The Mental Health Act (MHA), in many of its fundamentals, has been the same since 1959 when a new MHA received Royal Assent from a young Queen Elizabeth II. We now talk about the Mental Health Act 1983, as if a new Act of Parliament was drafted and introduced in the early ’80s and strictly speaking, of course, it was.
But many of the sections of the ‘new’ Act were simply carried over from the 1959 Act —
- Section 2 MHA ’83 is, in fact, just section 25 MHA ’59, for all its essentials — detention in hospital for up to 28 days for ‘observation’, now for ‘assessment’.
- Section 3 MHA ’83 is just section 26 MHA ’59 — detention for up to six months for treatment, renewable for further periods.
- Section 140 MHA ’83 is section 132 MHA ‘ 59 …. etc.! — I had to get that one in, because so many people haven’t heard about s140 sixty-five years on and it annoys me.
So, the ‘admission threshold’ has also been the same for over sixty-five years and ‘by threshold’ I mean the legal words which are contained within the Act which must be satisfied in order to justify the detention of a human being against their will in a hospital under the MHA.
As this obviously engages fundamental rights to liberty and autonomy, so it’s legal business as much as it’s health business and I want us to look at this definition before then making a point about the debate we’re hearing on the news about the implications of the CQC report in to the care of Valdo Calocane. It should be remembered, this report is just a so-called “rapid review” – there will be a full mental health homicide review in due course and, the Prime Minister states, a judge-led inquiry in lieu of an inquest to draw together everything which went on.
The point for this post is this: we’re starting to untangle the care of someone who, very arguably, spent too little time in hospital and was discharged early, more than once. The revised MHA which may emerge during this new Parliament is arguably going to lift the threshold higher than it is now and make ongoing detention harder to justify.
We might need to think about this.
THE LEGAL WORDING
A legal application to ‘section’ someone (under s2 MHA wording) may be made if —
(a) he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and
(b) he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.
The s3 MHA wording is very similar —
(a) he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and
(c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section; and
(d) appropriate medical treatment is available for him.
BREAKDOWN
Let’s look at the individual aspects which must be satisfied —
You could think of it as a checklist to help decide whether you could ‘section’ someone. (We’ll come shortly to the question of whether you should) —
- Mental disorder
- Nature or degree which warrants detention in hospital
- Appropriate to admit to hospital: either for assessment (s2) or treatment (s3)
- And a necessity for the health and safety of the patient OR
- The protection of other persons.
- And in the case of s3 MHA only: the treatment thought required must actually be available in the hospital to which the application is made.
If you can tick all five (or six) of those boxes, you could choose to section someone — whether you choose to do so may be considered against some of the principles of human rights law.
Any state intervention, not just MHA admission, must be proportionate, lawful, appropriate and necessary, etc, in order to represent a proportionate interference with someone’s fundamental rights. So a practical example: if there were a community mental health team of the correct kind in an area where an Approved Mental Health Professional has been asked to assess someone, it may be they could take care of the patient’s healthcare needs and you might find it hard to justify the second and third points, above. If those community teams simply didn’t exist (because they’re not uniform across the country), then you might find it easy to satisfy those points.
But the fourth and fifth bullet points are under-considered in my opinion – or rather the fifth one is in particular.
PROTECTION OF OTHERS
The MHA is really clear: you can detain someone in hospital to protect other people, just as you can detain someone to protect them from themselves. In extreme cases, we know mental health patients end their lives by suicide or misadventure, less often we know they have seriously injured and even killed people. This blog comes after a rapid review of a triple homicide and three other seriously injured members of the public so in this particular context, it’s about the protection of others.
But if you re-read the section 2 and section 3 wording above, you’ll notice it is a “health and safety” OR “protection of others consideration”, you don’t have to have both elements to justify using the Act – albeit you may well have both if you have the second.
Meanwhile in history, these two Mental Health Acts have prevailed during the period we have rapidly reduced the number of inpatient psychiatric beds. In the 1960s, there were around 120,000 beds and now, there are fewer than 18,000. Of course during that time, the population of the UK has grown from 52-million to over 66-million and the number of under the care of secondary care mental health services has more than doubled so far this century, during which time we kept reducing beds and cutting back on community services.
DOING MORE WITH LESS
It’s been pointed out that during the first decade funding of mental health services more than doubled but so did the number of people referred to specialist MH trusts. Since 2010, funding for MH services reduced as did its share of the NHS cake but the numbers referred kept going up. 23% of NHS business is mental health related and prior to 2010, it received 13% of the resources – it now receives under 10% and they’re attempting to manage more patients than ever before.
It’s harder to get yourself sectioned now, because with fewer beds available and more patients under the care of mental health services, it’s a matter of maths. You can’t fit more in to less and there are only two ways you can take the edge off the pressure —
- You can admit fewer people which means declining to admit those now who would have been admitted ten or twenty years ago.
- You admit people for less time, so that those who are admitted are out again faster than previously in order to let you admit another person.
We know from television programmes that mental health trusts are in a near-constant state of siege management around beds. You only have to puruse X (Twitter) to see psychiatrists, AMHPs and mental health nurses lamenting there being no psychiatric beds available in the country for someone who needs one. I’m not convinced that’s always true and I do remember a police officer tweeting from an ED because of a supposed lack of beds and I decided to play with it – within 30-mins I’d managed to establish the MH trust adjacent to the one in which the person was being held in ED had a bed and the dots were joined. But I do accept the principle, beds are squeezed and pressures to access them more acute than ever before – and we have the Coroner’s cases to prove it.
NEW MENTAL HEALTH ACT
The previous government came to a conclusion the 1983 Act needs significant revision and the Wessely Review was set up to do this – I was a part of the advisory group. The new UK Government has committed to introducing a new Mental Health Bill to bring about changes to the Act and we’re yet to learn whether they are going to follow the specific route set out by the last Government or not. Relevant to this post about admissions thresholds is the proposal in the Wessely Review to alter the wordings which you see set out for s2 and s3, above.
The proposal in the last Government’s White Paper (2020) was there must be —
“… a substantial likelihood of significant harm to the health, safety or welfare of the person, or the safety of any other person.”
Substantial. Significant.
Those words are doing a lot of heavy lifting there and some may say those words are as subjective as the original wording whose ambiguity the last government was hoping to correct. There are other laws with which police officers, especially public order commanders, will be familiar where these words play a role but I’m wondering whether they will sound new to AMHPs and psychiatrists who are ‘sectioning’ people. Either way, given it represents the first significant alteration in the wording for decades, it will take years to settle down. We can suggest, however, it represents a raising of the threshold, meaning fewer people will satisfy it in the future.
SLOW DOWN AND THINK
Meanwhile, the Health Secretary’s response to the CQC’s rapid review for Calocane has been to state they will slow down the period of MHA reform they have inherited, only weeks after a new Mental Health Bill was a feature of the King’s Speech.
Could it be someone has realised we’re playing fast and loose with admission criteria (which not only justify admission, but which have to be able to justify continued detention once admitted) with insufficient emphasis on protection of the public and need to balance that off against the stated ambitions of the MHA review to improve therapeutic benefits of admission against clearer grounds for detention?
Winner of the President’s Medal, the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions expressed are my own – they do not represent the views of any organisation. (c) Michael Brown, 2024
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – www.legislation.gov.uk
Mental Health Cop 