ANALYSIS:IT IS highly unusual for the Government to anticipate a ruling of the higher courts by amending legislation before that ruling has been handed down. Yet that is what happened on Thursday, when the Government rushed through the Mental Health (Amendment) Bill to close a loophole that, at that point, did not yet exist.
However, the flaw in the 2001 Mental Health Act was duly identified by Mr Justice McMahon in the judgment he delivered yesterday, when he ruled that the form used in renewing the detention of a person with a mental illness did not allow for periods shorter than 12 months, thereby infringing the rights of the detained person.
However, he did not anticipate any need for amending legislation himself, stating in conclusion: "One must not think that the skies will fall as a result of this
decision . . . all it means is that he/she [the consultant psychiatrist] must indicate the specific period in the order he/she makes under those provisions. The procedures which the Mental Health Commission adopt and the forms which they use will, of course, have to be revisited to comply with this interpretation, but this is a simple administrative matter."
However, the Government clearly felt that amending legislation was needed to ensure that such forms did not face future challenges.
This case arose from a challenge to her detention by a young woman who, according to her psychiatrist, would fare best in supported accommodation, where she would be under supervision that would ensure she took her medication. However, the psychiatrist was unable to find suitable accommodation for her.
Consequently, she extended the involuntary admission order for a period "not exceeding 12 months", as stated on the form. The only reason for the woman's detention in a psychiatric hospital for a prolonged period, without any prospect of a review for 12 months, was the lack of suitable supported accommodation.
Lawyers for the applicant argued that the Mental Health Tribunal's jurisdiction failed to provide a sufficient independent review mechanism, and contradicted the European Convention on Human Rights; in the alternative, they argued that the relevant section should be read in a manner compatible with the convention by varying the psychiatrist's order.
In the course of the hearing, counsel for the applicant successfully sought to amend her pleadings to seek a declaration that the order was invalid because of its failure to specify a definite duration for the detention.
This, and Mr Justice McMahon's questions during the trial, were noted by lawyers interested in the operation of the Mental Health Act. It is likely that the Government was alerted to the likelihood of a question mark being placed over renewal orders, potentially affecting over 200 people involuntarily detained under the Act.
In his judgment Mr Justice McMahon did indeed state that a renewal order made under Section 15 of the Act that merely provides for a period "not exceeding 12 months", was not permitted under the legislation and was void for lack of certainty.
Mr Justice McMahon stressed the compassion and professionalism of the doctors involved in this case, and placed a stay on his order for the applicant's release to enable the authorities to comply with his ruling and come back with proposals.
But he made it clear that, however well-intentioned, the detention of a person with a psychiatric illness cannot be allowed if it infringes his or her rights.