The protection of the patients rights through review

Human rights law stresses the need for legal review of psychiatric detention. Article 5(4) of the European Convention on Human Rights, for example, requires that any person deprived of his or her liberty by detention should be entitled to have the lawfulness of his or her detention considered by a court. This right is incorporated in the 1983 Act, with provisions for appeal to a Mental Health Review Tribunal (in Scotland, appeal is to the sheriff). Appeal may be applied for by the patient (or nearest relative), but there is automatic review in the case of those who patients who do not apply for their case to go before a tribunal. This review must be initiated by the hospital manager if the patient has not applied during the first 6 months of detention, or, where there has been renewal of a detention, a patient's case has not been considered by a tribunal for a period of 3 years.

The purpose a Mental Health Review Tribunal hearing is to enable to patient, relatives, or advocate, to bring the patient's case to an independent body which can determine the justification of his or her continued detention or subjection to a regime of guardianship or supervision. A tribunal is not concerned with the legal technicalities of admission or detention, but essentially asks itself the question of whether the patient needs to be the subject of mental health compulsion, or whether he or she can be allowed to rejoin the community. Although tribunals differ from ordinary courts of law in many respects, legal representation is allowed and there is a belief that procedures have become increasingly legalistic. Unlike courts, however, where there is usually full disclosure of the evidence, a hospital may withhold from the patient matters that it considers will cause distress or lead to a deterioration in the patient's condition. This information, however, must be disclosed to a representative of the patient.

An important form of protection for the mentally ill is provided by independent bodies with broad supervisory powers over all matters affecting the welfare of this vulnerable group of people. In Britain, this function is performed by the Mental Health Act Commission (for England and Wales) and the Mental Welfare Commission (for Scotland). The Mental Health Act Commission, which is an independent body set up under the 1983 Act, is composed of both lay and professional membership appointed by the Secretary of State. It has an interest in both the treatment of individual patients and in the broader questions of treatment policy, codes of practice, and the general functioning of the 1983 Act and other mental health legislation. It is also entitled to visit hospitals and other places where patients are detained, and its members may discuss individual treatment and welfare questions with patients. Complaints may be heard by the Commission, but these may be require to be routed through hospital complaints procedures first. The Scottish Mental Welfare Commission has broader powers in some respects; it is empowered, for example, under the Mental Health (Scotland) 1984 Act to discharge patients.

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