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Registered Medical Practitioner (RMP) We generally use the term Registered Medical Practitioner in this text, in preference to the more common ‘doctor’, in order to avoid confusion with other professionals who may be entitled to use the latter title. Registered Medical Practitioners carrying out duties under the MHA need a licence to practise from the General Medical Council. The only exception is when they are acting solely as Medical Members of the Mental Health Tribunal, for whom registration alone is sufficient. Depending on the task, the MHA may require any Registered Medical Practitioner or a section-12-approved Registered Medical Practitioner or the Registered Medical Practitioner in charge of the case.
In England, section 12 (strictly speaking, section 12(2)) and Approved Clinician approval are granted by section 12 and Approved Clinician panels on behalf of the Secretary of State. The qualifying requirements, which we summarise here, are set out in the Secretary of State for Health’s instructions.1 Please refer to that document for the complete list.
This isn’t an easy topic. Common law, the Mental Capacity Act, the Mental Health Act, judicial interpretation of both, the European Convention on Human Rights and judgments of the European Court of Human Rights are all relevant. Is the treatment for mental disorder, physical disorder or both? If it is for physical illness, is the illness related in some way to the patient’s mental disorder? Is the patient detained under the MHA and, if so, is it a section to which the consent to treatment provisions of the Act apply? Is the patient subject to a Community Treatment Order (CTO), in hospital or in the community, on section 17 leave or conditional discharge? What form of treatment are you considering? How old is your patient, are they competent and/or do they retain decision-making capacity? All of these questions need to be answered in order to decide whether or not the treatment can be given. It is important to remember that, if possible, the consent of the patient should always be sought, even if it isn’t required.
The law, like medicine, is full of ‘ifs’ and ‘buts’, with ‘not yet determined’ in place of the medical ‘not yet known’. In that it is ‘man-made’ it is simpler than medicine, but it has the added complication that it does not remain static, being amended by Parliament and the courts as the attitudes of society change. Although some questions have a clear answer, a ‘right’ or ‘wrong’ or ‘lawful’ or ‘unlawful’, most do not. Rarely, this is because there is no law. More commonly, it is because the law could be interpreted in several ways and, as yet, there hasn’t been a relevant court case or, as will be seen, there have been many cases with different judges interpreting the law in different ways.
In a wider legal milieu, it is typical for laws, including mental health legislation, to be reviewed and amended periodically as society progresses and services evolve. Prior to the June 2017 election, in an interview, Prime Minister Theresa May pledged to ‘rip up the 1983 Act and introduce in its place a new law which finally confronts the discrimination and unnecessary detention that takes place too often’. She argued that the key reason for the increase in detentions is the ‘discriminatory use of a law passed more than three decades ago’. Review of mental health law was then included in the government’s legislative agenda in the Queen’s speech of 21 June 2017.
Everyone deprived of their liberty must have a right of appeal. Patients detained under the MHA have two rights of appeal. They may appeal against their detention or CTO to the Hospital Managers (usually a group of people appointed for the purpose of hearing appeals) and to the First-Tier Tribunal of the Health, Education and Social Care chamber, known as the FTT, the Mental Health Tribunal or just the Tribunal. All appeals panels consist of three people.
Understanding European institutions isn’t easy or, thankfully, necessary here. Our concern is with the European Convention on Human Rights and Fundamental Freedoms. This was adopted by the Council of Europe (a group of 42 states) in 1951. The United Kingdom was one of the first signatories to the Convention. Although prior to 2000, when the Human Rights Act 1998 (HRA) came into force, ‘public authorities’ (the term used to describe ‘the State’) and private institutions providing public functions were supposedly obliged to comply with the European Convention of Human Rights, it was difficult in practice for an aggrieved person to obtain a judgment because they needed to exhaust all domestic legal remedies before they could appeal to the European Convention of Human Rights. The Human Rights Act changed this. Parliament is required to ensure that its laws are compliant with the European Convention of Human Rights, and courts and other public authorities are required to interpret Acts in line with the Convention as far as possible. European Court of Human Rights judgments are applicable in UK courts (although not binding).