The grounds for compulsory intervention

British legislation makes a distinction between informal and formal patients, the former being those who enter hospital voluntarily and those who are compelled to accept hospital treatment for a mental disorder. The philosophy underlying the 1983 Act was that, where possible, the treatment of patients in the former category should proceed on the same basis as the treatment of patients in non-psychiatric patients, with the patient being free to leave hospital or refuse treatment if he or she wishes. The regime governing compulsory treatment is more formal, with clear criteria being set out as to the grounds upon which such treatment may be imposed and the periods for which it may be imposed.

The 1983 Act allows for admission for assessment or removal to a place of safety if a person is suffering from, in the language of the statute, mental disorder. This is a broader criterion than is applied where a patient is admitted for treatment; in that case, he or she must suffer from one of four specifically identified forms of mental disorder, namely, mental illness, severe mental impairment, psychopathic disorder, or mental impairment. The mere fact of suffering from mental illness is not in itself grounds for admission for treatment: the illness must be 'of a nature or degree which makes it appropriate for him to receive treatment in a hospital' (Section 3 (2) (a)). This requirement should exclude from hospital those who can just as easily receive treatment in a less restrictive setting, such as the home, or the community. In practice, since medical treatment is defined in Section 145(1) of the Act as including 'nursing and care' it is legally permissible to detain a patient in hospital even if nothing more than this can be provided.

A further condition that must be satisfied before a patient may be detained in hospital for treatment is that hospital admission must be necessary 'for the health or safety of the patient or for the protection of others'. These are two separate justifications, the first being paternalistic in its inspiration, the second subordinating the therapeutic goal to that of public protection. The first of these grounds for admission—that of the health or safety of the patient—is widely accepted as justifying compulsory powers, notwithstanding the argument that the only acceptable grounds for compulsion are harm to self or others. The extent to which such criteria are open to human rights criticism depends on the interpretation of the concept of 'health' and the point at which the health of the patient is thought to be sufficiently compromised by mental disorder to justify compulsory intervention. In practice, this will be a medical decision, although appeal or review will bring lay (and judicial) examination of the medical decision. What is clear, however, is that if there is a recognized mental illness according to accepted psychiatric views as to what constitutes a mental disorder, then this may be sufficient to bring compulsory treatment of an unwilling patient. The law does not stipulate in advance how serious this illness must be and there is no requirement that there should be a severe or grave threat to the health of the patient. Any mental illness which requires hospital treatment may therefore result in compulsory hospitalization. The criterion is need, and the law entrusts the medical profession with the interpretation of need. Some countries have more restrictive legislation and focus on danger to self or others.

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