Warrants

In my opinion, a further change to the law is required. The deprivation of rights and liberties represented by the use of mental health legislation is serious. Although I believe it is reasonable - even necessary - that we care for someone if they are temporarily or permanently unable to exercise rational autonomy, it is important that we have proper judicial oversight over this process. Other intrusions into peoples' rights and liberties are governed by the strict application of warrants, only under exceptional circumstances do we tolerate a 'permissive' approach, merely allowing authorities to override our rights. We (at least in the UK) require a judicial warrant to arrest someone (an 'arrest warrant') or to search someone's house (a 'search warrant'). These aren't particularly difficult to obtain; a police officer makes an application to a duty magistrate, presents evidence that the necessary criteria are met, and the process is sanctioned. Importantly, sanctioned under legal authority. I believe that all applications of mental health legislation - in England and Wales, the Mental Health Act - should be sanctioned by warrant. That would, necessarily, put a hurdle in the process of 'sectioning'. That is right and proper. It is simply appropriate that such a serious legal, as well as clinical, decision should be legally sanctioned. And any pressure to reduce the level of compulsion in mental healthcare should be welcomed. Most importantly, it is right that evidence that someone meets the criteria for the legislation to be applied - including that they are not able to exercise their own decision, making autonomy at that point - is presented to a neutral, judicial person before action is taken.

In my opinion, then, we should only use the savage powers of mental health legislation when a magistrate or judge has issued a warrant after first being persuaded both that detention is necessary for the person's health or safety or that of others, and also that the person is unable at that point to make an informed decision regarding their care. This would certainly not mean that a person in great and acute distress (and, perhaps, causing a public disturbance) would be left without help while complex bureaucratic processes are pursued to obtain a warrant. It is clearly important to balance a desire for judicial oversight with a need for urgent action to assist people in distress. As with arrest or search warrants in the criminal justice system, however, it is perfectly possible to legislate for a reasonable balance in these issues. The various sections of the UK's Mental Health Act already include provisions for immediate response to acute need, with subsequent actions required within 72 hours. What would differ if there were proper judicial review is that, within 72 hours, a warrant would be required from the courts. This is different from the present system that merely requires compliance with the provisions of the legislation without specific judicial oversight.

 
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