Psychiatry and the Law

At the heart of the relationship between psychiatry and the law is the issue of responsibility. Mental disorder, by virtue of its severity and/or quality, may impair individuals’ responsibility for their thinking and actions. The law in most Western countries provides for the compulsory admission and/or treatment of mentally disordered persons for their own protection and/or the protection of others and for mitigation in the case of mentally disordered individuals who commit a criminal offence.

In England and Wales the law relating to the care and control of the mentally ill has evolved out of common law. The Act of Parliament that is crucially involved is the Mental Health Act of 1983. This Act is concerned not merely with provisions governing the compulsory admission and treatment of mentally disordered persons, but also with patients’ rights, appeals tribunals and the overall supervision of the use of compulsory powers. The Act is divided into a number of sections, each of which deals with a different aspect of the process. The Mental Health (Scotland) Act 1984 and the Mental Health (Northern Ireland) Order 1986 contain clauses broadly similar to those in England and Wales.

Apart from one provision of the National Assistance Act 1948, the Mental Health Act 1983 is the only method whereby individuals can legally be deprived of their liberty without having committed a crime or being suspected of comrruttmg a crime. It is, therefore, very important that doctors understand the seriousness of their responsibility and the details of the legislation.

There are three conditions that need to be met before an appropriate compulsory section form is signed. The patient must be:

1 Suffering from a defined mental disorder
2 At risk to his/her and/or other people’s health or safety
3 Unwilling to accept hospitalization voluntarily

The reasons why there is no alternative approach to the treatment suggested for the patient should be outlined.

Important sections of the Mental Health Act 1983.
Important sections of the Mental Health Act 1983.

Sexual deviance or alcohol or drug dependence are not mental disorders, but otherwise the definition of mental disorder is broad and includes:

• Mental illness
• Mental impairment
• Severe mental impairment
• Psychopathy

Any registered medical practitioner may sign a medical recommendation under the Act, but the added signature of a specialist psychiatrist approved under Section 12 is needed for compulsory orders lasting for more than 72 hours. Unless the patient is already in hospital, the nearest relative or an approved mental health social worker is also required to sign the application form. Important sections of the Act are detailed. Sections 4, 5(2), 5(4) and 136 cannot be extended by repetition.

They must be converted to a Section 2 or 3 if prolonged detention is necessary. Likewise, Section 2 should be converted to a Section 3 if required. Patients on the longer orders (2 and 3) can appeal to a Mental Health Review Tribunal. The Act also deals with consent to treatment, guardianship, mentally abnormal offenders and hazardous treatments. A Mental Health Act Commission supervises the Act, provides second opinions and regularly visits hospitals. Although much of the process of detention against one’s will is formalized, there is no liability for a doctor who acts in good faith with a patient’s best interests at heart. Clearly written medical notes, accepted forms of treatment and common sense remain the basis of good practice.

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