Patients with learning disabilities who lack capacity detained under the Mental Health Act in the UK: a case study

SAWHNEY Indermeet, ZIA Asif, GATES Bob
Journal article citation:
British Journal of Learning Disabilities, 45(2), 2017, pp.138-141.

Background: In the UK, the Mental Health Tribunal is a long-established safeguard for patients detained under the Mental Health Act. This gives such patients an effective appeal mechanism to ensure legal protection of their liberty. This act contains sections that allow for civil detention in the case of mental disorder. The right to apply to the tribunal against such detention is underpinned by the right to liberty under Article 5 of the European Convention of Human Rights (ECHR). Some patients with learning disabilities may lack capacity and the ability to challenge their detention. Method: This article presents a case study of a woman with Down's syndrome and severe learning disabilities. Whilst this woman was detained under the Mental Health Act, she could have applied for a review of her detention to the Mental Health Tribunal within 14 days. She did not do so because she lacked capacity to instruct solicitors. Subsequently, as a result of appeal, the case proceeded through English and European judicial review. Results: The European Court of Human Rights, in the case of MH v UK (2013), has ruled that the appeals procedure for patients without capacity detained under Section 2 of the Mental Health Act is not compatible with Article 5(4) of the European Convention of Human Rights. The European Court has ruled that special procedural safeguards are required to enable this cohort of patients to exercise their rights guaranteed by Article 5(4). Conclusions: Responsible clinicians [treating consultant psychiatrists] need to ensure that all patients detained under section 2 of the Mental Health Act have an assessment of their capacity to apply to the tribunal. There need to be systems in place to alert hospital managers when a patient lacks capacity to apply for a tribunal. Hospital managers should request the Secretary of State to apply for a tribunal in these instances. Knowledge of this ruling is relevant to informing the practice of other interdisciplinary healthcare professionals working with such patients. (Publisher abstract)

Subject terms:
mental capacity, case studies, mental health law, compulsory detention, learning disabilities, European Convention on Human Rights;
Content type:
practice example
Wales, England
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