FENNELL SETS MENTAL HEALTH LAW STRAIGHT

Updated by Phillip Taylor MBE

Professor Phil Fennell has produced just the right book for the courses I run currently covering those involved at any level in mental health issues. It is a difficult area of law and one which needs to be treated with a high degree of caution and sensitivity because of the powers available which Fennell demonstrates and explains admirably with a sure touch throughout.

STRUCTURE OF THIS BOOK

Fennell’s aim is to explain the new framework of mental health legislation in a way which is accessible not only to professionals but also to service users, carers, and interested lay readers. He does just this in the best way possible with the tools he has at his disposal.

All readers should start this book by looking at the points concerning implementation of the current MHA 2007 in the Preface, and then review the 12 chapters. There are no plans to produce a consolidation Act merging the 1983 and 2007 Acts although Fennell produces one in Appendix 1. The amended provisions of the DVCVA 2004 are in Appendix 2. The provisions for Bournewood authorizations for deprivation of liberty under the new Schedules A1 and 1A to the MCA 2005 are in Appendix 3. These main changes should be introduced by October 2008, with Bournewood authorizations in April 2009 and other implementations by April 2010.

What we now have being introduced in stages is a comprehensive code of mental health legislation from the two MHAs (now consolidated) and the MCA creating the powers to deprive people of their liberty and treatment without consent based on distinct eligibility criteria for compulsion, and with separate Codes of Practice.

In effect, frankly, it’s all a confusing mess but with some redeeming features which Professor Fennell brings out in the best way he can with this fundamental statement of what Mental Health law now is seen to be as far as we understand it.

THE CHAPTERS

Chapter 1 looks at the legislative background and reviews policy contexts including ‘The Bournewood Gap’ issue. Each chapter has a useful conclusion at the end of it which gives perspective (where it can) on its contents. Chapter 2 gives an overview of the Mental Health Act 2007. We then move into specific definitions of ‘mental disorder’ and the availability of appropriate treatment in chapter 3, and statutory powers and responsibilities of staff in chapter 4.

Chapter 5 covers relatives, independent mental health advocates and hospital managers, and chapter 6 reviews detention powers under the MHA and MCA. The issue of the detention of mentally disordered offenders is covered in chapter 7, and chapter 8 reviews compulsory powers in the community with a consideration of the legal and policy framework of community care.

Chapter 9 sets out the discharge and review of the lawfulness of detention by tribunals and courts which are of direct relevance to lawyers. Chapter 10 explains opinion procedures on the consent to treatment for mental disorder. Chapter 11 deals specifically with children, and the final chapter looks at criminal offences and the transfer of patients between jurisdictions. There is a small index at the back which could be expanded although I thought the case law references were excellent and we could have more internet references.

Prof Fennell does his best and gets full marks for explaining the mess which our legislators have created. He writes that the MHA “marks the intersection between the health system and the criminal justice system”, and points out that there is potential for broadening the scope of compulsory powers which sits uneasily with current concepts of human rights.

Fennell has set mental health legislation as straight as he can for Jordan Publishing’s New Law Series - I welcome it as the best (and only) current statement we have in this delicate area of community responsibilities for those with mental illness at the present time: it is clearly the most authoritative work we will have for some time to come on the new law.