Why 'substantial risk' clause in Mental Health Bill could trigger litigation 

Many provisions of the revised draft Mental Health Bill lack clarity and some of its clauses could lead to more litigation, says Capsticks' partner, Ashley Irons. He tells Lucy Trevelyan why...

Many provisions of the revised draft Mental Health Bill lack clarity and in its present form will lead to more litigation, says Capsticks partner, Ashley Irons. He says: "The most significant omission from this Bill compared to the previous version is the absence of any reference to DPSPD (dangerous patients with severe personality disorder), even though the Privy Council decided in the widely reported Anderson BLD 1810013296 case that the Scottish equivalent was a “proportionate” response and entirely consistent with the European Convention on Human Rights.

“It seems that the Government has been alarmed at the expense and/or potential litigation and/or accepted the advice from many quarters that it was a retrograde step. Instead if someone is regarded as a ‘substantial risk’ of harm to others, no proof is required that it is ‘necessary to’ formally detain.

“The drafting is poor given that future Tribunals will pick over every syllable of this particular clause and it can only encourage litigation, in its present form.“

He says, however, that the intention is clear from another Government publication which states that the change has been made because those with personality disorders have not ‘been brought under formal powers because of uncertainty about whether their disorder can be ’.

He adds: “Where someone comes within this category, Tribunals can reserve to themselves the right to make decisions about discharge, transfer and leave of absence. This is presumably to meet the criticism from the medical profession that they were being expected to police many of the Bill’s provisions.”

He says the draft Bill is very much a mixed bag, with some sensible provisions as well as some which are bound to be unpopular.  “Patients are likely to review these provisions with mixed feelings. For example, while the Mental Health Act Commission (MHAC) will disappear in favour of the Commission for Healthcare Audit and Inspection (CHAI), patients may ask whether attention to individual cases will suffer at the expense of scrutiny of hospital functioning generally.

“While reducing the number of judicial reviews, the Mental Health Appeal Tribunal is likely to be busy as there are no qualifications that limit access to it. In contrast, a judicial reviews cannot be pursued unless permission to bring it is given by the Court first. This means that legal work will be generated rather than diminished.”

He says that a statutory right to a specialist advocacy representative will be welcome, as will be an independent scrutiny/veto by Mental Health Tribunals (MHTs) of treatment proposals – something already stated by the Court of Appeal to be desirable.

“Patients will welcome the absence of emergency powers of nurses to compulsorily detain but will have mixed feelings about the aftercare provisions, which state that there must be a ‘deferred order’ if there is likely to be a relapse following discharge within eight weeks in the absence of such services. This is unlikely to remedy ongoing difficulties of aftercare arrangements actually being put in place.

“Some patients may welcome compulsory treatment in the community, if it means that the alternative of detention in hospital is avoided. However, it is unlikely to receive a warm welcome. Patients will be concerned that a broad definition of mental disorder, may lead to more being detained than before (eg MS, epilepsy or substance misuse). However, patients will welcome a high threshold being applied to harm than in the Mental Health Act 1983.”

He adds: “The most significant change is that doctors can no longer determine treatment for patients – it must be authorised by a MHT. No electro-convulsive therapy (ECT) can be given without MHT sanction unless the patient agrees to it.

“The MHT will be advised by an expert panel and they will prepare a report. On the assumption that the parties will see this, it represents a major departure from common practice in that the current opinion of the medical member of the Tribunal is rarely known during the course of Tribunal proceedings (even though the courts seem to be under the impression that views of medical members are always made clear!).”

(30/09/04)

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Legislative annotations in other services:-
Mental Health Act 1983.

Case annotations in other services:-
*Anderson and others v Scottish Ministers and another (PC).