Psychiatric Emergencies and the Law. The Impact of the Mental Health Act (1959)

142 Pages·1968·3.621 MB·English

by  F. E. Kenyon (Auth.)

PSYCHIATRIC EMERGENCIES
AND THE LAW
The Impact of the Mental Health Act (1959)
BY
F. E. KENYON
M.A.(CAMB.), M.B., B.CHIR., M.D.(CAMB.),
M.R.C.P.(EDIN.), D.P.M.(ENG.), D.P.M.(LOND.)
Consultant Psychiatrist,
The Warneford Hospital, Oxford, and
Clinical Lecturer in the Medical School,
University of Oxford
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1968
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Preface
THERE has not been, as yet, a large-scale assessment of the impact of the
Mental Health Act (1959), one of the most important pieces of legisla-
tion in the long history of man's attempts to come to terms with mental
illness. But however * liberal', humanitarian, or forward-looking such
measures be, there must always be provision for the relatively rare
occasions when some sort of compulsory action is necessary. This
burden has now almost completely passed to the medical profession, but
how has this affected the type of patients considered suitable for this
action, the sort of treatment they immediately receive, and their ultimate
fate ? It was to try to answer these types of questions that the present
investigation was undertaken.
The practical implications of such policies are most readily highlighted
in the big cities, and nowhere more so than in London. Also in that
City there is a long tradition, based largely on the work of the mental
observation wards, of the expeditious treatment of all those requiring
emergency care. These observation wards, so often abused in the past,
have seen sterling service in providing * front-line' facilities, particularly
as most of the psychiatric hospitals serving the City are situated so far
away.
The observation wards have therefore offered a most useful and
sensitive device for measuring the effects of social, medical, and legisla-
tive changes, particularly in respect of acute mental disturbances. This
is why for the present study admissions to London's largest observation
ward were investigated both before and after the implementation of the
Mental Health Act.
Not only has the legislation itself changed but also the observation
wards, many having been adapted in one way or another to meet changing
needs. One of the most impressive of these has been the informal
admission of patients, whereas up to quite recently all were admitted
under a compulsory procedure. This is therefore another reason for
studying, as is done here, a traditional observation ward in its own right,
in order to take stock and plan for the future in the light of what has gone
before without being hustled too precipitately into a new era.
This then is a record not only of the impact of recent legislation but
also of the recent history of society's (with London as the paradigm)
vi PREFACE
efforts to define and deal with all those who present with acute
behavioural disturbances and who were thought to be victims of mental
disorder and in need of care and protection. It is based on a thesis
accepted by the University of Cambridge for the degree of Doctor of
Medicine.
The objects of the present study may be considered as being:—
i. To present a descriptive study, based on the author's personal
experience at London's largest Mental Observation Ward (Psychiatric
Emergency Unit), of the characteristics of patients who require emer-
gency care for mental disorder.
2. To examine changes in the form and course of illness requiring
emergency care that follow legislative action, such as the passage of the
Mental Health Act (1959).
3. To examine subgroups which present particular problems in
management and treatment, and to determine the adequacy of existing
social and legal measures for dealing with them.
4. From the above results to discuss possible improvements and
future needs for the emergency care and further treatment of mentally
disordered patients, especially in London.
I am indebted to a number of people for their help. Mrs. A. Pritchett
for her help in finding and abstracting basic data from the observation
ward records and case notes; Sir Aubrey Lewis for his initial help in
planning the project; Professor M. Shepherd for continued interest and
advice; and Miss M. A. Davidson, Mrs. H. Santer, and Mrs. R. Paton
for help with the statistics.
Oxford, 1968 F. E. K.
PSYCHIATRIC EMERGENCIES
AND THE LAW
I
Old Legislation and the Mentally III
PSYCHIATRY, like no other branch of Medicine, has been bedevilled by
laws, statutes, acts, etc., often of interminable length, couched in terms
and presented in forms difficult to read and remember. Much of the
stigma attached to mental illness is a consequence of there always being
some form of compulsory detention for treatment, some form of' certifi-
cation ' and being 'put away\ Changes in terminology have been
one effort to overcome the stigma, e.g., asylum to mental hospital to
psychiatric hospital.
The whole complex evolution of the social and legal measures con-
cerned with the care of the mentally disordered has recently been well
reviewed in two monographs (Jones, 1955, i960). Major new legis-
lation seemed to have been enacted every forty years or so (i.e., 1845,
1890, 1930), with the intervals becoming shorter in recent years. In its
origin the provision for 'lunatics' had been closely linked with the
problems of pauperism. Wynn's Act in 1808 set up County Asylums
4 for the better care and maintainancy of lunatics, being paupers or
criminals in England'. As late as the 1920*3 90 per cent of admissions to
asylums came through poor-law channels (Hearnshaw, 1964).
The Lunacy Act of 1890 consolidated the Lunacy Act of 1845 and its
three amending Acts of 1853. As regards the relatively lowly status of
British psychiatry at this time a recent historian blames the administra-
tive system in which psychiatry developed in this country : ' The lunacy
legislation and the asylum building of the Victorian era had four main
aims in view: first, to remove the public scandal and nuisance of the
lunatic at large ; secondly, to salve the Victorian humanitarian conscience
by doing away with physical restraint and squalor in the management of
the insane; thirdly, by the medico-legal procedure of certification to
safeguard the sane individual from being wrongly locked up; and
fourthly to do all this as cheaply as possible by establishing large
2 PSYCHIATRIC EMERGENCIES AND THE LAW
asylums capable of being economically administered. These aims were
largely achieved by the Lunacy Commissioners presided over from
1834-85 by the 7th Earl of Shaftesbury. A growing number of lunatics
were accommodated as the century progressed. In 1859 the lunatic
population numbered 36,762 (18-67 Per 100,000 of the population of
England and Wales) ; by 1899 it had risen to 105,086(31-11 per 100,000);
by 1907 to 123,988 (35-48 per 100,000). The Lunacy Act of 1890,
which consolidated earlier legislation, and remained in force with
modifications, until 1959, laid down the routines for certification and
asylum administration. ' (Hearnshaw, 1964.)
With regard to observation ward practice the sections dealing with
emergency admissions are the most relevant. An 'urgency order' under
Section 20 of the Lunacy Act was a 3-day order and was applied by
Relieving Officers. These latter became known as Duly Authorized
Officers (D.A.O.s) and today are called Mental Welfare Officers
(M.W.O.s). They were specially trained laymen, employed by the local
authority (D.A.O.s), for the purpose of helping the pauper lunatics. By
this order patients could be compulsorily detained in an observation ward
for 3 clear days, unless discharged within this time by a J.P. Police
constables had similar powers.
Hospitals or special parts of hospitals vested in the Minister were
' designated ' for the purpose of Section 20 for the reception of patients
for short periods in cases of emergency. A J.P. who was entitled to make
a reception order under Section 21 could order the temporary detention
of a patient in a hospital similarly designated. The patient could then be
detained for 14 days.
An institutional medical officer's order in writing (Section 24) could
also detain a patient for 14 days and very often this was applied to
extend the 3-day order of a patient admitted under Section 20, particu-
larly when the J.P. made 'no order'. After the units became vested in
the Minister of Health a rewriting of Section 20 became necessary.
Workhouses ceased to exist and Section 21A was introduced to replace
Section 24; this Section then enabled the 3-day order to be extended for
a further 14 days by the medical officer. The revised version of the
Section is given in the Ninth Schedule to the National Health Service
Act (1946) which reads :—
'If a Duly Authorised Officer of the local health authority or any
constable is satisfied that it is necessary for the public safety or for the
welfare of a person alleged to be of unsound mind with regard to whom
it is his duty to take any proceedings under the Act, that the person
should, before any such proceedings be taken, be placed under care and
control, the officer or constable may remove the said person to any
hospital or part of a hospital vested in the Minister (whether a mental
hospital or not) which is designated by the Minister for the purposes of
this Section, and the person in charge of the said hospital or part shall
OLD LEGISLATION AND THE MENTALLY ILL 3
receive and detain the said person therein, but no person shall be
detained under the Section for more than three days. ' (Norris, 1959.)
Under this régime, in force up to 1959, many of the decisions about
the detention and further certification of mental patients rested with lay-
men, e.g., D.A.O.s, J.P.s, Police. The Justices were the most important
and would attend the observation ward three times a week to assist in
the disposal of patients.
Disposal took several different forms. (1) Death in the unit. (2) Dis-
charge under Section 22, which had to be authorized by a magistrate,
and for which a relative or friend gave a written undertaking to accept
responsibility for the patient. (3) Transfer to a general hospital or
nursing home. (4) Transfer of cases of senile dementia to Tooting
Bee Hospital under a special procedure which avoided certification.
(5) Transfer to a mental hospital under Section 16 as a certified patient.
(6) After 1930 transfer was also possible as a voluntary patient or as a
'temporary' patient for acute non-volitional patients of good prognosis.
A quotation from a recent study of St. Francis's Observation Ward
helps to put this in perspective. ' The original purpose of the observa-
tion unit was to provide beds for emergency psychiatric problems who
were considered by the layman to be certifiable, at least at the time he
admitted them. The Ward had to see that they were properly certified
after the three day period had elapsed and had to decide to which
hospital they should be transferred during the next fourteen days. Alter-
natively, they could send them with voluntary status for treatment or
make a non-statutory arrangement for them, or they could be discharged
to the community. The proportions who were certified dwindled
each year until well under half were considered to require it (although
a higher proportion of police admissions were certified than were
admitted through the D.A.O.). . .. It was because the observation
wards became blocked with old people waiting to be transferred else-
where that the L.C.C. had to change its policy to avoid wherever possible
the admission of old people to observation wards.' (Lawson, 1966.)
Police admissions were a continuation of the policy to admit those
deemed of ' unsound mind ' to a ' place of safety '.
The overall central co-ordinating body during the period was the
Board of Control, which met for the last time in October, i960. The
Board comprised four senior commissioners with medical or legal
qualifications, and the British Medical Journal had this to say about its
work in an * obituary' notice. * The work of the Board has been going on
for well over a hundred years, for though it was not set up under its
present title until after the passing of the Mental Deficiency Act of
1913, it continued to carry out functions under the Lunacy Acts pre-
viously undertaken by the Lunacy Commissioners. The English Law
concerned itself with people of unsound mind from very early times, but
the Lunacy Commissioners did not come into existence until 1845, wnen
4 PSYCHIATRIC EMERGENCIES AND THE LAW
Lord Ashley, later the Seventh Earl of Shaftesbury, was appointed their
first chairman. It was Lord Ashley who introduced into Parliament the
two Bills which later became the Lunacy Acts of 1845. The main
functions of the Board of Control up to the coming into force of the
National Health Service Act were to supervise mental health services of
local authorities, to register and inspect voluntary mental hospitals and
homes, and to concern itself with the liberty of the subject and with
legal procedures applied to individual patients. Since 1845 the Board's
work has been mostly connected with the last of these functions and with
the administration of three Special State hospitals—Broadmoor,
Rampton, and Moss Side.' (Annotation, i960.)
These were the conditions that appertained until 1959 and therefore
to the patients in the present study who were admitted in the years
1957-8. The passing of the Mental Health Act (1959), like the Mental
Treatment Act (1930) before it, was the result of the setting up of a
Royal Commission.
In 1954 a Royal Commission was set up to inquire into the legal
aspects of mental illness and mental deficiency, and the Minutes of
Evidence (1954-7) and the final Report (1957) were eventually pub-
lished (Royal Commission, 1957). Just over eighteen months after the
publication of the Report the Mental Health Bill was published and in-
corporated most of the important reforms suggested by the Royal Com-
mission. This subsequently became the Mental Health Act (1959)
which is fully discussed in the next section.
In the Minutes of Evidence Dunkley (1955) and Asher (1957) gave
evidence about observation ward practice. The former reviewed his
experience at a London Observation Ward and stated that Section 21A
was invoked on all patients except (1) when neither was necessary nor
possible, (2) when relatives pressed for immediate discharge, or (3) when
immediate certification was called for. He wished the provisions of this
section to remain. Asher (1957) pleaded for the abolition of the D.A.O.'s
power to admit patients to observation wards and urged for the invest-
ment of this power in the medical officers. He also expressed the opinion
that it would be beneficial if all patients were initially admitted to an
observation ward.
2
The Main Provisions of
the Mental Health Act (1959)
ONE of the principal aims of the Act has been to minimize the differ-
ences between those suffering from mental and physical disorders. It
also introduced new terminology, dispensed with the ritual of certifica-
tion, kept compulsory measures down to a minimum, and abolished the
layman's role in matters involving a decision on a patient's mental state.
All mental disorders were now officially classified into four groups:
mental illness (not defined), subnormality, severe subnormality, and
psychopathic disorder.
The overall picture is well described by Maclay (i960, 1963). The
Act itself is lengthy and consists of 9 parts, 154 sections, and 8 schedules,
but follows closely the recommendations of the Royal Commission.
However, a mass of confusing legislation was cleared away, including the
Lunacy and Mental Treatment Acts of 1890-1930 and the Mental
Deficiency Acts of 1913-38. It repealed fifteen Acts in their entirety
and thirty-seven in part. In general, mentally disordered patients were
to be treated as far as possible in the same way as the physically ill.
Statutory designation of hospitals was abolished so that any suitable
hospital was free to admit mental patients.
Most of the substance of the Act is taken up with measures which
need only be applied to comparatively small numbers, e.g., 69 of the
154 sections in the whole Act are devoted to compulsory measures, but
in 1958 over 85 per cent of those entering mental hospitals and over
70 per cent of admissions to mental deficiency hospitals were voluntary.
Part IV of the Act deals with the circumstances in which patients may
be compelled to enter hospital. Abolition of laymen, e.g., J.P.s, and
dissolution of the Board of Control, did not mean there were no safe-
guards to wrongful detention. Under the new Act there were four
main elements providing such safeguards: (1) Safeguards in the admis-
sion procedures themselves. (2) Time limits of powers of detention.
(3) Power of discharge by relatives. (4) Appeals to Mental Health Review
Tribunals, one to be appointed for each of the fifteen hospital regions.
Carstairs (1964) summarized the changes brought about by the Act as
(1) informal treatment for the great majority of psychiatric patients,