TREATMENT WITHOUT CONSENT SOCIAL ETHICS AND POLICY SERIES Edited by Anthony Dyson and John Harris Centre for Social Ethics and Policy, University of Manchester EXPERIMENTS ON EMBRYOS Edited by Anthony Dyson and John Harris THE LIMITS OF MEDICAL PATERNALISM Heta Häyry PROTECTING THE VULNERABLE Autonomy and Consent in Health Care Edited by Margaret Brazier and Mary Lobjoit MEDICAL CONFIDENTIALITY AND LEGAL PRIVILEGE Jean V.McHale ETHICS AND BIOTECHNOLOGY Edited by Anthony Dyson and John Harris LIBERAL UTILITARIANISM AND APPLIED ETHICS Matti Häyry CONTEMPLATING SUICIDE The Language and Ethics of Self Harm Gavin J.Fairbairn TREATMENT WITHOUT CONSENT Law, psychiatry and the treatment of mentally disordered people since 1845 Phil Fennell London and New York First published 1996 by Routledge 11 New Fetter Lane, London EC4P 4EE Simultaneously published in the USA and Canada by Routledge 29 West 35th Street, New York, NY 10001 Routledge is an imprint of the Taylor & Francis Group This edition published in the Taylor & Francis e-Library, 2004. © 1996 Phil Fennell All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloguing in Publication Data A catalogue record for this book has been requested ISBN 0-203-41789-5 Master e-book ISBN ISBN 0-203-72613-8 (Adobe eReader Format) ISBN 0-415-07787-7 (Print Edition) To Jenny and James, and to the memory of my parents, Harold and Molly Fennell This page intentionally left blank. CONTENTS A cknowledgements i x I ntroduction 1 1 1 845–1853: THE BIRTH OF THE LUNACY COMMISSION 14 2 1 853–1880: THE TRIUMPH OF NON-RESTRAINT? 2 4 3 C HEMICAL RESTRAINT 3 6 4 1 880–1913: THE RETURN OF RESTRAINT 4 7 5 S URGICAL TREATMENT AND CONSENT 6 4 6 T HE BOARD OF CONTROL AND STERILISATION OF ‘THE UNFIT’ 75 7 T HE BOARD OF CONTROL AND THE MENTAL TREATMENT ACT 1930 104 8 T HE BOARD OF CONTROL AND TREATMENT FOR MENTAL DISORDER, 1913–1930 117 9 T HE AGE OF EXPERIMENTATION: THE BOARD OF CONTROL AND TREATMENT FOR MENTAL DISORDER, 1930–1959 126 10 T HE AGE OF PSYCHOPHARMACOLOGY 14 8 11 T HE MENTAL HEALTH ACT COMMISSION AND THE MENTAL HEALTH ACT 1983 167 viii TREATMENT WITHOUT CONSENT 12 T REATMENT WITHOUT CONSENT UNDER THE 1983 ACT 186 13 E MERGENCY SEDATION, SECLUSION AND RESTRAINT IN CONTEMPORARY PSYCHIATRY 213 14 T REATMENT OF INCAPABLE PATIENTS WITHOUT CONSENT UNDER COMMON LAW 228 15 C ODIFYING CLINICAL AUTHORITY 24 4 16 I NFORMAL COMPULSION: TREATING CHILDREN WITHOUT CONSENT 264 C onclusion 27 2 T able of statutes 28 9 T able of statutory instruments 29 1 T able of cases 29 2 N otes 29 6 B ibliography 32 9 I ndex 34 4 ACKNOWLEDGEMENTS My largest debts are to two people: first, my colleague and good friend, Dr Clive Unsworth of Cardiff Law School, who has given unstintingly of his time and unrivalled knowledge of mental health legislation to offer constructive and inspirational criticism of draft chapters; and second, Catherine Young of the School of Social and Administrative Studies at Cardiff University for her invaluable and patient advice, in helping me to devise a coding frame to enable the data for the empirical study of statutory second opinions in Chap- ters 12 and 13 to be analysed, as well as for her assistance in enter- ing and retrieving the data. Peter Alldridge, and Professors Shelia Maclean and Philip Bean have made many valuable suggestions. My thanks are due to the Nuffield Foundation, whose small grants scheme provided the necessary funding to carry out the empirical study; to William Bingley, the Chief Executive of the Mental Health Act Commission (MHAC) for arranging access to the data and for his helpful advice at various stages of the research; to Ali- son Cooney, the MHAC Administrative Manager for organising the photocopying of the relevant reports; and to Andrew Kay at the MHAC, who provided me with some of the more recent figures on the total numbers of second opinions during the biennium 1991– 1993. Three Mental Health Act Commissioners, Dr Max Harper, Professor Elaine Murphy, and Ms Elaine Rassaby were kind enough to provide extremely useful comments on earlier drafts. The research for the historical chapters of the book took me to a large number of libraries and research archives, whose staff were invariably helpful and friendly. These included the Public Record Office at Kew; the Royal Commission on Historical Manuscripts; the Radcliffe Camera; the Radcliffe Science Library; the National