Richard Jones, 'Response to MHA Review (1): Removing the distinction between s2 and s3' (8/12/18)
Article This article discusses the fact that the MHA Review does not recommend merging s2 and s3.
Although there are recommendations in the Review's final report that are worthy of support, in my opinion the report in so far as it makes recommendations either to amend the MHA or to revise the Code of Practice is a disappointing document. I intend to write a number of posts over the next week or so to set out my concerns.
The Review correctly states that the "complexity [of the MHA] can be confusing to those who use it". Given that, it is surprising that nowhere in the report is there any consideration of simplifying the Act considerably by removing the distinction between s.2 and s.3. The absence of any reference removing the distinction is particularly surprising as one of the Review's working groups looked at this issue. The legal rationale for the distinction between the two sections was removed by the amendments made to the MHA by the 2007 Act. Both sections now provide clinicians with identical powers. Rather than recommend a single gateway to detention which would be renewable at appropriate intervals, the Review makes recommendations which are clearly focused on reducing the burden on the tribunal service rather than enhancing the rights of patients. In particular, it recommends that the "Code of Practice should make it clear that section 3, rather than a section 2, should be used when a person has been already subject to section 2 within the last twelve months" and that the Code "should be amended so that, where a person has been subject to detention under section 3 within the last twelve months, an application for detention under section 2 can only be made where there has been a material change in the person's circumstances".
Underlying these recommendations, which appear to confuse the roles of legislation and a Code of Practice, is a concern that "section 2 is used too often for patients who are well known to services, and who are not realistically in need of the full assessment required for someone who is not." It is remarkable that the Review is implicitly recommending that a patient who is being admitted to hospital under compulsion, invariably in a crisis situation, is not entitled to a "full assessment" because he is "well known to services": see further the 21st edition of my MHA Manual at para.1-042. Imagine the public and professional outcry that would follow if a similar recommendation was made with respect to a well-known patient who is suffering from a physical disorder. The application of the 'parity of esteem' concept to this issue appears to have escaped the attention of the Review.