'The necessity must be convincingly shown to exist': standards for compulsory treatment for mental disorder under the Mental Health Act 1983

Bartlett, Peter

Abstract

Current English law has few controls on the involuntary treatment of persons detained under the Mental Health Act 1983. In 2001, R (Wilkinson)v. Broadmoor Special Hospital Authority provided some hope that, in conjunction with the Human Rights Act and the European Convention on Human Rights (ECHR), meaningful substantive and procedural standards for compulsory psychiatric treatment might be
developed, but that hope has not been fulfilled. Using Wilkinson and the ECHR jurisprudence as a starting point, this article considers when, if at all, compulsory psychiatric treatment might be justified. In particular, it considers the difference between the ‘appropriateness’
standard of the English legislation and the ECHR requirement of ‘therapeutic necessity’, the requirements for appropriate procedure and appropriate legislative clarity, how the courts should deal with disagreements
among treating physicians, and the relevance of the capacity and best interests of the detained person.

Citation

Bartlett, P. (2011). 'The necessity must be convincingly shown to exist': standards for compulsory treatment for mental disorder under the Mental Health Act 1983. Medical Law Review, 19(4), https://doi.org/10.1093/medlaw/fwr025

• Journal Article Type: Article
• Publication Date: Jan 1, 2011
• Deposit Date: Nov 25, 2011
• Publicly Available Date: Nov 25, 2011
• Journal: Medical Law Review
• Print ISSN: 0967-0742
• Electronic ISSN: 1464-3790
• Publisher: Oxford University Press
• Peer Reviewed: Peer Reviewed
• Volume: 19
• Issue: 4
• DOI: https://doi.org/10.1093/medlaw/fwr025
• Keywords: compulsory psychiatric treatment ; compulsion ; Herczegfalvy; Wilkinson ; Mental Health Act 1983 ; best interests ; mental capacity
• Public URL: https://nottingham-repository.worktribe.com/output/1010475
• Publisher URL: http://medlaw.oxfordjournals.org/content/19/4/514