Each branch of law has its
own rules relating to persons who are of unsound mind, and also
its own definition of unsoundness of mind. Each branch must
therefore be treated separately.
Contract and torts.
The Mental Health Act 1959. makes numerous
provisions in respect of people who are suffering from mental
disorder which is defined as ‘mental illness, arrested
or incomplete development of mind, psychopathic disorder, and
any other disorder or disability of mind’.
The provisions of the Act may be divided into two categories,
depending upon whether or not the patient is before a criminal
court. The question of whether a person charged with a crime
is suffering from mental disorder is relevant at various stages
of the proceedings:
During remand. A person remanded in custody
awaiting trial may, if the Secretary of State is satisfied that
he is suffering from one of a number of mental disorders as
certified by reports from two doctors, be transferred to a mental
hospital, and the trial will not proceed.
During trial. Before the opening of the case
for the defence, a defendant may be found incapable of understanding
the proceedings. If so, he is said to be ‘unfit to plead’,
and he will then be detained in a mental hospital until the
Home Secretary, being satisfied that he has fully recovered
his sanity, orders his release.
Alternatively, insanity may be pleaded as a defence, in accordance
with what have become known as the Mc’Naghten rules:
To establish a defence on the ground of insanity, it must be
clearly proved that, at the time of the committing of the act,
the party accused was labouring under such a defect of reason,
from disease of the mind, as not to know the nature and quality
of the act he was doing; or, if he did know it, that he did
not know he was doing what was wrong.
The burden of proof of insanity rests upon the defence, and
if it succeeds, a verdict of ‘not guilty by reason of
insanity’ will be brought. The defendant will then be
detained in a mental hospital under his discharge is ordered
by the Secretary of State.
There is a special defence of ‘diminished responsibility’
which is available only on a charge of murder. If a person so
charged ‘was suffering from such an abnormality of mind
(whether arising from a condition of arrested or retarded development
of mind or any inherent causes or induced by disease or injury)
as substantially impaired his mental responsibility for his
acts and omissions in doing or being a party to the killing’,
he is guilty of manslaughter and not murder.
The burden of proving diminished responsibility rests upon the
defendant. A person found guilty of manslaughter by reason of
diminished responsibility is not treated as if he were of unsound
mind; he will be sentenced to imprisonment rather than to detention
in a mental hospital.
After trial. A person found unfit to plead
or not guilty by reason of insanity is automatically sent to
a mental hospital, as already mentioned. In addition, a person
who is undergoing a sentence of imprisonment may be transferred
to a mental hospital on the order of the Secretary of State
if, in the opinion of two doctors, he is suffering from certain
mental disorders which warrant hospital detention. Whatever
may have been the length of his original sentence of imprisonment,
he will not be released from the mental hospital until the Secretary
of State is satisfied that he is no danger to the public, and
is fit for release.
Although a person suffering from mental
disease is not charged with any crime, it is possible that
he will be compulsorily detained in a mental hospital.
A person
may enter a mental hospital voluntarily, and if he does he
is at liberty to leave at any time.
Legislation encourages
voluntary and informal treatment, both inside and outside
hospital, and 90% of mental patients submit to voluntary treatment.
There remain, however, some cases where, in the public interest,
a patient must be sent to and detained in a mental hospital.
In case of urgent necessity, a relative or a mental welfare
officer may apply for the compulsory admission of a patient
to a mental hospital. The application must be supported by
the recommendation of a doctor, and the patient must be discharged
within three days unless a second doctor recommends further
observation, in which case the period can be extended to twenty-eight
days.
Where there is no urgent necessity a more complex procedure
is followed. The nearest relative or a mental welfare officer
may apply to the mental hospital for the admission of the
patient for observation or treatment.
The grounds of admission for observation must be that the
patient is suffering from mental disorder warranting detention
for observation. If treatment is sought, the application must
show that the patient is suffering from mental illness or
severe sub-normality, or is under the age of twenty-one and
is suffering from psychopathic disorder or sub-normality.
Detention for either observation or treatment requires the
applicant to state that it ‘is necessary in the interests
of the patient’s health or safety, or for the protection
of other persons’. The application must be supported
by the written recommendation of two doctors.
Where a patient has been admitted for observation, he must
normally be discharged after twenty-eight days. Detention
for treatment is limited in the first instance to one year,
but towards the end of the year the patient is examined and,
if necessary authority for his detention may be renewed.
While a person is being detained for treatment, he or his
nearest relative may make an application for discharge to
a Mental Health Review Tribunal. Such a tribunal consists
of a doctor, a lay person, and a lawyer who presides over
the proceedings. There is a tribunal for each Regional Health
Board in England and Wales.
Compulsory guardianship. There are cases where mental patients
do not need in-patient hospital treatment but do need care
and supervision, and the Mental Health Act provides for this
through the medium of compulsory guardianship. A guardianship
application may be made to a local health authority in respect
of a patient of any age who is suffering from mental illness
or severe abnormality, or in respect of a patient under twenty-one
years of age who is suffering from psychopathic disorder or
subnormality. The application names either the local health
authority or an individual as guardian, and if the application
is successful the guardian has similar powers to those which
a father has over a child under the age of fourteen years.
Management of mental patients’ affairs. Within the Chancery
Division of the High
Court there is a Court of Protection ‘for the protection
and management of the property of persons under disability’.
The court has jurisdiction over any patient who in the opinion
of the judge is ‘incapable by reason of mental disorder
of managing and administering his duties and powers as the
judge thinks fit. The receiver is usually a near relative
of the mental patient.
Civil actions. As in the case of minors,
persons suffering from disability within the meaning of the
Mental Health Act cannot directly become involved in civil
litigation. Such a person can, however, sue by his ‘next
friend’, and may defend an action through his ‘guardian
ad litem’.
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