Reform of the Mental Health Act 1983 – Convention Implications of the Green Paper

Paul Bowen

doi:10.19164/ijmhcl.v0i4.296

Abstract

Assessing the Convention compatibility of the Government proposals for reform of the Mental Health Act 1983 set out in the Green Paper1 is largely an exercise in speculation, for three reasons.First, the proposals are very broad; the detail, where the devil may be found, is yet to come.Second, the Convention does not permit the Strasbourg authorities to review the legality of national legislation in the abstract, but only with reference to particular cases after the proceedings are complete2. Although that will not necessarily preclude a domestic court from reviewing the lawfulness of any provision of the new Mental Health Act after incorporation of the Human Rights Act 19983, the comments that can be made in this article are necessarily confined to the<br />general rather than the specific.Third, and perhaps most significantly, it is impossible to predict the impact of the Convention following the coming into force of the Human Rights Act 1998 on 2 October 2000.

Highlights

And perhaps most significantly, it is impossible to predict the impact of the Convention following the coming into force of the Human Rights Act 1998 on 2 October 2000
That will not necessarily preclude a domestic court from reviewing the lawfulness of any provision of the new Mental Health Act after incorporation of the Human Rights Act 19983, the comments that can be made in this article are necessarily confined to the general rather than the specific
Perhaps most significantly, it is impossible to predict the impact of the Convention following the coming into force of the Human Rights Act 1998 on 2 October 2000

Summary

14 Similar criteria apply governing a patient’s admission into guardianship

15 R v Home Secretary ex p K [1991] 1 Q.B. 270 16 Kay v United Kingdom (1998) 40 B.M.L.R. 20. Where a patient does not contest a Compulsory Order, it is suggested that ‘the tribunal decision should be straightforward, a one-person panel should be sufficient and there should usually be no need for an oral hearing’ (Chapter 4, §39) Neither is it considered essential for an independent second opinion to be sought ( the Tribunal would have a discretion to obtain one). There is a real danger that the Tribunal would become a ‘rubber-stamp’, in the absence of an independent second opinion or a medical member on the sitting in the Tribunal In those circumstances it would be difficult to say that the patient had been ‘reliably shown, upon objective medical expertise’ to be suffering from a qualifying disorder, in accordance with Article 5(1).

(3) Discharge procedures

22 Decision of 18 July 1986