II. The Purposes of the draft Bill
- The Explanatory Notes state:
The purpose of this Mental Health Bill is to introduce a new legal framework covering the compulsory care and treatment of people who are suffering from mental health disorders, including mentally disordered offenders. The Bill sets out the framework for determining when and how treatment for mental disorder may be provided on a compulsory basis in the best interests of the patient or to prevent serious harm to other people ... [C]ompulsory treatment may in future be provided where in the opinion of clinicians it can deliver the best care for patients. This could be in a hospital or, in a change from the 1983 Act, in the community.
The Explanatory Notes and the Consultation Document stress that the Government intends to ensure that the reformed structures are compatible with the European Convention on Human Rights.
- The draft Bill is divided into eleven Parts as follows:
Part 1 would require the appropriate Minister to publish a Code of Practice, lay out some important basic definitions, and establish a Mental Health Tribunal (MHT), Mental Health Appeal Tribunal (MHAT) and Expert Panel.
Part 2 sets out the criteria and procedures for compulsorily assessing and treating people with mental disorders, and the safeguards for their interests and rights. Important elements in the protection would be an independent tribunal system (operating an appeal system in accordance with Part 8 of the draft Bill), a 'nominated person' (replacing the present 'nearest relative') who would represent the patient's interests (appointed in accordance with procedures laid down in Part 7 of the draft Bill), and a system of mental health advocates to advise and assist patients and their nominated persons (also provided for in Part 7). For the first time, the protective statutory regime would be extended to child patients.
Part 3 would make provision for compulsory treatment of mentally disordered patients in the criminal justice system, including arrangements to govern their release from detention for treatment. To a great extent, the regime governing prisoners would be brought into line with that for other patients under Part 2 for the first time.
Part 4 would attach special protection (more or less similar to that under the Mental Health Act 1983) to patients for whom certain types of treatment (electro-convulsive therapy, and irreversible or hazardous treatment) are being contemplated.
Part 5 would for the first time introduce a scheme to give safeguards to patients who are not capable of consenting, or withholding consent, to treatment, but who are compliant with directions from professionals. In the past, these have been treated as voluntary patients, and their interests have received no statutory protection.
Part 6 would confer powers of entry, conveyance and detention in relation to patients in need of care and those who are absent without leave from places where they are receiving residential treatment.
Part 7 would put in place systems for appointing nominated persons to represent the interests of patients, and mental health advocates to advise and assist them.
Part 8 would provide for rights of appeal to the Mental Health Appeal Tribunal and the Court of Appeal.
Part 9 provides for various criminal offences in connection with the operation of the system.
Part 10 contains miscellaneous provisions, including an obligation on hospital managers to give information in certain circumstances and rules about justified interference with patients' correspondence.
Part 11 contains the usual provisions about the making of regulations, interpretation, etc.
- In this Report, we examine the human rights issues in the order in which they arise in the draft Bill.