Foster, Simon

English

Northumbria Journals

96Journal of Mental Health Law May 2005Book review Mental Health Act Manual by Richard Jones (9th edition)Published by Sweet and Maxwell (2004) £59.00A new edition of the Mental Health Act Manual is always an event. Richard Jones has long beentreated as the authority in the field of mental health law; indeed, some mental health professionalsneed convincing that Jones’s commentary does not embody the law (the “Jones says”phenomenon, noted before in these pages1). Fortunately Jones’s views are always well-argued: hisinterpretation is usually based upon both a thorough knowledge of what the settled law says and,where it is not settled, fierce opinions on what it ought to be. (I return to Jones’s opinions later inthis review.)So what is new in the 9th edition? The mixture is much as before: the focus is on the text of the1983 Act, with a detailed commentary on how it has been interpreted in the decided cases, the 1983Tribunal Rules and commentary, the Human Rights Act 1998 and commentary, and the Code ofPractice, which carries no commentary as such but occasional ‘general notes’ (which frequentlydissent from the guidance given). As far as I can see, every important case since the last edition2 hasbeen included, and a large number that I have not encountered before. I am particularly gratefulfor the excellent updating of the commentary on Part III sentencing, where the caselaw is harderto track down. What is more, having for once read through the whole Manual (albeit at a gallop) Iam left awestruck at the clarity of the materials: how Jones manages each time to reduce suchcomplexity of detail to a book which can be so readily understood, without complete mentalcollapse, is nothing less than astonishing.I welcome the four annexes which deal with specific contentious issues – medical treatment undercommon law, medical treatment of children, further powers to restrain and/or detain patients andthe legal protection of mentally incapable adults – which have helpfully been extracted from theirformer positions in the general text. This approach could perhaps be extended to other key partsof the Manual where the ‘general notes’ have got out of hand: section 3, for example, occupies 3/4page of text, while the commentary runs to 13 1/2 pages. 1 See the review of the 7th edition of the Manual byAnthony Harbour and Robert Brown at pp 81 - 84JMHL Feb. 20022 8th edition, published by Sweet and Maxwell (2003)Book review97It is a pity that this edition went to press before the European Court of Human Rights deliveredits long-delayed judgment in the ‘Bournewood’ case (HL v United Kingdom, October 20043). Jones’ssummary of the position at common law and its interaction with the European Convention is infact largely borne out by how the European Court subsequently viewed the case. Healthprofessionals struggling to implement the recent Department of Health guidance4 that peopleshould not be admitted informally ‘in circumstances amounting to a deprivation of liberty’ would,I am sure, now welcome an authoritative review of the vexed question of when, exactly, someoneis ‘detained’, given the conflicting caselaw5. Is it possible to reconcile these authorities with therecent ‘discharge to hospital’ cases such as R (Secretary of State for the Home Department) v MentalHealth Review Tribunal6, R (G) v MHRT & Secretary of State for the Home Department7, R (Secretaryof State for the Home department) v MHRT8? I think we should be told – and I can imagine no-onebetter than Jones at the telling. So the Manual is as wonderful and definitive as ever. And yet, I am left with two nagging questions:what is the purpose of the Manual, and who is it written for? With regard to the first question, theobvious answer is that it is primarily a working handbook for professionals in the field. But not allthe material is equally accessible. Who, for example, is the target readership of the lengthy andever-expanding section on the Human Rights Act? It makes fascinating reading for academics andpolicy-makers, and is doubtless invaluable for counsel preparing an appeal, but is unlikely to be ofmuch use to busy professionals seeking to uphold Convention rights in their everyday practice. The Manual is long and getting longer (and of course more expensive); in my view the space wouldbe better used if Jones could, for example, reinstate the key pieces of Government guidance, whichat one time were included in full but which remain banished to summary notes in the generalcommentary. It is hard for health professionals, let alone lawyers, to keep up with what guidance iscurrently in force. If it is apparently possible to include in full the 1995 guidance on superviseddischarge, which remains little-used, could we please have the text – or extracts from it – of the keydocuments on mentally disordered offenders, unfitness to plead, confidentiality, etc.? Jones wouldbe doing us all a great service by restoring this section of the Manual. I am more troubled by the second question. Veteran Jones-watchers have long been aware that theManual tends to be written largely with mental health professionals in mind, and this is clearlyreflected in the passages in which Jones sets out his personal views. There is nothing wrong withhim giving his opinions – he knows the law as thoroughly as anyone and has great clarity ofthought (though it would be helpful if he could differentiate more clearly between passagessummarising the law and his occasional pieces of kite-flying). The problem is, rather, with the areasin which he chooses to express a dissenting view: these are almost always where it appears thatcurrent practice places the statutory authorities at a disadvantage. In the matter of charging fors.117 services, for example, Jones continues to grumble about unfairness years after the matter hasbeen decided definitively by the House of Lords9 (see page 430 of this edition). 3 Application no. 45508/994 10th December 20045 Compare the majority decision of the House of Lordsin R v Bournewood Community and Mental HealthNHS Trust ex parte L [1999] 1 AC 458, followingAshingdane v UK (1979) 2 EHRR 387, with HL vUK and earlier cases such as Murray v Ministry ofDefence [1988] 2 All ER 521.  6 [2002] EWCA Civ 1868 7 [2004] EWHC 2193 (Admin)8 [2004] EWHC 2194 (Admin)98Journal of Mental Health Law May 2005This does not mean that Jones is usually wrong: on the contrary, his concerns are frequentlyvindicated by the courts. For example, one of his familiar themes concerns the duty to consult thenearest relative ‘unless it appears (to the ASW) that in the circumstances such consultation is notreasonably practicable...’ (s.11(4) MHA). Is the ASW permitted not to consult the nearest relativeif he or she is believed to have been harmful to the patient, or where the patient has severed alllinks with him or her? The Code of Practice states at paragraph 2.16: “Practicability refers to theavailability of the nearest relative and not to the appropriateness of informing or consulting theperson concerned.” Jones takes a characteristically robust line over this guidance. It is “bothincorrect and inconsistent with the requirements of the European Convention of Human Rights”(page 81, bottom). “Approved social workers should therefore be advised not to interpret thisprovision in the manner advocated by the Code of Practice and the Mental Health ActCommission” (page 83, top). As we now know, the courts have finally confirmed the correctnessof this approach: see R (E) v Bristol City Council10.My concern is, rather, that there are a number of examples in the Manual of decisions whichwould appear to undermine the patient’s rights, upon which Jones makes no comment. Take forexample the practice of displacing a nearest relative by interim order, without notice, following Rv Central London County Court ex parte London11: there is apparently a growing practice of displacingwithout notice and without providing a return date, putting the nearest relative to the effort ofhaving to make an application in order to assert his or her statutory rights. I once raised concernsabout this practice with the county court concerned but was told that it was perfectly lawful underthe County Courts Act 1984. The court rather missed the point: surely there is a problem ofprinciple here? If so, Jones says nothing about it. Or take the extension of a section 2 detentionpending displacement under s.29(4) MHA. At the time of this edition Jones had access to the firstinstance judgment in MH12 which dismissed the claim under Article 5(4), but again, although heprovides a detailed summary of Silber J’s key points, he makes no comment on them, despite themanifest unfairness which was later picked up by the Court of Appeal13. The most worrying expression of opinion occurs in the preface. Jones complains about“unnecessary” Managers’ hearings, which he says “must be confusing to patients”, and states that“NHS and independent hospitals should review their protocols to ensure that Managers’ hearingsare only convened when there is a legal requirement to do so.” He gives further advice on theconvening of Managers’ hearings in his general note to paragraph 23.9 of the Code of Practice: “AManagers’ hearing should not take place during the currency of the section if the patient has madea concurrent application to a Mental Health Review Tribunal” (page 725). Jones surely exceeds his brief here. Managers’ hearings are not of course statutory, but part oftheir general duty of care towards their patients: as paragraph 23.7 of the Code makes clear,Managers may conduct a review of detention at any time at their discretion. Those representingdetained patients are perfectly entitled to ask for a hearing in order to test the case for detention,even if a tribunal hearing is imminent; the Managers can always refuse such a request, havingcarried out a paper review of the position (see paragraph 23.9). Jones is of course entitled to be9 R v Manchester City Council ex p. Stennett [2002]UKHL 3410 [2005] EWHC 74 (Admin)11 [1999] 3 All ER 99112 R (on the application of MH) v Sec. of State forHealth and MHRT [2004] EWHC 56 (Admin)13 R (on the application of MH) v Sec. of State forHealth [2004] EWCA Civ 1690Book review99concerned about the potential waste of clinician time; but the Mental Health Act Manual is surelynot the right place for him to give advice on how patients’ rights may be restricted?I do not want to make too much of these concerns. The Manual remains an invaluable resourcefor patients and their lawyers. But I – and no doubt many other people – would be saddened ifJones continued down the track about which I have expressed concerns above. The danger wouldbe that the Manual would then become in effect an advice handbook for the detaining authority,and not – as now – the definitive text for everyone in the field.Simon FosterSolicitor; Independent Legal Consultant; formerly Principal Solicitor, Mind (London)

Mental Health Act Manual by Richard Jones (9th edition)

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Mental Health Act Manual by Richard Jones (9th edition)

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