. This means that unlike an RMO, a responsible clinician - who is essentially the approved clinician with overall responsibility for a patient's case - will not necessarily be a medical practitioner.

Certain functions under the MHA 1983 will still require the input of a doctor. The wording of sections 2 and 3, for instance, will remain unaltered so that medical recommendations for detention under these sections will still have to be made by two 'registered medical practitioners' - sections 2(3) and 3(3). Other functions which are currently exercisable by a medical practitioner will be able to be performed by the approved clinician. For example, section 5(2) MHA 1983 will be amended to provide that the 'holding power' can be used by the "registered medical practitioner or approved clinician in charge of treatment ….".

3.2 Approved Mental Health Professionals

Currently under section 114 of the MHA 1983, a local social services authority is required to appoint a sufficient number of approved social workers (ASWs) to carry out key functions. These functions include making applications for compulsory admission or guardianship. In the amended Act, any references to ASWs will be changed to refer to the approved mental health professional (AMHP) who will take on the functions of the ASW, including the making of applications for compulsory admission under Part II of the MHA 1983. A wider group of professionals, such as nurses, occupational therapists and psychologists, will potentially be eligible for approval as AMHPs, although local authorities will continue to be responsible for approving AMHPs under the reworded section 114.

4. Safeguards

4.1 Nearest relatives

A number of changes are made to the sections of the MHA 1983 dealing with nearest relatives and their removal (or 'displacement'). The nearest relative will continue to be appointed in accordance with the provisions of section 26 but an important change is that civil partners are inserted into the list defining relatives in section 26(1) and afforded the same status as husband and wife. This change came into force on 1 December 2007. Other important changes are amendments to section 29 of the MHA 1983 that allow patients to apply for the displacement of a nearest relative and introduce a new ground for displacement – that is, that the nearest relative is "not a suitable person to act as such". This may enable some patients to 'choose' their nearest relative but only by using the county court system. The patient will have to apply to the county court on the grounds that the person who the mental health agencies would otherwise consider to be the nearest relative under section 26 is "not a suitable person". In the application, the patient can nominate another nearest relative and that person can then be made the acting nearest relative unless the court finds the person to be unsuitable or of course, it decides not to displace the current nearest relative.

4.2 Independent mental health advocates

New sections are inserted into the MHA 1983 dealing with independent mental health advocates. A new section 130A MHA 1983 places a duty on the appropriate national authority (the Welsh Assembly or, in England, the Secretary of State) to make reasonable arrangements for independent mental health advocates to be available to help "qualifying patients". A qualifying patient is defined in section 130C(2) as someone who is:

1. liable to be detained under the MHA 1983 (but not by virtue of sections 4, 5(2) or (4), 135 or 136);
2. subject to guardianship under the MHA 1983; or
3. a community patient.

In addition, section 130C(3) provides that even if a person does not come within these categories, she or he is still a qualifying patient if she or he discusses with a registered medical practitioner or approved clinician the possibility of being given a form of treatment to which section 57 applies or she or he is under the age of 18 years and discusses with a registered medical practitioner or approved clinician the possibility of being given a form of treatment to which section 58A applies.

The help given by an advocate shall include certain specified information, for example: help obtaining information about MHA 1983 provisions, conditions or restrictions to which the patient is subject under the Act, about any medical treatment given, proposed or discussed in her or his case; why it is given, proposed or discussed; the authority under which it is, or would be, given; and the requirements of this Act which apply, or would apply, in connection with the giving of the treatment to him. It shall also include help in obtaining information about and understanding any rights which may be exercised under the Act and help in exercising those rights.

An advocate will have the right to meet in private with the patient and to interview any professionals concerned with the patient's medical treatment. An advocate will also have a right to the production or inspection of any records relating to the detention or treatment and any after-care services provided under section 117 above. This right will be subject to the consent of any patient who has capacity to consent. Where a patient lacks capacity to consent (as defined in the Mental Capacity Act 2005) access will be subject to decisions made by attorneys, deputies or the Court of Protection and must only be allowed by the person holding the records where she or he agrees that the records may be relevant to the help to be provided by the advocate and that the production or inspection is appropriate.

4.3 Electro-convulsive therapy

A new section 58A is inserted into the MHA 1983 by section 27 MHA 2007. This states that except for emergencies – where the patient can be treated under section 62 - ECT (and any other types of treatment as specified by the appropriate national authority) shall be not be given to a patient with capacity to consent unless she or he has consented. Where the patient is not capable of giving consent to the treatment, the treatment can only be given if this is appropriate and would not conflict with an advance decision which the registered medical practitioner is satisfied is valid or a decision made by an attorney, a deputy or the Court of Protection.

4.4 Accommodation for children

A new section 131A is inserted into the MHA 1983. This provides that where a person who is not yet 18 is admitted to hospital, whether under formal powers or as an informal patient, the hospital managers should ensure that the patient's environment in the hospital is suitable having regard to his or her age (subject to his or her needs). The managers must consult a person who appears to have knowledge or experience of cases involving patients who have not attained the age of 18 years.

5. Community Treatment Orders

Sections 25A to 25J which concern 'supervised discharge', are to be removed from the MHA 1983 and effectively replaced by new provisions for supervised community treatment. These are contained in new sections 17A to 17G which make provision for a Community Treatment Order (CTO) to be imposed in certain circumstances (section 17A(1)) and define a person subject to a CTO as a 'community patient' (section 17(7)). An application will be made to the hospital managers by the responsible clinician with a supporting recommendation by an AMHP. A CTO will only be available where the 'relevant criteria' are met, as set out in the new section 17A(5). Section 17B provides that a CTO shall specify conditions to which the patient is to be subject under the order. Under section 17E, there will be power for a community patient to be recalled to hospital in certain circumstances including where the patient does not comply with any condition to make him or herself available for examination. The provisions for CTOs are examined in more detail in a separate legal briefing produced by Mind – see Mind Legal briefings on the Mental Health Act 2007, Briefing 2.

6. Mental Health Review Tribunals

Section 68 of the MHA 1983 is changed so that the duty of hospital managers to refer cases to the Mental Health Review Tribunal (MHRT) applies to community patients and also to people who are still subject to section 2 at the point of referral – in other words, people who continue to be detained for assessment while nearest relative displacement proceedings are taking place. Under the amended section managers will be required to refer the patient at six months from their 'applicable day'. This is the day on which the patient was first detained whether the initial detention was under section 2 or section 3, or the day on which the patient was transferred to a hospital from guardianship. A new section 68A will contain a power for the appropriate national authority to reduce the period in section 68 for automatic MHRT referrals.

7. Other changes

7.1 Principles

Despite strong campaigning by the Mental Health Alliance, the Government refused to use the MHA 2007 to introduce fundamental principles onto the face of the MHA 1983. However, principles will now have to be included in the revised Code of Practice to the MHA 1983. A new section 118(2A) states: "The code shall include a statement of the principles which the Secretary of State thinks should inform decisions under this Act." A new section 118(2B) provides that in preparing the statement of principles the Secretary of State shall, in particular, ensure that each of the following matters is addressed-

1. respect for patients' past and present wishes and feelings
2. respect for diversity generally including, in particular, diversity of religion, culture and sexual orientation (within the meaning of section 35 of the Equality Act 2006),
3. minimising restrictions on liberty,
4. involvement of patients in planning, developing and delivering care and treatment appropriate to them,
5. avoidance of unlawful discrimination,
6. effectiveness of treatment,
7. views of carers and other interested parties,
8. patient wellbeing and safety, and
9. public safety.

7.2 Definition of "medical treatment"

As stated above, the MHA 2007 inserts a new section 145(4) into the definition of 'medical treatment' in section 145 of the MHA 1983. This provides that references to medical treatment "…. shall be construed as a reference to medical treatment the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations."

The definition of 'medical treatment' is also amended so that it covers, in the words of the Explanatory Note which accompanied the 2006 Bill, "medical treatment in its normal sense as well as the other forms of treatment mentioned" - paragraph 49. 'Psychological intervention' is specified in the new definition and the explanatory note lists cognitive therapy, behaviour therapy and counselling as examples. As the Mental Health Act Commission pointed out in issue 17 of it's Policy Briefing for Commissioners, the idea behind specifying that medical treatment includes psychological intervention is probably to reinforce the fact that personality disorders fall within the reach of the MHA 1983's powers.

7.3 Restricted Patients

Section 41(1) MHA 1983 is amended so that time-limited restriction orders can no longer be made by the courts. This change is already in force.

7.4 Increase in penalty for offence of ill-treatment

Section 127 of the MHA 1983 has been amended so that the maximum penalty for ill-treatment or neglect of patients changes from two to five years. This change came into force on 1 October 2007.

7.5 Informal admission of patients aged 16 or 17

Section 131 MHA 1983 is amended so that 16 and 17 year olds who have not consented to informal admission will no longer be able to be admitted where a person with parental responsibility has given consent. Neither will a person with parental responsibility be able to prevent admission where a person aged 16 or 17 and with capacity to make the decision, consents to being admitted to hospital as an informal patient in accordance with section 131. At the time of writing, this change is due to come into force on 1 January 2008.

8. Further Information

This legal briefing provides a general overview of changes, some of which are in force and some of which are expected to come into force in October 2008. It is no substitute for detailed advice.

For further information about the work of Mind's legal unit, please refer to our information sheet, Introduction to the Legal Unit. This is also available in hard copy (T: 020 8519 2122).

For more detailed advice on any of the issues discussed in this briefing you should take advice from a solicitor specialising in this area of the law. Details of where to seek specialist advice can be obtained from the Law Society (www.lawsociety.org.uk, T: 0870 606 2555) or from Community Legal Advice, T: 0845 345 4345. Alternatively, you could contact your local Law Centre or Citizen’s Advice Bureau, who may be able to help.

Keith Dawson
Legal Unit
Mind
Granta House
15-19 Broadway
London E15 4BQ

December 2007