Jaydip Sarkar c) Safeguards to quasi-legal model: Safeguards ought to be built into the act such that legitimate concerns within the judiciary (and possibly other sections of society) about the potential for misuse of powers of detention by psychiatrists, can be laid to rest by the availability of a mechanism which would allow later independent scrutiny. Such scrutiny can be the role of a tribunal whose primary function will be to review the justification for the patient’s continued detention at the time of hearing which should be reasonably close to the date of detention. This safeguard against potential unjustified detention envisages independent review from both medical and non-medical points of view and is best carried out by a multi-member panel where a man of law (at least of the experience of a senior solicitor) would preside over such proceedings. Such tribunals would have no jurisdiction over voluntary patients who will be free to admit or discharge themselves based upon capacitous decision-making ability (Eldergill 1998). Whilst the medical member will determine the case for detention from a clinical point of view, the legal member will review the case in light of the legal definitions of mental disorder, and whether the legal tests of detainability are met at the time of deliberations. The third member of the tribunal, a lay member of neither medical nor legal background, will appraise the case as a representative of the public reflecting the view of the laity. This role can be conceivably carried out by social workers, for example. The tribunal ideally should arrive at a unanimous decision, failing which the legal member must have the power of veto in recognition of the legal primacy of the body. If the tribunal is not satisfied that the legal criteria necessary for detention are met at the time it deliberates, then it must recommend the discharge of the patient. Alternatively, it can allow the detention to continue. A due legal process would consolidate the advantage to the patient of having an easily accessible clinically driven and legally sanctioned admission procedure, by simultaneously making the decision making process transparent, thereby making it ‘safer’ for the patient whose liberty has been taken away. The current act ignores this aspect of safety to a person’s liberty as most often the magistrate making the order does not examine the patient, relies excessively on recommendations of doctors who can often be non-psychiatrists with little or no expertise in the assessment and treatment of people with mental disorders, and without any scope for an independent scrutiny later. The procedure recommended for change is therefore both clinically and legally more sound and transparent. 110 Detention serves many purposes Mentally disordered patients are admitted to hospitals for many reasons. They may be admitted for assessment of their conditions, to determine whether they would benefit from treatment through its trial, either in an elective and planned manner or as an emergency, and perhaps also to determine to what extent treatment is beneficial by determining whether it brings about tangible benefit or acts merely to prevent deterioration. As discussed earlier these are all desirable goals to strive for. Some patients may wish to discharge themselves after having initially agreed to receive treatment voluntarily in hospital, or refuse treatment once admitted even if they do not express a desire to leave hospital. Appropriate orders must also be available for use against prisoners, either undertrial or convicted. A MHA should lend itself to the various clinical and practical realities that a psychiatrist faces in treating his patient and make available a range of statutory detention orders to manage such contingencies as noted above. Broadly, three separate sets of orders can feature in any new act. One set of orders would apply to those who have are not involved in the criminal justice system (civil patients), the other set for those who are (offender patients), and a third set for patients who wish to leave hospital once they are admitted. The third option will not be available for obvious reasons to those who are routed through the criminal justice system. Assessment orders for civil patients: Assessment orders will allow the examination and monitoring of a patient over a specific period of time in order to arrive at a clinical diagnosis. As stated before, it is not necessary to provide a clinical diagnosis for the purposes of detention, but it is inevitable once treatment options are considered. Duration of an assessment order must be commensurate with the purpose for which they have been made. These should therefore be significantly shorter than orders for treatment. Patients detained under this order should not be forced to accept treatment against their wishes because the order is purpose-specific, i.e. assessment, although should patients agree to receive treatment voluntarily then it would be legally and ethically justifiable to provide them so. If provision of treatment is felt to be necessary and unavoidable with the patient not consenting to it, then it can only be given under the principles of ‘best interest’ (of the patient) and ‘duty of care’ (towards the patient of the treating doctor) for such treatment to be ethically and legally justifiable. As always, treatment under