The Mental Health (Patients in the Community) Act 1995 was the most unpopular feature of former Health Secretary Virginia Bottomley's policies.

It is therefore ironic that it comes into force, on 1 April 1996, only weeks after the announcement by her successor, Stephen Dorrell, of a new package for mental health which includes the 'Spectrum of care' and the mental health patients' charter.

This hopefully heralds a more positive approach towards people with mental disorders.

However, the new Mental Health Act (MHA) presupposes that it is justifiable to erode ordinary rights on the ground of mental disorder.The new Act will enable the medical officer responsible (RMO) for a patient detained in hospital for treatment under the Mental Health Act 1983 to apply for the patient's discharge under 'aftercare under supervision' (ACUS).

Solicitors representing patients who are subject to ACUS will find themselves wading through bad and repetitive drafting which contains complex and bureaucratic procedures.The diffi cult application procedure for ACUS will also prove fertile territory for applications for judicial review.

Solicitors should be alert to the potential of that method of challenge as well as for applications to the mental health review tribunal.The grounds of an application for ACUS will be that the patient suffers from mental disorder and that there would be substantial risk of serious harm to the health or safety of the patient, or the safety of others, or of the patient being seriously exploited, if he or she were not to receive aftercare services.

These services are to be provided for the patient under s.117 of the Act.

An additional ground for ACUS is that being subject to aftercare under supervision is likely to ensure that the patient actually receives the aftercare services.

Exactly how you decide what this ground might be is not clear.The application for ACuS will be made to the health authority, which may accept it after consultation with social services.

These 'aftercare bodies' may then impose requirements on the patient.

These will include residence and attendance at specified places and times for the purpose of medical treatment, education, occupation -- paid or unpaid work -- or training.Failure to comply with any or all of the requirements will lead to a mandatory review of ACUS.

This will include consideration of whether the patient should be readmitted to hospital under the existing provisions of the 1983 Act.

A new and Draconian power to 'take and convey' the patient to any of the places where he or she is required to be may also be used.

Much of the widespread opposition to the Act focuses on this.

It gives unprecedented power to mental health community workers, who will be 'supervisors' of ACUS and may either use the power themselves or authorise anyone else to do so.The practice guidance to be issued with the Act gives few details on how to execute the power.

It tells supervisors that 'unreasonable force is not to be used', but this begs the question of what reasonable force would be.

The power to 'take and convey' is a compromise between the positions of those who lobbied for and those who opposed a new power for compulsory treatment in the community.

It has succeeded in pleasing nobody, and has been widely condemned as impractical, unethical and potentially unlawful, in breach of the European Convention on Human Rights.

However, there is no power of compulsory treatment in the new Act.

The supervisor may take a person to the place where treatment will be given, but following ordinary common law principles the treatment may be given lawfully only if the person gives informed and voluntary consent.It will be impossible for medical staff to be sure that a person who apparently consents to treatment, but has been brought to them involuntarily and perhaps by force, is simply submitting to coercion.

The power to 'take and convey' will be a permanent threat to people who are likely to be amongst the most vulnerable in our society.

It is so wide and arbitrary that it is open to abuse.

It militates against achieving the consent, co-operation and involvement in treatment decisions that is at the heart of good care for people with mental health problems.A patient subject to ACUS has no hearing before the application is accepted but may appeal to a mental health review tribunal afterwards.

Extra money for tribunal members' costs has been made available.An example of complexity and bureaucracy is that before the RMO makes an application, he or she must consult or arrange for consultations with a number of peop le, and the applications must be supported by recommendations from doctors and social workers.

Guidance states that the patient should agree to the aftercare services, but this is not explicit in the Act.Given that patients under ACUS would be subject to substantial limits on their liberty the procedure for application should be meticulously followed.

In the recent case of Re S-C [1995] The Times, 4 December, the Court of Appeal ruled that a decision to detain, which had been made on the basis of an application that had not been completed in accordance with the Mental Health Act 1983, was unlawful.Applications to the mental health review tribunal are likely to prove difficult.

The tribunal has a discretion to direct the end of aftercare under supervision, but is obliged to direct this only when it is satisfied that the grounds for aftercare under supervision have not been complied with.-- MAIN PROVISIONS OF THE ACT-- Discharge from detention in hospital into supervised aftercare.-- Appeal to a mental health review tribunal from supervised discharge.-- Named key worker -- 'the supervisor'.-- Power to impose requirements to attend for medical treatment, occupation, education or training.-- Requirement to allow access for key workers.-- Power to convey to residence by supervisor or person authorised by supervisor.-- Maximum period for trial leave extended up to 12 months.-- Provisions in relation to patients absent without leave revised.By Kate Harrison.AN ASSESSMENT OF THE RIGHTS CREATED BY THE NEW CARERS ACT, IN FORCE ON 1 APRIL 1996The new Carers (Recognition and Services) Act 1995 gives carers the right to ask social services authorities to carry out a separate assessment of their ability to provide and to continue to provide care.

It represents another important development in the law of community care, which is becoming an increasingly important part of the solicitors' general practice.

Elderly clients are most obviously affected, as most carers are themselves elderly.

Solicitors should consider offering a carer assessment service in addition to the general advice that is now given on residential or nursing homes, community care charging rules, powers of attorney, living wills etc.Criminal law practitioners will also need to be familiar with the right of their client to an assessment and services if there is, for instance, an alcohol, drug or mental health difficulty.

A carer's assessment may be an important mitigation tool in such cases.Personal injury lawyers will need to advise clients of their rights to community care services.

Here again, the carer's assessment may be an important document in assessing quantum, particularly in respect of damages for increased home care costs.

The discretionary charging for such services by local authorities is becoming an increasingly relevant out-of-pocket expense in such claims.Guidance accompanying the Act emphasises that assessors should not assume a willingness by the carer to continue caring, or to continue to provide the same level of support.

The right to assessment only applies to carers who provide -- or intend to provide -- a substantial amount of care on a regular basis.

The decision as to what is substantial will be left to each local authority, but previous community care guidance has suggested a wide interpretation which fully takes into account the individual circumstances of the carer (app 4 LAC(93)10).

This must be the case, because the Act applies not only to adult carers but also to young carers aged under 18.The object of a carer's ass essment is to enable the authority better to understand the care needs of the disabled, elderly or ill person.

If, say, such an assessment shows that the carer is on the brink of being unable to cope, then an authority may be obliged to increase the level of support to the person for whom he or she cares.However, the service is provided to the cared-for person.

To ensure that the interests of the carer and the person for whom they care are considered at the same time, the carer assessment can only take place when the person for whom they care is also being assessed.

The obligation to assess disabled, elderly or ill adults stems from s.47 of the NHS and Community Care Act 1990; the equivalent assessment regime for children stems from s.17 of the Children Act 1990 and s.2 of the Chronically Sick and Disabled Persons Act 1970.There are few, if any, services which benefit carers and which cannot also be expressed as a service to the person for whom they care.

For instance, respite care is not a service provided to a carer -- although it is frequently the service they are most eager to obtain -- but a service for the disabled, elderly or ill person.

If the respite care is provided for a short period in a residential care or nursing home, it is provided under s.21 of the National Assistance Act 1948, although it may also be provided by the health authority under the NHS Act 1977.

If the respite care is provided by the carer having a short break away from the home and the social services authority placing a home care assistant temporarily into the home, then it is a service under s.2 of the Chronically Sick and Disabled Persons Act 1970; sched 8 to the NHS Act 1977; or s.45 of the Health Services and Public Health Act 1968.One advantage to carers of not being entitled to community care services in their own right is in relation to home care charges.

Only the recipient of a community care service, such as home help, can be charged for that service.

This means that only the recipient's financial circumstances can be assessed for charging purposes, ignoring the carer's income or savings even if they are the spouse of the service user.If services could be provided to carers, their income and savings could be aggregated with those of the disabled person in assessing the level of charge.

They would then suffer the double indignity of not receiving any state financial assistance for fulfilling their crucial role of under-pinning care in the community but still being charged for respite services.-- MAIN PROVISIONS OF THE ACT-- Carers have the right to a separate community care assessment.-- It only applies to carers who provide, or intend to provide, substantial care on a regular basis.-- Assessment applies to carers of any age.-- Any resultant community care services will be deemed to be services provided to the disabled person, so carers will not be charged for them.By Luke Clements