---

Mental Health Bill [Lords]

I am going to try to simplify things. The Mental Health Act 1983 laid down two conditions for detention: severe mental illness, and being a danger to oneself or others. Severe mental illness was defined as"““illness severe enough to require hospital treatment””." That is a slightly unsatisfactory definition because it is culturally relative and in 1983 there were not the same alternatives to hospital treatment as there are now. None the less, the common law understanding and interpretation for more than 34 years has been that sectioning or detention requires a person to be severely mentally ill—no one can seriously doubt that. The second requirement is that one is a risk to oneself—the obvious example is suicide—or a risk to others, up to and including homicide. There is no doubt about that either. The new clause—following the amendment in the Lords—adds a further criterion: impaired judgment. Initially, that sounds attractive, on the sound legal principle that people without impaired judgment ought not to be detained against their will unless they have done some provable wrong. However, that leaves us with the crunch question: what happens to people who are severely mentally ill, suicidal or homicidal, but who have unimpaired judgment? Several answers have been given. One answer given repeatedly is that there are no such people; it is a null class. Mentally ill people who are suicidal or homicidal necessarily have impaired judgment. That is a good answer, but it renders the new clause entirely redundant, because anyone who meets the original criteria for detention—someone who has a severe mental illness and suicidal or homicidal tendencies—meets the impaired judgment test as well. The new clause would therefore be logically superfluous, if cosmetically attractive.