United Kingdom - England
2011: Restrictions of freedom
The conditions for involuntary internment
The Mental Health Act 2007 contains details of the procedure for the admission and compulsory detention of a person in a hospital. However, this does not mean that compulsory detention is the only possibility. Section 131 states:
"Nothing in this Act shall be construed as preventing a patient who requires treatment for mental disorder from being admitted to any hospital or mental nursing home in pursuance of arrangements made in that behalf and without any application, order or direction rendering him liable to be detained under this Act, or from remaining in any hospital or mental nursing home in pursuance of such arrangements after he has ceased to be so liable to be detained."
Consequently, if it is possible for a person to be admitted on a voluntary or informal basis, this should be considered before resorting to compulsory detention. In fact, involuntary internment should only be considered as a last resort. If a mentally incapable person does not object to entering hospital and receiving care or treatment, admission should be informal. In this case, the doctor in charge of the mentally incapacitated person is responsible for deciding on admission. S/he should make this decision on the basis of what is in the patient's best interests and is justifiable according to the common law doctrine of necessity.
In addition to this the Mental Health Act will introduce the Deprivation of Liberty safeguards by amending the Mental Capacity Act England and Wales in April 2009. The safeguards will provide a structure for health professionals when deciding whether detention of an adult in a hospital or care home is in their best interests. The adult will be able to appeal against the decision once it has been made.
The conditions for admission to hospital for assessment
Under section 2 of the Mental Health Act 2007, a person can be admitted to hospital and detained there for not more than 28 days if the following conditions are fulfilled:
"he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and
he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons."
The conditions for admission to hospital for treatment
The person may be further detained subject to the provisions for admission for treatment. An application for admission for treatment may be made (under section 3 of the Mental Health Act 2007) if the following conditions are fulfilled:
"he is suffering from mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and
in the case of psychopathic disorder or mental impairment, such treatment is likely to alleviate or prevent a deterioration of his condition; and
it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section."
The procedure for admission and involuntary internment
According to the Mental Health Act of 1983, in order to have a person admitted to and detained in hospital for assessment, the application must be supported by two written recommendations made by two registered medical practitioners each including a statement that the conditions for admission have been fulfilled. An application for admission for treatment must also be founded on two written recommendations from registered medical practitioners. They must include details of the mental illness or disorder the person is suffering from (both agreeing on one form of disorder even if additional disorders are not mentioned by both) and an explanation of why other methods of dealing with the patient are not being used or are not appropriate, if available. The 2007 Act extends the list of people who can be called upon to decide whether someone ought to be sectioned.
An application for admission must be submitted to the managers of the hospital to which admission is sought. This may be made either by the nearest relative of the patient or by someone from the list of approved health professionals. The applicant must have seen the person within the last 14 days. Before or within a reasonable time after the application has been made, the applicant must inform the person who appears to be the nearest relative of the patient that an application has been made or is due to be made. If this person objects to admission, the application cannot go ahead. On the other hand, it is the duty of the health professionals to make an application for admission to hospital if a person seems to be in need of it and to make sure that detention in a hospital seems to be the most appropriate way of providing the care and medical treatment the patient needs. However, if the nearest relative objects, the application cannot be made.
The duration of involuntary internment
Once admitted, a person can be detained for a period not exceeding 6 months. This can be prolonged by a further 6 months. However, within two months of admission, the responsible medical officer must review the patient's case and discharge him/her unless the conditions for admission for treatment (mentioned earlier) are fulfilled. The 2007 Act abolishes the 'treatability test' and introduces a new 'appropriate medical treatment' test. Consequently, it will not be possible for patients to be compulsorily detained or their detention continued unless medical treatment which is appropriate to the patient’s mental disorder and all other circumstances of the case is available to that patient.
Emergency admission and short-term detention
In cases of emergency, an application can be made either by a health professional on the approved list or the nearest relative of the patient. It must be stated in the application that it is of urgent necessity for the patient to be admitted and detained in hospital and that making the normal application would involve undesirable delay. The patient can be admitted into hospital for 72 hours in order to allow enough time for the second medical recommendation to be obtained.
A patient who is receiving treatment for mental disorder on an in-patient basis can be prevented from leaving a hospital if it appears to a nurse that s/he is suffering from a mental disorder to such a degree that it is necessary for his/her health or safety or for the protection of others that s/he be restrained and that it is not practicable to find a medical practitioner for the purpose of furnishing a report. In this case, the nurse must make a record of this measure being applied and can then detain the patient in the hospital for a period of six hours. The nurse must then make a report to the managers of the hospital.
According to section 136, if a constable finds in a public place a person who seems to be suffering from mental disorder and in need of immediate care or control, s/he may take the necessary steps to remove that person to a safe place if this would be in the interests of that person or for the protection of other people. Once removed, the person can be detained for a period of 72 hours, during which time s/he may be examined by a registered medical practitioner and interviewed by an approved social worker with a view to making the necessary arrangements for treatment or care.
Section 152 of the Housing Act 1996 states that the High Court or a county court may, on application by a local authority, grant an injunction prohibiting a person from engaging in threatening behaviour or conduct causing a nuisance or annoyance to other residents. If there is reason to believe that the person is suffering from mental illness or severe mental impairment, the judge may remand the accused person to a hospital for a report on his/her mental condition under section 25 of the Mental Health Act 1983.
Section 6 of the Mental Capacity Act 2005 defines restraint as the use of force or the threat to use force where a person with incapacity resists, and any restriction of liberty or movement whether or not the person with incapacity resists. A person may legitimately use restraint only if s/he reasonably believes that it is necessary to prevent harm to the person with incapacity and provided that the restraint used is proportionate to the likelihood and seriousness of the harm.
Ill-treatment and neglect
Part IX of the Mental Health Act 2007 deals with offences including abuse. Paragraph 127 states that it is an offence for any person who is an officer, manager or member of staff employed in a hospital or mental nursing home to ill-treat or wilfully to neglect a patient who is receiving treatment for mental disorder as either an in-patient or out-patient. It is also an offence for any individual to ill-treat or wilfully neglect a mentally disordered patient who is subject to guardianship under the 2007 Act or is otherwise in the individual's custody or care.
In 1995 the General Medical Council, which is the statutory body for doctors, stated that doctors should disclose information to the relevant people if they believe that a patient is a victim of neglect or physical or sexual abuse. If the patient does not consent to disclosure of the information, the information should only be disclosed if the doctor considers that it would be in the best interests of the patient.
The Mental Capacity Act 2005 made it a criminal offence to ill treat or neglect a person who lacks capacity, with a maximum sentence of five years or a fine.
Warrant to search and remove
According to section 135 of the Mental Health Act 2007, a justice of the peace can issue a warrant to search for and remove a person believed to be suffering from a mental disorder from a place if s/he is of the opinion that this person is being ill-treated, neglected or not kept under proper control or alternatively, if the person seems to be unable to care for him/herself and is living alone. The warrant may be issued on the basis of information provided on oath by an approved social worker. A constable, who is named in the warrant, may enter into any building where the person is believed to be residing using force if necessary.
Harassment and causing fear of violence
Under the Protection from Harassment Act 1997, it is an offence for a person to pursue a course of conduct which amounts to harassment of another and which s/he knows or ought to know amounts to harassment. It is considered that a person "ought to know" that a particular action amounts to harassment if a reasonable person in possession of the same information would think that the course of conduct (an act committed on at least two occasions) amounted to harassment of another. Conviction of such an offence may lead to a claim for compensation and in certain cases an injunction to restrain the accused. Conduct is understood to include speech.
It is also an offence under this act to behave in such a way as to cause another person to fear, on at least two occasions, that violence will be used against him/her. As with harassment such behaviour is judged on the basis of how another person with the same information would view it.
The Road Traffic Act 1991 contains a few articles relating to offences involving driving when unfit to do so, e.g.:
A person who causes the death of another person by driving a mechanically propelled vehicle dangerously on a road or other public place is guilty of an offence.
A person who drives a mechanically propelled vehicle dangerously on a road or other public place is guilty of an offence.
If a person drives a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, he (or she) is guilty of an offence.
According to the provisions of this act, a person is regarded as driving dangerously if the way s/he drives falls far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous.
Section 93 of the Road Traffic Act of 1988 deals with the withdrawal of driving licences. This states that the Secretary of State can serve a notice in writing and revoke a driver's licence at any time if s/he is satisfied on inquiry that the licence holder is suffering from a relevant disability. Under the previous section of this act "relevant disability" is defined as any prescribed disability as well as any other disability likely to cause the driving of a vehicle by the person in question to be a source of danger to the public.
Obligations concerning licensing requirements and insurance
Once a person who holds a current driving licence is diagnosed as suffering from dementia, s/he is legally obliged to inform the Driver and Vehicle Licensing Authority (DVLA). The same applies if s/he wishes to obtain a new licence. Failure to report the diagnosis to the DVLA is a criminal offence punishable by a fine of up to £1,000.
It is a criminal offence to drive without at least third party car insurance. A person who has received a diagnosis of dementia must inform his/her insurance company, as failure to do so jeopardises the validity of the car insurance.
Carrying on driving once a diagnosis of dementia has been made
A person with dementia who decides to continue driving should contact the DVLA and request a medical investigation. The DVLA then sends a questionnaire to the person requesting permission to obtain reports from his/her doctor and specialists. A formal driving assessment may also be required. If on the basis of the medical information, the DVLA decides that the person should be allowed to continue driving, it issues a licence, which is valid for a period of one year.
If a person who has been diagnosed as having dementia fails to report the diagnosis and also carries on driving against the advice of his/her doctor, that doctor may inform the DVLA if there is a significant deterioration in the person's condition. Other people, such as a family member, a neighbour or a police officer, who are concerned about a person's ability to drive, may also contact the DVLA and ask them to make a medical investigation.
 The use of "he" reflects the actual wording of the legal text. Here and in the rest of this report, it should also be understood to refer to "she".
 For more info on this issue, please refer to: R v Bournewood Community and Mental Health NHS Trust ex parte L (1998 3 All ER 289) and section 3 for details about the doctrine of necessity.
Last Updated: Wednesday 14 March 2012