Legal Position of a Formal and Informal Patient Admitted to a Mental Health Facility

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Compare and contrast the legal position of a formal and informal hospital patient suffering from mental disorder.

About 90% of those admitted to psychiatric facilities in England and Wales are admitted ‘informally’[1]. The grounds for this are found in section 131 (1) of the Mental health Act 1983 – nothing in the act shall be construed as ‘preventing a patient who requires treatment for mental disorder from being admitted to any hospital’ – regardless of whether the ‘correct’ procedure has been followed (i.e. recommendations from ASW). The definition of ‘mental disorder is laid out in section 1 of the act.

The legal position of a formally confined patient is much easier to define – as their confinement is by definition – formal – all the formalities of the governing statutes must be followed. Greater confusion can therefore be found in the category of informal patients, where every situation may not be legislated for, and case law may not as yet have filled in the gaps.

It is important to note that people admitted under s131 are not legally confined – and are legally permitted to leave. Those admitted informally also have the same rights as anyone else in society to consent to, or refuse treatment. It was held in R v Kirklees MBC[2] that section 131 applies only to the treatment of patients, and not to their assessment. Assessment is lawful for any patient who consents ‘just as he or she may be admitted to hospital for an operation’[3].

If an informal patient wants to leave, they must complete a report in writing to the managers of the hospital to that effect. If the doctor believes an application for detention ought to be made, they have a holding power under section 5 (2) MHA – allowing the patient to be detained for 72 hours while a full assessment is made.

Allowing a patient to admit themselves enables a more conventional doctor patient relationship. The balance of power stays on a more even footing, allowing patients to feel more in control and a relationship of trust is more likely to be established. Patients who admit themselves are more likely to ask for help when needed and respond and engage in treatment. Studies abroad such as Poulsen 2002 have found, however, that around 50% of patients feel they have been coerced into admitting themselves[4].

Medical staff also have the power to threaten patients with formal admission if they do not consent to treatment[5] - their confinement can therefore be seen in certain circumstances (such as in HL v UK[6] or ‘Bournewood’) as in violation of Article 5 ECHR – the right to liberty[7].

Those patients admitted formally, or ‘sectioned’ arrive in hospital usually through section 2 MHA ’83, and section 3. Section 2 provides the legal basis for a 28 day section, for assessment of the patient. The process involves an application to the senior doctor of the psychiatric facility, following the recommendation of an approved social worker (ASW) a section 12 approved doctor and a registered medical practitioner. There can be no more than five days between either professionals examination of the patient[8].

A patient admitted under section 2 has the right to appeal against their confinement at a Mental Health Review Tribunal (MHRT) – proceedings must, however, be started wihin the first 14 days of the section. A section 2 admission is not renewable. A patient admitted under section 3 is detained for a period of 6 months, renewable once for another six months, and there after renewable annually. The mechanism for renewal is provided for in section 20 (4) MHA’83. Again, the patient is allowed one appeal, in each of these periods.

Patients can also be admitted through police powers contained in section 136. ‘If a constable finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the...
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