The Mental Health Act 1983 (Remedial) Order 2001

Explanatory Note

(This note is not part of the Order)

This Order makes changes to sections 72(1) and 73(1) of the Mental Health Act 1983 (“the 1983 Act”) to remove the incompatability of those provisions with a Convention right.

In the case of The Queen on the application of H v Mental Health Review Tribunal North & East London Region (Secretary of State for Health Intervening) (4 April 2001) the Court made a declaration under section 4 of the Human Rights Act 1998 that—

• “Sections 72(1) and 73(1) of the Mental Health Act 1983 are incompatible with Articles 5(1) and 5(4) of the European Convention of Human Rights in that, for the Mental Health Review Tribunal to be obliged to order a patient’s discharge, the burden is placed upon the patient to prove that the criteria justifying his detention in hospital for treatment no longer exist; and that Articles 5(1) and 5(4) require the Tribunal to be positively satisfied that all the criteria justifying the patient’s detention in hospital for treatment continue to exist before refusing a patient’s discharge.”.

In order to remove the incompatibility, the Order amends sections 72(1) and 73(1) of the 1983 Act to provide that a Mental Health Review Tribunal shall direct the discharge of a patient if they are not satisfied that the criteria justifying his detention in hospital for treatment continue to exist. The Order also makes a consequential amendment to subsection (2) of section 73 of the 1983 Act.

The Order will come into force on 26th November 2001 pursuant to the “urgent” procedure prescribed in paragraph 4 of Schedule 2 to the Human Rights Act 1998. The Order will cease to have effect if, at the end of the period of 120 days beginning with the day on which the Order was made, a resolution has not been passed by each House of Parliament approving the Order.