'Critically evaluate the role and the relationship between professionals and lay persons in the process of civil admissions under the Mental Health Act 1983.'
'Critically evaluate the role and the relationship between professionals and lay persons in the process of civil admissions under the Mental Health Act 1983.'
The process of civil admissions under the Mental Health Act (MHA) 1983 may be viewed by civil libertarians as a violation of the individual's freedom. The state's justification for such a 'violation' is for the need to protect the individual concerned or to protect others in society. The Mental Health Act 1983 does not explicitly require that an individual would have to be 'dangerous' in order for that individual to be admitted to hospital. However, there has developed a 'dangerousness' criterion, (whether the individual would be considered to be 'dangerous' to himself or others) which is often mentioned as being the requirement for confinement; and it forms part of a public interest to preserve public peace and safety. However, as Bartlett and Sandland state; 'the desire to protect individuals from harming themselves is less evidently a public interest.'1 The paternalistic notion of the 'dangerousness' criterion is clearly evident. However, there is uncertainty over the application of the criterion and also confusion over how the person would be considered to be 'dangerous.' Furthermore, Price states that; ' a clear dichotomy should be created between parens patriae (detentions in the best interests of the individual him or herself) and police power (detentions for the protection of others) commitments.'2
The main provisions of the MHA 1983 regarding civil confinement are contained in sections 2 and 3.3 Section 2 of the MHA 1983 allows for 'assessment' of a patient with any mental disorder who ought to be detained in the interests of his own health and safety or for the protection of others for 28 days, which are non-renewable. Section 3 allows for 'treatment' of a patient who is suffering from one of the specific categories of disorder,4 which is deemed 'necessary' for the patient's health or safety or for the protection of others.
The process of civil confinement requires an application for admission to the hospital from either an 'approved social worker' (ASW) or the 'nearest relative' (NR) of the individual who is to be confined. The applications must also be certified by two medical recommendations (one medical recommendation will suffice in an emergency under s.4). Section 26 (1) of the MHA 1983 provides the legal definition of the NR. The relatives of whole blood are usually preferred over relatives of half-blood. In the event that there are two relatives of the relevant class, the elder of the two will usually be chosen as the 'nearest relative'.
Section 114 (2) of the MHA 1983 requires that ASWs should have 'appropriate competence in dealing with persons who are suffering from mental disorder.' An ASW must also undergo twelve weeks of training and must also attend regular refresher courses. This is in contrast with the NR, who does not require any specialist training or knowledge. It is also a divergence from the duties of the Mental Welfare Officer under the Mental Health Act 1959, who also did not require any specialist training to undertake their duties.
Their expertise in the area of compulsory admission process places the ASW in a better position than the NR in making an application for admission of the patient. However, the NR is placed on an 'equal footing' as the ASW in making an application.5 An ASW is also under a duty to inform and consult the NR prior to making an application; an NR would also have to consult an ASW, if they were making an application. An ASW must also interview the patient and provide a report to the hospital.6
The Mental Health Act 1983 Code ...
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Their expertise in the area of compulsory admission process places the ASW in a better position than the NR in making an application for admission of the patient. However, the NR is placed on an 'equal footing' as the ASW in making an application.5 An ASW is also under a duty to inform and consult the NR prior to making an application; an NR would also have to consult an ASW, if they were making an application. An ASW must also interview the patient and provide a report to the hospital.6
The Mental Health Act 1983 Code of Practice7 has stated that all those involved in the admissions process should work together effectively. The Percy Commission felt that the majority of applications should be made by the NR, with assistance from an ASW, if needed.8 The Code of Practice, who envisaged that all those parties involved in the admission process would work together, may not have contemplated that there would be any friction between the parties involved in the process. Many ASWs feel strongly against the NR making the application because, in their view, it harms the family relationship. This view of ASWs has been reinforced by MIND, which has argued for the role of the NR to be abolished.9
The reasoning behind ASWs' view that NRs should not be allowed to make applications, may be more likely to do with the fact that if the NR is not involved, it may increase their power in the admission process, rather than for the protection of family relationships. The ASW may hold a shallow view of the NR because they do not have any expertise in the area, yet they are allowed to do the same job as the ASW. Therefore, in the view of the ASW, there is a great need to assert their superiority over the NR, by demanding that the NRs should be removed from making applications, and thereby, protecting their area of expertise. However, there are situations where the NR would be in a far better situation to understand the needs of the patient, because they may have known the patient for most of their lives.
The NR has a power of veto over an application for treatment, if he or she disagrees with the ASW. However, the ASW or any other relative or person whom the patient was residing with prior to being admitted to hospital, may apply to the County Court under section 29 to have the NR removed and substituted. The court may remove an 'unreasonable' NR if it finds that the application is necessary10 and the test would be that of the objective welfare test in W v L.11
If a patient who has been admitted under section 2 is being transferred for treatment under section 3, the NR may object. However, whilst the application under section 29 is being heard, the 28 day period may be extended until the hearing is finished, and may also be extended for a further seven days.12 The case of R v Central London County Court and another, ex parte London,13 states that a patient may be admitted under section 3, during the hearing of a section 29 order, if there are compelling arguments for doing so. This decision has provided a 'loophole' for ASWs to apply for a section 2 before applying for section 3, thereby avoiding the power of veto.
Sections 2, 3 and 4 require that an application for admission must be 'founded on' the necessary medical recommendation, which no longer have to precede the application.14 Sections 2 and 3 require two medical recommendations to take place. Only one of the practitioners need have any expertise in the diagnosis or treatment of the mental disorder, and it is likely that the other would be a General Practitioner. In a study conducted by Bean, he found that; 'GPs, generally speaking, knew little of the [Mental Health] Act, and knew little of psychiatry.' 15 Therefore, GPs may feel that they have lesser authority than the specialists and may just be following the instructions of the specialists. Section 4 requires only one medical recommendation, which does not have to be made by a psychiatrist. This raises the issue whether section 4 is being used by ASWs as a method for saving time. However, the Code of Practice states that section 4 should not be used for 'administrative convenience.'16
There is an issue of the civil liberties of patients who have been admitted to hospitals, which has raised concerns regarding some of the roles and powers of medical staff, when restraining patients from leaving the hospital. Section 5 (4) allows for a nurse to be nominated by a Responsible Medical Officer, to hold a patient for up to six hours until the arrival of a medical practitioner who is authorised to detain the patient. Fennell states that:
'...the holding power is one of the first signs of statutory recognition of the role of nurses in mental health care, it has been viewed with some circumspection and anxiety by nurses themselves, and has proved to be one of the most controversial areas of the 1983 Act.'17
The working relationship between professionals and lay persons in the civil admissions process is in reality much different than how the Code of Practice would have imagined it to be. The Code of Practice states that all those persons working in the admission procedure should base their work on a 'framework of cooperation and mutual support.'18 The reality is that there is tension between lay persons (NRs) and professionals (ASWs) because they share similar roles in the admission process. ASWs feel that their area of expertise is being threatened by NR's, who do not have any specialist training, yet can still make an application. Some ASWs may also find that the NR's power of veto to a section 3 application, is obstructive to their work. However, it must be stressed that it is of fundamental importance that the NR has a say in any matter concerning their relative.
One of the aims of the Percy commission was that professionals should adopt a multi-disciplinary approach to mental health care. The desire of professionals to act independently and autonomously has caused much tension between ASWs and doctors. Cavadino states that the two professions view each other with 'low esteem' and they seem reluctant to share power and territory.19
There may be times when the ASW does not agree with the decision of a psychiatrist to admit a patient; in such situations tensions between professionals may run high and there may be a lack of communication and both professionals may have different perspectives on mental health care. In a study conducted by Bean, he found that psychiatrists were more likely to rate a patient 'dangerous to others' than ASWs.20 In such a situation, the psychiatrist may perceive the ASW as lacking the skills to diagnose and the ASW may view the psychiatrist as infringing the patient's civil liberties.
Walton states that; 'ASWs find that adopting an independent position in relation to health professionals, particularly psychiatrists, is a key element in their task of forming a social view of service users' situations.'21 There is no doubt that the assertion of the ASW's independence produces an unhappy working relationship with the psychiatrist. Cavadino states that a much better working relationship may be achieved between ASWs and psychiatrists, if ASWs are based in hospitals.
Fennell states that during disagreements between GPs and ASWs over a patient's compulsory admission, GPs have occasionally advised the NR to make an application for compulsory admission, if the ASW does not wish to do so.22 This type of practice clearly contravenes the Code of Practice.23 It could be argued that GPs and other health professionals may not be aware of the requirements of the Code of Practice or have disregard to it. This is in contrast to ASWs, who regard it as central to their practice when making assessments under the MHA 1983. Therefore, this may highlight the greater need for statutory force to be given to the Code of Practice so that all health professionals are aware of their requirements and conduct whilst undertaking their duties.
It must be noted that NRs may not always be acting in the best interests of the patient, when making an application for admission. For example, if the patient is living with the NR, they may feel that the patient is a burden on them and they may wish to have the patient hospitalised. The recent case of JT v UK,24 highlighted that a change in the law is needed, so that patients can have NRs replaced where the patient reasonably objects to a certain person acting in that capacity. In this case, the UK authorities have agreed to amend the MHA 1983 to permit patients in having the NR replaced.
In light of some of the proposals that are included in the government green paper,25 it seems that the relationship between professionals and lay persons may not improve. The proposals significantly reduce the role and involvement of ASWs in the admission process. This may cause great resentment amongst ASWs, who consider themselves as 'specialists' in the area and argue for a more social, rather than a medical perspective to be used to cater for patients' needs. Although, the government still insist that professionals should apply similar theoretical and practical skills to mental health related problems, the reforms will be seen as a huge setback to ASWs.
The reduction of the ASWs involvement in the compulsory admission procedure, reinforces the view that psychiatrists are held to be superior to ASWs; and that ASWs should have a subordinate role to psychiatrists. Although, there is no doubt that the civil liberties of patients should be upheld, there is also a greater need to maintain the roles of ASWs and NRs so that there is an element of social thinking involved in civil admissions, which may cater better for certain patients.
Bartlett, P and Sandland, R, 'Mental Health Law Policy and Practice', Blackstone Press Ltd, 2000, p.92.
2 Price, P.T.D, 'Civil commitment of the mentally ill: compelling arguments for reform', Medical Law Review, 2, Autumn 1994, 321, p.321.
3 The other provisions relating to civil confinement are contained in sections 2, 3, 4, 5, 135 (1), and 136.
4 Section 1of the Mental Health Act 1983 defines the specific categories of disorder.
5 Section 11 (1), Mental Health Act 1983.
6 Section 14, Mental Health Act 1983.
7 The Mental Health Act 1983 Code of Practice Department of Health and Welsh Office (1999) London: HMSO.
8 Royal Commission on the Law relating to Mental Illness and Mental Deficiency 1954 - 1957, (The Percy Commission) (1957), Cmnd 169, London: HMSO, para. 403.
9 Cavadino, M., 'Mental Health Law in Context: Doctor's Order?,' (1989), Aldershot: London, p.117.
0 B (A) v B (L) (Mental Health Patient) [1980] 1 WLR 116.
1 [1974] QB 711.
2 Section 29 (4), Mental Health Act 1983.
3 [1999] 3 WLR 1.
4 Whitbread v Kingston and District NHS Trust (1997) The Times, 14 July.
5 Bean, P., (1980), 'Compulsory Admissions to Mental Hospitals', Chichester: John Wiley, p.162.
6 The Mental Health Act 1983 Code of Practice Department of Health and Welsh Office (1999) London: HMSO, para. 6.2.
7 Fennell, P., 'Detention and Control of Informal Mentally Disordered Patients,' [1984] Journal of Social Welfare Law, 345, p.345.
8 The Mental Health Act 1983 Code of Practice Department of Health and Welsh Office (1999) London: HMSO, para. 2.3.
9 Cavadino, M., 'Mental Health Law in Context: Doctor's Order?,' (1989), Aldershot: London, p.114.
20 Bean, P., (1980), 'Compulsory Admissions to Mental Hospitals', Chichester: John Wiley, p.157.
21 Walton, P., 'Reforming the Mental Health Act 1983: an approved social worker perspective,' Journal of Social Welfare Law 22 (4) 2000 401, p.407.
22 Fennell, P., 'The Mental Health Act Code of Practice,' Modern Law Review, Vol. 53, July 1990, 499, p.504.
23 The Mental Health Act 1983 Code of Practice Department of Health and Welsh Office (1999) London: HMSO, paras. 2.30 - 2.31.
24 Application No. 26494/95 (European Court of Human Rights , 30 March 2000).
25 Reform of the Mental Health Act 1983 (Cm 4480, 1999).