IMPLEMENTING THE 1983 MENTAL HEALTH ACT
1
MENTAL HANDICAP VOL. 12 JUNE 1984 Legal IMPLEMENTING THE 1983 MENTA Sir - Mr. Newbould’s letter (Mental Handicap, 1984, 12:1, 39) gives the opportunity to consider the transitional arrangements of the Mental Health Act, 1983 laid down in Schedule 5. They are complicated. The present intention is not to offer a survey of them all, but to respond to the issues Mr. Newbould raised. Essentially the function of Schedule 5 is to ensure that what was being done properly under the 1959 Act did not have to cease immediately on an arbitrary date: 30th September, 1983. Thus there is a run- in period for the full operation of the 1983 Act in relation to patients already detained in hospital (including those liable to be detained) or received into guardianship. Schedule 5 paragraph 1 indicates that in general, any periods of time specified in the old legislation in force on 30th September, 1983 will be replaced by the corresponding provisions of new legislation, calculated from the commencement date of the old detention order or guardianship application. There are, however, three exceptions as given in Schedule 5, paragraph 9. The first part establishes that a person admitted to hospital for treatment or made subject to a guardianship application before 1st October, 1983 can be detained for up to one year rather than the new period of six months. The second part establishes that if the authority to detain has been renewed once before 1st October, 1983, detention will last for one year and, if it has been renewed more than once, for two years. The new periods of renewal are six months and one year respectively. This second part, however, is subject to the third, which states: “Where an authority has been renewed on or before 30th September, 1983 for a period of two years of which less than 16 months has expired on that date that period shall expire at the end of 18 months from the date on which it began.” To consider the effects of paragraph 9, let us take a number of hypothetical examples: (1) Alan was admitted to hospital under section 26, MHA, 1959 on 31st July, 1983. He could be detained until 31s July, 1984. (2) Brian’s detention under section 26, MHA, 1959 was renewed for the first time on 5th August, 1983. His detention could last until 5th August ,L HEALTH ACT September, 1983, the period remaining was 21 months. That means that less than 16 months of the original period had run. Consequently, the authority to detain would cease 18 months from 30th June, 1983, that is, on 31st December, 1984. The new definitions of mental disorder do not take immediate effect (paragraph 6). If the authority to detain is renewable, the provisions of section 20 of the 1983 Act apply on that renewal, and from then on the 1983 Act applies in full force in relation to that patient. Paragraph 7 indicates that the new conditions do not apply to applications made before 30th September, 1983, even if the admission took place after that date. A number of other provisions also require comment. 1. Guardianship ceased on 30th September, 1983 for persons under 16 on that date (Schedule 5, paragraph 8 (1)). 2. The new powers of the guardian (section 8(1) of the 1983 Act) had immediate effect (Schedule 5, paragraph 8(2)). 3. The regulations in respect of treatment requiring the patient’s consent or a second opinion, section 58(3) of the 1983 Act, did not come into immediate effect for patients already detained, unless the new requirements had already been complied with. From 1st April, 1984, however, the regulations do apply so that if a detained patient has been, for example, receiving drugs since 1st January, 1984 or before, the provisions of section 58 apply to the continuation of the administration of that medicine (Schedule 5, paragraph 18(1)). The requirements of section 58 will apply to many detained patients and it is incumbent upon hospital staff to devise a means whereby they can be fulfilled with no break in the provision of necessary treatment. This imposes a need to anticipate the requirements by a month or so. 4. All patients detained in hospital on 30th September, 1983 should have had their position regarding the provisions applicable during their detention and their rights of applying to a Mental Health Review Tribunal explained to them, as required by section 132 of the 1983 Act, as soon as practicable after 5. Schedule 5 has some effect upon the nearest relative. The nearest relative cannot discharge a patient who, on 30th September, 1983, was detained under section 25 of the 1959 Act (Schedule 5, paragraph 10). If the nearest relative had made an application to a Mental Health Review Tribunal but had then ceased to be the nearest relative by virtue of the changes introduced by the 1983 legislation (section 26), the application would have nevertheless gone ahead (Schedule 5, paragraph 11). 6. Schedule 5, paragraph 12 provides for patients under 16 to retain a right of application to a Mental Health Review Tribunal if they were admitted to hospital for treatment, or were subject to a guardianship application, or were admitted to hospital under a hospital order before 30th September, 1983. This right was exercisable within the first six months of admission under the 1959 Act. 7. The requirement in section 68( 1) of the 1983 Act, that managers of hospitals should automatically refer to a Mental Health Review Tribunal cases of persons admitted to hospital who had not exercised their right to apply to a Tribunal, does not apply to people admitted to hospital more than six months before 30th September, 1983. The duty under section 68(2) of the 1983 Act, to refer cases every three years if patients do not apply themselves, is imposed only after the detention of the patient has been renewed under the 1983 Act (Schedule 5, paragraph 13). Thus the duty to refer Cyril’s case, mentioned earlier, would arise on 1st January, 1988. Paragraphs 31 to 42 of Schedule 5 are concerned with patients who were detained under Schedule 6 of the 1959 Act on September 30th, 1983. The object is the same: to provide a run-in period for the application of the 1983 Act. These paragraphs are not commented upon here, but specific assistance can be provided if requested. Not all the provisions of Schedule 5 have been dealt with in this letter, but it is hoped that those of widespread application have been covered in a fashion which fulfils Mr. Newbould’s call for the legal profession to render assistance in presenting understandable explanations of mental health legislation. 1984. (3) Cyril’s detention under section 26, MHA, 1959wasrenewed on 30th June, 1983. If the full period could run it would last for two years and end on 30th June, 1985. But, on 30th particular patient. 2RD. that date-(Schedule 5; paragraph 19). The information should have been given to each patient in such a way as to explain the effect of Schedule 5 on that MIKE GU”, Lecturer in Law, University of Nottingham, University Park, Nottingham NG7 0 1984 British Institute of Mental Handicap 86
Transcript of IMPLEMENTING THE 1983 MENTAL HEALTH ACT
MENTAL HANDICAP VOL. 12 JUNE 1984
Legal IMPLEMENTING THE 1983 MENTA
Sir - Mr. Newbould’s letter (Mental Handicap, 1984, 12:1, 39) gives the opportunity to consider the transitional arrangements of the Mental Health Act, 1983 laid down in Schedule 5. They are complicated. The present intention is not to offer a survey of them all, but to respond to the issues Mr. Newbould raised.
Essentially the function of Schedule 5 is to ensure that what was being done properly under the 1959 Act did not have to cease immediately on an arbitrary date: 30th September, 1983. Thus there is a run- in period for the full operation of the 1983 Act in relation to patients already detained in hospital (including those liable to be detained) or received into guardianship.
Schedule 5 paragraph 1 indicates that in general, any periods of time specified in the old legislation in force on 30th September, 1983 will be replaced by the cor responding provis ions of new leg is la t ion , ca lcu la ted f rom the commencement date of the old detention order or guardianship application. There are, however, three exceptions as given in Schedule 5, paragraph 9. The first part establishes that a person admitted to hospital for treatment or made subject to a guardianship application before 1st October, 1983 can be detained for up to one year rather than the new period of six months. The second part establishes that if the authority to detain has been renewed once before 1st October, 1983, detention will last for one year and, if it has been renewed more than once, for two years. The new periods of renewal are six months and one year respectively. This second part, however, is subject to the third, which states:
“Where an authority has been renewed on o r b e f o r e 3 0 t h September, 1983 for a period of two years of which less than 16 months has expired on that date that period shall expire at the end of 18 months from the date on which it began.” To consider the effects of paragraph 9,
let us take a number of hypothetical examples:
(1) Alan was admitted to hospital under section 26, MHA, 1959 on 31st July, 1983. He could be detained until 31s July, 1984.
(2) Brian’s detention under section 26, MHA, 1959 was renewed for the first t ime on 5 th August, 1983. H i s detention could last until 5th August
,L HEALTH ACT
September, 1983, the period remaining was 21 months. That means that less than 16 months of the original period had run. Consequently, the authority to detain would cease 18 months from 30th June, 1983, that is, on 31st December, 1984.
The new definitions of mental disorder do not take immediate effect (paragraph 6). If the authority to detain is renewable, the provisions of section 20 of the 1983 Act apply on that renewal, and from then on the 1983 Act applies in full force in relation to that patient. Paragraph 7 indicates that the new conditions do not apply to applications made before 30th September, 1983, even if the admission took place after that date.
A number of other provisions also require comment. 1 . Guard iansh ip ceased on 30th
September, 1983 for persons under 16 on that date (Schedule 5, paragraph 8 (1)).
2. The new powers of the guardian (section 8(1) of the 1983 Act) had immedia te effect (Schedule 5 , paragraph 8(2)).
3. The regulations in respect of treatment requiring the patient’s consent or a second opinion, section 58(3) of the 1983 Act, did not come into immediate effect for patients already detained, unless the new requirements had already been complied with. From 1st April, 1984, however, the regulations do apply so that if a detained patient has been, for example, receiving drugs since 1st January, 1984 or before, the provisions of section 58 apply to the continuation of the administration of that medicine (Schedule 5, paragraph 18(1)). The requirements of section 58 will apply to many detained patients and it is incumbent upon hospital staff to devise a means whereby they can be fulfilled with no break in the provision of necessary treatment. This imposes a need to anticipate the requirements by a month or so.
4. All patients detained in hospital on 30th September, 1983 should have had their position regarding the provisions applicable during their detention and their rights of applying to a Mental Health Review Tribunal explained to them, as required by section 132 of the 1983 Act, as soon as practicable after
5. Schedule 5 has some effect upon the nearest relative. The nearest relative cannot discharge a patient who, on 30th September, 1983, was detained under section 25 of the 1959 Act (Schedule 5, paragraph 10). If the nearest relative had made an application to a Mental Health Review Tribunal but had then ceased to be the nearest relative by virtue of the changes introduced by the 1983 legislation (section 26), the application would have nevertheless gone ahead (Schedule 5, paragraph 11).
6. Schedule 5, paragraph 12 provides for patients under 16 to retain a right of application to a Mental Health Review Tribunal if they were admitted to hospital for treatment, or were subject to a guardianship application, or were admitted to hospital under a hospital order before 30th September, 1983. This right was exercisable within the first six months of admission under the 1959 Act.
7. The requirement in section 68( 1) of the 1983 Act, that managers of hospitals should automatically refer to a Mental Health Review Tribunal cases of persons admitted to hospital who had not exercised their right to apply to a Tribunal, does not apply to people admitted to hospital more than six months before 30th September, 1983. The duty under section 68(2) of the 1983 Act, to refer cases every three years if pa t ien ts do not apply themselves, is imposed only after the detention of the patient has been renewed under the 1983 Act (Schedule 5, paragraph 13). Thus the duty to refer Cyril’s case, mentioned earlier, would arise on 1st January, 1988.
Paragraphs 31 to 42 of Schedule 5 are concerned with patients who were detained under Schedule 6 of the 1959 Act on September 30th, 1983. The object is the same: to provide a run-in period for the application of the 1983 A c t . These paragraphs are not commented upon here, but specific assistance can be provided if requested.
Not all the provisions of Schedule 5 have been dealt with in this letter, but it is hoped that those of widespread application have been covered in a fashion which fulfils Mr. Newbould’s call for the legal profession to render assistance in presenting understandable explanations of mental health legislation.
1984. (3) Cyril’s detention under section 26,
MHA, 1959was renewed on 30th June, 1983. If the full period could run it would last for two years and end on 30 th June , 1985. But , on 30th particular patient. 2RD.
that date-(Schedule 5 ; paragraph 19). The information should have been given to each patient in such a way as to explain the effect of Schedule 5 on that
MIKE GU”, Lecturer in Law, University of Nottingham, University Park, Nottingham NG7
0 1984 British Institute of Mental Handicap 86
