qualified mental health professional. In establishing whether or not to use com-
pulsory powers, the professionals must be certain that the patient has a mental
disorder that warrants further assessment/treatment and whether without this the
patient or others will be placed in a situation of harm.
The second stage will be one of formal assessment and initial treatment, rather
than the decision to do so. The patient will be detained for up to 28 days and it is
expected that a care plan is produced within 3 days of this detention commencing.
To continue detention after this 3 day period, the clinical supervisor will have to
believe the criteria for longer term detention are met. These criteria are covered in
the third and final stage, where patients will only be detained after their case has
beenexaminedbytheTribunal.Inadditiontotheexistenceofamentaldisorder,the
Tribunal must be satisfied it warrants care and treatment to protect the interests of
the patient or others and that there is a care plan which addresses the therapeutic
benefits to the patient, or if the patient is a risk to others, that deals with managing
the patient's behaviour. The Tribunal will only be able to authorise detention for a
maximum of 6 months initially, but can on review extend the period.
As can be seen, this new regime has clear links to the existing legislative
structure, but is now one of much more legal formality. The powers of the Tribunal
will not only be in relation to detention of patients, but will also extend to the
treatment of the patient in the community. However, the White Paper does not go
so far as to suggest that treatment will be forcibly given to patients in the com-
munity except in a clinical setting [70] ± the fact that the White Paper does not
define clinical setting being of some concern.
In addition to the detention provisions, there are also changes to the safeguards
suggested [71]. These include the appointment of a nominated person who will
ensure that the patient and their best interests are represented, the setting up of a
patient advocacy service and the requirement for specified treatments to be
administered to the patient only after approval from a doctor on the expert panel to
the Tribunal or where the patient has consented. Safeguards will also be intro-
duced for those patients deemed incapable but compliant, as in theBournewood
case referred to earlier [72]. In these situations the patient will have to be fully
assessed, a care plan produced, and the patient seen by a doctor on the Tribunal
experts panel who confirms or changes the care plan. The patient's records will
include this finalised care plan. Disagreements as to the nature of the care plan
raised by relatives or carers are expected to be dealt with informally without
recourse to the Tribunal.
While the need for reform of the MHA is perhaps overdue in today's NHS
structure, it must be a reform that in reality addresses all the concerns arising from
the MHA's shortcomings. The question of whether the reforms expounded in the
White Paper can achieve this will be debated long after the passing of a new Mental
Health Act.
9.10 Notes and references
- See generally, Hoggett, B.M. #1996)Mental Health Law,4th Edn, Sweet & Maxwell,
London; Gostin, L.O.Mental Health Services: Law & Practice,Looseleaf, Shaw & Sons,
London; and Jones, R.M. #1999)Mental Health Act Manual,6th edn, Sweet & Maxwell,
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