I was at a committee meeting of the Mental Health Faculty of
the College of Social Work the other week, and we were discussing the new Draft
Code of Practice with representatives from the Department of Health (as you do),
and making suggestions for changes.
One of the suggestions related to the length of time it
takes for patients’ appeals and referrals to the Tribunal following a Sec.3., as
it can often be 2-3 months before an appeal is heard. It was suggested that the
new Code should include guidance to the Tribunal to hear these appeals much
more quickly.
While we were talking about this, I suddenly wondered why
detention for treatment under Sec.3
lasts for a whole six months in the first place. This got me thinking.
Being The Masked AMHP, I just love mental health law. I
wrote a blog post a while ago about the Lunatic Asylums Act 1853, one of the
predecessors of the Mental Health Act. There were clear references even that
far back of legislation that eventually evolved into Sec.2, Sec.3, Sec.4 and
even the police powers of Sec.136.
The history of mental health legislation tends to reflect,
and be enacted in response to, changes in the approach to the treatment of
mental disorder. In Victorian times, there were no treatments at all for mental
illness, and therefore legislation was about the humane containment of
“lunatics” until they eventually spontaneously recovered, if ever.
The Lunacy Act 1890 laid down the duration for “reception
orders” for admitting and detaining “lunatics”. The first spell lasted for one
year. If renewal was required, this would last for 2 years. A further renewal
would last for 3 years. After that, the order could be extended for 5 year
periods. And judging by the records of lunatic asylums from the period, people
could often be incarcerated for their entire adult lives.
However, by the time the Mental Treatment Act was enacted in
1930, the concept of “treatment” was even being reflected in the name of the
legislation. Although parts of the older Lunacy Act still remained, the Mental
Treatment Act introduced the concept of voluntary patients, people who
recognised that they were unwell, and who were agreeable to receiving some form
of treatment in a psychiatric hospital.
There was also a category for “temporary patients”. These
were people deemed to have mental illness by two medical practitioners, but who
were not prepared to reside in a hospital on a voluntary basis. The first
period of detention would last for 6 months, and this could be extended, in
three month increments, up to a maximum of 12 months. After that, the patient
would have to be “certified” in writing by the Medical Officer under the Lunacy
Act.
Both of these Acts were repealed by the Mental Health Act
1959. Even the name of this act contained the implication that Parliament was
convinced that a state of mental “health” could be achievable.
Sec.25, the forerunner of the 1983 Act’s Sec.2, introduced a
strict time limit of 28 days for assessment. It could not be extended. Sec.26, the
forerunner of Sec.3, for treatment, then lasted for up to 12 months. It could
be extended for a further 12 months, and after that for 2 years at a time.
The legislators of the Mental Health Act 1983 clearly
thought that an order for detention lasting 12 months was out of order (cough),
so reduced the duration to 6 months, with a further 6 month renewal, and 12
months thereafter.
But the 2007 Act, which amended the 1983 Act, left the
lengths of time for Sec.3 unchanged. Additionally, when introducing Community
Treatment Orders, they used the same timescales.
As regular readers of this blog will know, I am so
incredibly ancient that I was actually a Mental Welfare Officer under the 1959
Act, and used this Act to detain several people under both Sec.25 and Sec.26.
Back then, it was not unusual for mental patients to spend
many years in hospital, either informally, or detained. There were large long
stay hospitals all over the country. There was very little in the way of
treatment in the community.
But the drive since then has been to change the entire
approach to the care and treatment of people with mental disorder from being
centred around a hospital base, to being centred in the community, with
admission to hospital being the exception rather than the norm. This has
undoubtedly been helped by new antidepressants and atypical antipsychotics.
It is now very rare for patients to be detained under Sec.3
for as long as 6 months. In fact, when I inform patients I have assessed that I
am detaining them under Sec.3, and that this will last for up to 6 months, I
always hastily add the proviso: “But it’s very rare for someone to be detained
for that long. Usually, people are not detained for more than two or three
months.”
So taking into account that treatment and practice now means
that it is unusual for a patient to be detained for a full six months, why was
this not addressed back in 2007?
Since there has been a steady reduction in legal lengths of
detention over the last century or so, why was the length of detention under
Sec.3 not shortened further to reflect modern practice? There is a case for arguing that these timescales contravene the Human Rights Act.
I would therefore like to suggest that Sec.3 should last for no more
than three months, with renewals lasting only for another three months at a
time. CTO’s should perhaps have a similar time scale.
I know that this cannot be addressed by a Code of Practice,
and would require a change in primary legislation. But how about it?
The argument for changing the maximum is misguided, as one can appeal and apply to the managers. So where is the human rights issue ? If detention is ever warranted, there should just be more appeals, not a limitation to what is only a maximum (without renewal).
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