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

Bartlett, Peter

Authors

PETER BARTLETT peter.bartlett@nottingham.ac.uk
Nottingham Healthcare Nhs Trust Professor of Mental Health Law



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), doi: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 0967-0742
Publisher Oxford University Press (OUP)
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 http://eprints.nottingham.ac.uk/id/eprint/1553
Publisher URL http://medlaw.oxfordjournals.org/content/19/4/514
Copyright Statement Copyright information regarding this work can be found at the following address: http://eprints.nottingham.ac.uk/end_user_agreement.pdf

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Copyright Statement
Copyright information regarding this work can be found at the following address: http://eprints.nottingham.ac.uk/end_user_agreement.pdf





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