The Mental Health Act 1983 and remuneration of doctors


In 1997 a Court of Appeal judgment (L. V Bournwood Community and Mental Health NHS Trust) determined that a person without the legal capacity to consent to admission to Hospital for the purpose of assessment or treatment of their mental disorder must be admitted under the Mental Health Act 1983. Without going into too much legal detail that ruling dictated that many patients previously admitted informally to mental hospital and mental nursing homes, say, suffering from a dementing process or severe mental impairment, would thenceforth have been required to be sectioned under the Act. 

Up to that decision a degree of mental incapacity rendering the person incapable of informed consent or refusal in such a clinical situation had resulted in informal admission thus avoiding the whole legal panoply of sectioning under the Act. Following Bournwood there was even more consumption of clinical resources (consultant psychiatrists, family doctors and their teams` clinical time) by legal processes such as those involving compulsory patient admission, Mental Health Act Commission required second opinions on treatment and Mental Health Review Tribunals (MHRTs). The cascade was aborted when the decision was reversed by the House of Lords. This is now regarded as but a temporary respite: that in any new mental health act a Bournwood -type provision will be included. Even before Bournwood the demand had been a burgeoning one.

No other clinical medical specialty in the NHS has so much of its scarce clinical time consumed by essentially non-medical, legally generated activity for which there is no separate remuneration structure. This has been an astonishing oversight by bodies such as the BMA and HCSA as the Society of Clinical Psychiatrists (SCP) has reminded them in its publication The Impact of Government-driven changes on clinical practice. Psychiatrists have, understandably perhaps, looked to their royal college for redress in such matters. But terms and conditions of service are outside such body's remit.

Psychiatry, like all other medical disciplines in the NHS, has had difficulties associated with Griffiths' 1983 introduction of aggressive business management. But it has had to come to terms also with a new Mental Health Act that same year, which represented more constraint and further time demand on clinical practice compared with the 1959 Act: increased numbers of MHRTs, requests for longer medical reports: for the attendance in person of the consultant as responsible medical officer (RMO) and expectation that when he/she attends they should remain throughout the tribunal. (Many RMOs seem unaware that the Act requires only that they should furnish a report for the tribunal, though the president [a lawyer] of a tribunal hearing has power to "subpoena any witness to appear before it"). Since 2 October 2000 and the incorporation of the European Convention on Human Right into British law still more burden (and inexorably more time) is imposed on MHRTs to attempt make them 'judicial review proof'. Requests to attend Managers' Hearings as well (a pointless duplication of much of tribunal work), dealing increasingly with an adversarial legal representative acting for the detained patient, and having to requests second opinion agreement for treatment from the Mental Health Act Commission for both medication and ECT, all add up to a substantial increased time-demand. Together, these factors constitute an overwhelming case for an agreed scale of fees for all medico legal work, for all doctors, arising from the current (and any future) Act's implementation.

The number of tribunals has greatly increased since 1983. The annual figure for hearings held increased from 2516 in 1985 to 9057 in 1998 (the most recent statistics available), a rise of some 280%. This does not include time spent on preparation for tribunals planned but which are cancelled prior to the actual hearing.

At least when doctors are paid an appropriate scale of fees for professional time spent on these activities, it would confer some frustration reduction - the labourer is worthy of his hire - and perhaps more importantly, in these penny-pinching NHS days, thereby diminish what has been ever increasing consumption and assumption of their precious clinical time by legal rather than medical work. Being unpaid does not necessarily equate with one`s sweat being unrespected. But it can certainly mean its being too easily taken for granted.

Dermot Ward