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Mental disorder and legal control
Mental disorder
and legal control

PHILIP BEAN
Senior Lecturer, Department of Social Administration and Social Work,
University of Nottingham

The right of the

University of Cambridge
to print and sell
all manner of books
was granted by
Henry VIII in 1534.
The University has printed
and published continuously
since 1584.

CAMBRIDGE UNIVERSITY PRESS

Cambridge
New York New Rochelle
Melbourne Sydney
CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, Sao Paulo, Delhi

Cambridge University Press

The Edinburgh Building, Cambridge CB2 8RU, UK

Published in the United States of America by Cambridge University Press, New York

www.cambridge.org
Information on this title: www.cambridge.org/9780521102865
© Cambridge University Press 1986

This publication is in copyright. Subject to statutory exception

and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.

First published 1986

Reprinted 1988
This digitally printed version 2009

A catalogue record for this publication is available from the British Library

Library of Congress Cataloguing in Publication data

Bean, Philip.
Mental disorder and legal control.
Includes index.
1. Mental health laws—Great Britain. 2. Insane-
Commitment and detention—Great Britain. I. Title.
[DNLM: 1. Great Britain. Mental Health Act 1983.
2. Mental Disorders-rehabilitation-Great Britain-
legislation. 3. Mental Health Services-Great
Britain-legislation. 4. Patient Advocacy-Great
Britain-legislation. WM 33 FA1 B367m]
KD3412.B42 1986 344.4T044 86-6115
344.10444

ISBN 978-0-521-30209-8 hardback

ISBN 978-0-521-10286-5 paperback
For our son Lee
 CONTENTS

Preface ix
Chapter 1 Mental health legislation 1

Section I The admission of patients to mental hospitals 15

Chapter 2 Social workers and applications 17
Chapter 3 Medical recommendations and compulsory admissions 35
Chapter 4 Detention of the mentally disordered in the community 55

Section II Control of patients in the hospital and community 69

Chapter 5 Guardianship and control in the community 71
Chapter 6 The mentally disordered offender and professional
dominance 87
Chapter 7 The discharge of patients from institutions 109

Section III Patients9 rights 127

Chapter 8 Consent and treatment 129
Chapter 9 Mental patients' rights and legal redress 151
Chapter 10 The effectiveness of legal rights 166

Section IV Conclusion 185

Chapter 11 Assessment and conclusion 187

Notes 196
Index 205

vn
 PREFACE

These essays are offered from the perspective of a social scientist. They are
concerned with the 1983 Mental Health Act as it applies to England and
Wales, with its likely effects and its application. The areas covered,
although not exhaustive include the major aspects of the legislation; that is
they include the compulsory admission procedure for non-offender
patients, police powers, guardianship, consent to treatment, offender
patients, guardianship and rights of the patient generally. Whilst not
intending to be a comparative study as such, it is hoped the essays will
highlight some of the issues which are universal and identify questions
which are common throughout.
The essays are concerned with specific topics derived from the legislation
and complete in themselves. That is, a chapter can be independent of the
other chapters with the exception of Chapter 1 which sets the parameters
and defines the terms. Thematically the book is concerned with one piece of
legislation where in each chapter certain basic questions are asked; for
example: what does the legislation say on this topic? What are the
implications sociologically and otherwise for the patient, for psychiatry and
for society generally? Whilst there are many admirable texts on the legal
aspects of this piece of legislation, (see Hoggett, B., 1984 Mental Health
Law, published by Sweet & Maxwell) and many legal guides, the attempt
here is to widen the subject of debate and be less concerned with specific
legal issues or with those affecting the day to day management of the
patient.
The book is divided into three parts. After the introductory chapter,
Section I is entitled The admission of patients to mental hospitals' and

IX
x Preface
includes three chapters; one on the medical practitioners, the other on the
social workers and the third on the police. Section II, entitled 'Control of
patients in the hospital and community' deals with, amongst other things,
the mentally abnormal offender and guardianship. Section III deals with
patients' rights and includes consent to treatment, legal redress in the
courts, and rights related to the Mental Health Act generally. There is also a
short concluding chapter.
It would have been possible, I suppose, for these essays to have been
written by separate authors. To have done so would have doubtless
increased their quality. On the other hand an element of continuity would
have been lost, for books of this nature written by different authors coming
from different academic traditions make it sometimes difficult for the
reader to pick up the threads and for authors to show the extent of their
interests. Hopefully whatever is lost in quality in this book is made up for in
continuity. These essays are written by someone with no axe to grind other
than a deeply held belief that all groups, occupational or otherwise, which
have exemplary powers should have their activities carefully scrutinised.
That, plus an interest in the subject itself, linked to the view that a study of
how we deal with certain selected groups (in this case the mentally
disordered) provides insights into the nature of our society generally.
It is my great pleasure to thank those who have assisted throughout. That
many people have been prepared to give up their time and energies is a
source of comfort and amazement. They are too numerous to mention and
it would be invidious to single out a few from the many. There is another
group however with whom I am more personally associated which can be
mentioned. Mrs Ann Hodson typed the manuscript with her usual
efficiency, William Bingley, Irene Overstone and Gillian Pascall kindly read
the drafts and made valuable comments. My wife Valerie provided more
assistance than anyone could reasonably expect as did our children Ian and
Lee. That this book is dedicated to one is to fulfill a promise made years ago
and that this is now Lee's turn to receive a dedication.

Philip Bean
 CHAPTER 1

Mental Health Legislation

Opportunities to make substantive changes in mental health legislation

occur infrequently. In England and Wales the 1890 Lunacy Act confirmed
and established legalism; that is, admissions to mental hospitals and
treatment in those hospitals were to be governed at all times by statute and
controlled and supervised by government bodies such as the Board of
Control. The emphasis was on the legal rights of the patient (see Bean,
1980). When legalism was found to be unworkable, mainly because of the
stigma said to be associated with mental hospital admissions and the
manner in which legalism prevented patients entering mental hospitals
except by the courts, the 1930 Mental Treatment Act was introduced. That
Act allowed some patients to enter hospital voluntarily, that is without
certification. Thirty years later legalism was swept away, to be replaced by a
medical view of mental disorder, the terms and definition of which were
provided by the Royal Commission preceding the 1959 Mental Health Act
(HMSO, 1957). That commission saw mental disorder generally and mental
illness in particular as being the province of the medical profession. It was,
said the commission, the task of the medical profession to diagnose and
treat such conditions and inappropriate for the lawyer and the courts to
impose and dictate their terms of reference. The commission's view has now
been refined. In the manner in which the 1930 Mental Treatment Act
softened legalism, so the 1983 Mental Health Act has softened the medical
view. If the history of mental health legislation is anything to go by, England
and Wales ought not to expect new legislation before the end of the century,
although it appears organisations such as MIND are eager to promote
changes at a rather faster rate.

1
2 Mental health legislation
To talk of the medical view of mental disorder is to talk generally. The
1959 Mental Health Act (called the 1959 Act from now on) represented the
medical view, yet sustained the powers of the courts in some areas of the civil
commitment procedure. Indeed, the Royal commission preceding the 1959
Act (The Percy Commission) spent a considerable time justifying the use of
legal powers (see Bean, 1985). When we talk of the medical view, or the
medical model, we are talking of a view which was dominant rather than
exclusive. To use such terms is to claim a form of academic licence or
academic convenience. In this context the medical view means support for
the statement of intent made by the Percy Commission; that is mental illness
is an illness like any other, that mental patients should be admitted to
mental hospitals (or their equivalent) on the basis of psychiatric diagnosis
rather than on the decision of the courts, that treatment is primarily if not
solely a matter of clinical judgment, and the method and means of detention
(where required) is also primarily a clinical matter. In contrast, to say that
the 1983 Mental Health Act (called the 1983 Act from now on) or indeed
other comparable legislation represents legalism is to say that one or more
of those features described above is controlled by statute emphasising the
legal rights of the patient.
The 1983 Act has had a short but eventful history (details of which are
given in a note at the end of this volume).1 It was influenced by the
recommendations of a number of government committees, notably the
Report of the Committee on Mentally Abnormal Offenders (HMSO, 1975)
(The Butler Report) and the judgment of the European Commission of
Human Rights on 5 November 1980 (X v. United Kingdom) together with
various research reports and the activities of certain influential pressure
groups, notably MIND (National Association for Mental Health). The
1983 Act is a consolidating Act, having been preceded by the 1982 Mental
Health (Amendment) Act. It has been followed by numerous Government
Regulations, some of which will be cited throughout, and by Codes of
Practice from the newly formed Mental Health Act Commission. At the
time of writing (1985) most of the regulations have come into operation, as
have a few Codes of Practice.
The Act does not seek to produce new principles, rather it seeks to alter
those contained in the 1959 Act. The Parliamentary Under-Secretary of
State made such a point, and worth quoting in full.
The Mental Health Act 1959 was a landmark in the development of care for the
mentally disordered. It established many important principles. Among them are
those which require that where care and treatment in hospital are needed they are
given upon a voluntary basis wherever that is possible and that in those few cases
 Mental health legislation 3
where compulsion does prove necessary it must be subject to strict controls. I doubt
whether anyone would challenge those principles today; this Bill seeks to amend the
1959 Act but it does not challenge those principles. On the contrary it seeks to ensure
that they are more perfectly implemented.
Parliamentary Debates (1.12.1981), p. 933.
What changes have then taken place? According to Lord Elton, the
Parliamentary Under-Secretary of State, they are as follows:
. . . that except in particular circumstances people should not be admitted to
detention for treatment in hospital if their condition is not treatable; the provision of
much more frequent access to mental health review tribunals; the more stringent
regulations of the use of treatment without the consent of the patient; the institution
of a special health authority, with particular responsibility to oversee the powers to
detain and treat patients under the Act; the institution of interim hospital orders, the
powers to remand to hospital for assessment; and I think the limitations of the
powers of a guardian to apply only to people over 16 years of age . . .
Parliamentary Debates. (1.12.1981), p.935.
That seems to be a fair summary of the Act and of the government's
intentions. Where modifications have occurred, they have as a general rule
been with a bias to the rights of the patient. This is not entirely true, for some
changes have been made which benefit the professionals to the detriment of
the patient. Some changes seem entirely neutral; that is, they are aimed at
improving an administrative system. There are some changes where it is
claimed the patient will benefit yet as far as I can see, do nothing of the sort;
they may even make matters worse, (for example, procedures which allow
nursing staff to detain informal patients, see Chapter 3). Perhaps a pastiche
of effects was to be expected, for legislation is never likely to satisfy
everyone.
Mental health legislation in England and Wales is widely based. It
includes those (who we can call patients from now on, to make it easier; and,
for convenience sake, we can also refer to the patients as male) who would fit
into the broad rubric of the mentally disordered. It includes too such
matters as the patient's right to vote, the administration of mental health
services, and the removal of patients overseas. Generally speaking, the
legislation is concerned with two basic questions: first, how should patients
and staff (that is, medical and allied workers) be regulated in the manner in
which patients make contact with psychiatric services; second, how should
patients and staff be regulated in the manner in which psychiatric treatment
is provided. These are timeless questions yet are required periodically to be
updated and reviewed according to changes in contemporary conditions. In
the first the government said it aimed to provide as much opportunity as
possible for patients to seek treatment on a voluntary basis. Where
4 Mental health legislation
voluntary treatment is not forthcoming then, subject to certain conditions
(and including offenders and non-offenders alike) compulsory treatment
should by provided. In the second, that is in the manner in which the extent
and type of treatment provided should be regulated, the Act attempts to
balance the demands of the patient's condition with the types of treatment
to be imposed.
All societies are faced with these questions and all answer them in their
own fashion. In England and Wales non-offender patients are compulsorily
admitted as a result of medical recommendations together with an
application from a social worker or a relative. Some countries use the
courts, others not. In England and Wales some limits are imposed on the
clinical freedom of the medical profession, elsewhere this is different. There
does not appear to be a pattern, or perhaps even a logic, in the way societies
operate; those insisting that the court should determine admission, on the
grounds that liberty can only be taken by the judiciary, appear not to see it
as important to restrict clinical freedom. Some countries mix offender and
non-offender patients in the same system, others not. Of course things are
not as haphazard as this, though they may appear so to the outsider. Each
society grapples with the problems in its own way, some dictated by the
availability of resources, others affected by geographical factors and so on.
The provision of mental health services in remote areas of Canada, for
example, places burdens which do not exist in a densely populated urban
society in England and Wales. In some Third World countries, primary
psychiatric care does not exist, and complex mental health legislation
becomes somewhat inappropriate. In England and Wales, which has a long
history of mental health legislation, historical precedents have been created
and built up, mixed with a tradition where the types of services produce a
unique national flavour. To understand why, say, social workers are
involved in compulsory admissions in England and Wales we need look to
the origin of social work. The same is true of guardianship and so on.
We can go some way towards answering the first question, that is the
manner in which patients make contact with the psychiatrist, by asking
about the legal classification of patients. That is, who are the patients under
the 1983 Act and how does that legislation classify them? The second major
question is much wider and will be dealt with throughout many of the
chapters that follow, more particularly in Sections II and III.

Types of patients
England and Wales, in common with many other countries, have exper-
ienced a steep decline in the numbers of compulsory patients and of beds in
 Mental health legislation 5
mental hospitals. There has been a drop in aggregate and percentage of
compulsory admissions for non-offender patients from about 19% in 1960
to about 10.1% in 1979 (DHSS, 1981). The trend is downward except for
patients detained under Section 136 of the 1983 Act; that is where a police
constable detains someone deemed to be suffering from mental disorder in a
public place (see Chapter 4). Some details of inpatients at one hospital are
given at the end of this chapter.2 Alongside this, at the end of 1954, there
were 344 beds per 100000 of the population; this was halved to 171 per
100000 by 1978. The total number of mental hospital beds was reduced
from 160 000 to 80 000 during the same period. This reduction was due in
part to the discharge of certain long-stay patients but, to a greater extent, to
a decrease in the patients' average length of stay (Roth, 1985).
To speak of formal and informal admissions in this way where one is
contrasted with the other is misleading. I deal with this point in greater
detail later (in Chapter 3). For the present however two points can be made;
first in my view, Thomas Szasz is entirely correct when he says the presence
of legal controls makes a mockery of the term voluntary, for legal controls
can always be used as a threat to secure a voluntary admission (Szasz, 1970).
(The ancient Latin phrase coactus voluit, 'at his will although coerced', sums
it up nicely.) Second, there are some patients (the mentally impaired child or
the demented elderly) who may not be admitted under a formal order but
whose detention is equally real. That they may not require a formal order
matters little, for being unaware of their surroundings and unable to do
anything about it makes the order unnecessary. It does not alter their
predicament. That only 3% of the mentally impaired are formally detained
may, on the face of it, appear satisfactory but only if one sees detention in
formal legal terms. It takes no account of the social reality of these patients.
Moreover to speak of a drop in the number of hospital beds is also
misleading for it could imply that the mental hospital was the sole
institution for the detention and treatment of the mentally disordered. Yet
not everyone in the mental hospital is disordered, and not all the disordered
are in a mental hospital. Mentally disordered patients are dispersed
throughout other institutions, whether they be prisons, the so-called special
hospitals (by that I mean those hospitals which are controlled by the
Secretary of State where admission is only by approval of the Secretary of
State, see Chapter 6), and even old peoples' homes. To illustrate this point
consider the research study conducted by Dr Irene Ovenstone and myself on
admissions to old peoples' homes in Nottingham in 1977 (Ovenstone &
Bean, 1981).
A total of 272 people were admitted of whom 117 (or 43%) were from the
local geriatric hospitals and 155 (or 57%) from the community. All were
6 Mental health legislation
Residents admitted to old peoples' homes in Nottingham and their
medical, psychiatric and behavioural assesssmenta

Patients (N= 272)

Admitted from Admitted from the
hospital community

Per cent (and number) of total 43(117) 57(155)

Per cent (and number) who had undiscovered
medical condition on admission 44(51) 81(126)
Diagnosis of psychiatric condition: per cent
(and number)
Dementia 56(66) 48(74)
Functional mental illnesses 16(19) 14(22)
Mixed conditions 7(8) 12(19)
No psychiatric condition 21(24) 26(40)
Total 100(117) 100(155)
Behavioural assessment for both groups:
percent (and number)
Severely disabled 6(16)
Moderately disabled 77(210)
Independent 17(46)
Total 100(272)
a
l am grateful to the British Journal of Psychiatry for granting permission to reproduce these
data.

given extensive medical and psychiatric examinations together with a

thorough behavioural assessment. The results are best illustrated by a table
(above).
That 79% of those admitted from hospital and 74% from the community
were diagnosed as having a psychiatric condition illustrates the point that
many mental patients, or patients suffering from mental conditions are
elsewhere than in mental hospital. (That 44% had undiscovered medical
conditions, and those of a serious nature, who were admitted from hospitals
says much of the quality of care in general hospitals!) Bearing in mind that
old peoples' homes were designed to cater for the eldery in a manner like
that received by those who wished to pay for their care, it is not suprising
then that old peoples' homes have never been equipped or staffed to deal
with the mentally disordered. There were 17 homes, each catering for
between 45 and 50 residents, in three of the homes there were three qualified
nursing staff, in four there were two, and in the remainder none at all. From
the data given above it is clear that old peoples' homes have become
surrogate psychogeriatric hospitals, and that they lack the necessary
facilities to perform their newly acquired role. We may say with some degree
 Mental health legislation 7
of satisfaction that the long-stay patients in mental hospitals are living in
less overcrowded conditions than hitherto but this may have been achieved
by causing other institutions to take mental patients. A detailed study of
these auxiliary institutions is long overdue; the evidence suggests that more
mentally disordered are living in less-than-suitable conditions, receiving
less-than-adequate care. This point of course is often made by critics of
contemporary forms of community care (see Scull, 1983). What is given less
attention however is the mode of referral. That a patient should go to an old
peoples' home rather than elsewhere seems often to be a matter of chance
and the facilities available at the time rather than part of a coordinated
public policy.

Legal classifications
The architects of the 1983 Act spent a great deal of parliamentary time
debating the nature and types of mental disorder. Sadly their deliberations
have hardly led to an improvement, some critics believing that things are
worse now than before. No doubt the complexity of the subject matter made
it difficult to provide adequate legal definitions but, even so, some
definitions verge on the tautological and others are pedantic and obscure.
Here I wish to describe the legal terminology rather than to examine it in
detail, for the aim is to provide the necessary platform for later discussions.
To summarise: the Act makes two distinctions. First, the generic term
'mental disorder' is used where admission is for assessment (Sections 2 or 4)
or the patient is to be removed to a place of safety (Sections 135 or 136). For
those sections providing for longer periods of detention, the Act requires
that the patient must have one of the four specific forms of mental disorder:
that is, mental illness, mental impairment, severe mental impairment or
psychopathic disorder. Second, and over and above this, the specific forms
of mental disorder can themselves be further classified into major and
minor types of disorders: the major ones being mental illness and severe
mental impairment which justify admission even if hospital treatment is
unlikely to do the patient good, while the minor disorders of psychopathic
disorder and mental impairment justify admission only if treatment is likely
to make the patient better, or (if not) then to stop him from getting worse.
The definitions are contained in Section 1. Section 1(2) says
In this Act -
'Mental disorder' means mental illness, arrested or incomplete development of
mind, psychopathic disorder and any other disorder or disability of mind and
'mentally disordered' shall be construed accordingly:
'Severe mental impairment' means a state of arrested or incomplete development of
8 Mental health legislation
mind which includes severe impairment of intelligence and social functioning and is
associated with abnormally aggressive or seriously irresponsible conduct on the part
of the person concerned and 'severely mentally impaired' shall be construed
accordingly;
'mental impairment' means a state of arrested or incomplete development of mind
(not amounting to severe mental impairment) which includes significant impair-
ment of intelligence and social functioning and is associated with abnormally
aggressive or seriously irresponsible conduct on the part of the person concerned,
and 'mentally impaired' shall be construed accordingly;
'psychopathic disorder' means a persistent disorder of disability of mind (whether or
not including significant impairment or intelligence) which results in abnormally
aggressive or seriously irresponsible conduct on the part of the person concerned;
Section 1(3) adds a caveat.
Nothing in subsection (2) above shall be construed as implying that a person may be
dealt with under this Act as suffering from mental disorder, or from any form of
mental disorder described in this section by reason only of promiscuity or other
immoral conduct, sexual deviancy or dependence on alcohol or drugs.
Mental illness, one of the major forms of mental disorder is not therefore
defined in the 1983 Act nor was it under the 1959 Act. The current omission
is regrettable. It represents a lost opportunity which would have forced
greater attention on the nature of the psychiatric task. As things now stand
there remains the suspicion that mental illness defies definition, needlessly
providing the sceptics and the anti-psychiatrists with much to cling to. 3 For,
in spite of imperfections, the DHSS had earlier produced a definition which
could have formed the basis of further discussions and possibly been
included in the legislation. The DHSS said mental illness means an illness
having one or more of the following classifications:
(i) more than temporary impairment of intellectual functions shown by a
failure of memory, orientation, comprehension or learning capacity;
(ii) more than a temporary alteration of mood of such degree as to give rise to
the patient having a delusional appraisal of his situation, his past or his
future or that of others or to the lack of any appraisal;
(iii) delusional beliefs, persecutory, jealous or grandiose;
(iv) abnormal perspectives associated with delusional misinterpretations of
events;
(v) thinking so disordered as to prevent the patient making a reasonable
appraisal or having reasonable communication with others DHSS (1976).
This definition is not without its flaws yet it remains superior to many
others currently available. The Butler Committee, for example, defined
mental illness as 'a disorder which has not always existed in the patient but
has developed as a condition overlying the sufferer's personality' (HMSO,
1975, para. 1.13). In Canada (Alberta) mental illness includes alcoholism,
 Mental health legislation 9
and in the USA (Indiana) it includes mental retardation, epilepsy,
alcoholism and addiction to narcotic and dangerous drugs (Curran &
Harding, T. 1978, p 36). It is also superior to the definition found in case law
where Lawton (L. J.) said the term mental illness had 'no legal significance'.
It was 'an ordinary word of the English language' and 'should be construed
in the way ordinary sensible people construe such words. I ask myself what
would the ordinary sensible person have said about this patient's condi-
tion . . . ? In my judgment such a person would have said "Well this fellow is
obviously mentally ill.'" (W.V.L. (1974) Q.B. 711, 719, C.A.).
One wonders incidentally why Lawton (L. J.) used the term 'mentally ill';
from the tone of his statement 'mad' would have been as appropriate.
Indeed, Hoggett slips unwittingly into this by referring to this judgment as
the 'man-must-be-mad-test' (Hoggett, 1984,p. 46). From the perspective of
an academic lawyer, Hoggett (1984, p. 46) sees Lawton (L. J.)'s judgment as
'denigrating to the patient and to those who have given the matter careful
and considered thought in recent decades' and also as a lost opportunity
where the courts could have provided a working definition of mental illness,
thereby making it likely that statute law would be forced to follow. Whether
so or not one can see why Lawton (L. J.)'s definition fails to please the
academic lawyer, presumably because it offers so little by way of a
recognition of the complexity of the task.
It is all the more strange then that the DHSS definition should have been
withdrawn, and for the most curious of reasons (namely that 'a lack of
definition has not led to any particular problems', DHSS (1978) para. 1.17).
For whom has it not led to any particular problems? Those who operate the
Act or those at the receiving end? Generally speaking, definitions or the lack
of them are of little consequence and often remain matters of convenience
(except, of course, in legal matters). Legal definitions help determine entry
into certain types of facilities or determine who shall receive this or that type
of punishment. They also exclude those failing to meet the definitional
requirements. The need to include and exclude is equally important if rights
(and, in this case, the right to treatment) are to be matched with rights to
remain free from coercion. As matters now stand, mental illness - the most
common form of mental disorder, and the form most often used in
compulsory admissions - remains undefined and, in the 1983 Act by
implication, therefore a matter solely of clinical judgment.
Turning to 'severe mental impairment' and 'mental impairment', it will
be remembered that severe mental impairment is a major form of mental
disorder, that is it justifies admission even if hospital treatment is unlikely to
do the patient good. 'Severe mental impairment' and 'mental impairment'
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