The Use of Capacity Criteria in Mental Health Laws in the UK

Unified mental health and capacity law: Creating parity and non-discrimination?

The increasingly complex interface between the Mental Health Act 1983 and the Mental Capacity Act 2005 has been discussed in this column over the last three months. The boundaries between the two statutes is becoming increasingly blurred with the Court of Protection, a specialist court that considers cases about people lacking decision-making capacity, commonly being asked to make decisions on mental health law as well. Northern Ireland is proposing to resolve the interface problem by repealing its mental health laws and replacing them with a single statutory framework for mental capacity law. If passed, it will give all adults with capacity the right to consent to or refuse any form of treatment. Physical and mental conditions will be on an equal footing and there would be no compulsory detention or treatment of adults with capacity. For those whose lack capacity, treatment will be available in their best interests with arrangements in place to authorise situations where the care arrangements amount to a deprivation of liberty. In this article Richard Griffith considers the new proposals for Northern Ireland and wonders where these proposals point the way for the other devolved nations to develop their mental health and mental capacity law for a 21st century Britain.

This chapter begins with the historical developments that put mental health and capacity law into context, then moves on to the relationship to other areas of law. It describes the principles, and the roles of professionals and relatives. It goes on to explain the procedures for using civil powers, and civil admission for treatment. Consent to treatment, leave from hospital, civil community treatment, and after-care. The chapter then details police powers under mental health law, court-ordered pre-sentence assessment and sentence of treatment, alongside other court orders. Transfer from prison to treatment is included, with restriction orders, then appeals against treatment and detention is outlined. The subsequent section outlines human rights law, the European Convention of Human Rights, misuse of mental health law, and finishes with mental capacity laws.

Mental health and capacity law can often feel complex and bewildering. They are governed by a range of different legal frameworks, including (but not limited to) the Mental Health Act 1983 (MHA), the Mental Capacity Act 2005 (MCA), and the Human Rights Act 1998 (HRA). Each legal framework comes with its own unique set of legal principles and ideological baggage, and is also subject to the constant ebb and flow of case law. Last year alone saw major judgments handed down on, for example, the interface between the MHA and MCA,1 the zone of parental responsibility in relation to 16 and 17 year olds,2 and deprivation of liberty in intensive care settings.3 The legal frameworks are also subject to frequent legislative reform; most recently the Police and Crime Act 2017, which reformed police powers under sections 135 and 136 of the MHA and the duties of coroners to investigate the deaths of people who were subject to the Deprivation of Liberty Safeguards (DoLS). Even the judiciary and specialist legal practitioners struggle to keep abreast of the changes. However, mental health and mental capacity law is not ‘lawyers’ law’, in the sense that it is not primarily played out in the courtroom. It is written overwhelmingly for front-line health and social care professionals (and in the case of the MCA, family and other unpaid carers), most of whom will have had no formal legal training. The question, therefore arises, how can busy professionals become and remain fully conversant with these complex and fluctuating legal frameworks?

This chapter focuses on two large-scale legal changes that have occurred in England and Wales since the publication of the first edition of this text, the Mental Capacity Act 2005, and the Mental Health Act 2007. Mental health law is concerned with the management of people who are afflicted with poor mental health. Mental health legislation, like all European legislation, is subject to the European Convention on Human Rights. Mental capacity was hardly mentioned in psychiatric books in the twentieth century; it is everywhere and causing some confusion. An approved clinician may be a doctor or other mental health professional who has had specialized training. The pre-2007 Mental Health Act 1983 contained various ‘exclusions whereby a person might not be treated as suffering from a mental disorder by reason only of promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs.’.

The CRPD and mental health law reform in Scotland

本研究目的在於探討台灣、日本及英國之精神衛生法的內容有何異同及日本及英國之精神衛生法有哪些可供我國修法之參考? 研究方法採文獻研究法（Archival Research），以較宏觀的角度將台灣、日本及英國的精神衛生法從橫斷面及縱剖面進行跨國比較研究。 研究結果發現，我國精神衛生法公布施行迄今十三年，尚未修法，其中許多條文也已不符社會需求，且有2/3條文侷限於精神醫療，相較於日本精神醫療只佔1/3、英國只佔1/5條文。分析結果發現我國精神衛生法除保護精神病人權益有待加強，精神病患犯罪之治療、精神病患財產管理及保護、強制住院自動審查制度等，我國都付之闕如。 研究者經比較研究台灣、日本及英國的精神衛生法之重要條文內容、修法趨勢及經驗，對於我國修法之建議如下： 1.修正立法目的：「增進國民心理健康，預防及治療精神疾病，保障病人權益及福利，協助病人回歸社會、自立及參與社會經濟活動。」 2.修正衛生署及地方衛生局「得設」精神疾病防治審議委員會改為「應設」，並強化「精神疾病防治審議委員會」的功能。 3.增列「強制門診治療」、「強制社區治療」、「強制社區鑑定」及「緊急強制留置」之規定，提供多元強制鑑定及強制治療的方式。 4.修正「精神病患強制鑑定，除要有二名精神科專科醫師之診斷一致，也必須要有該院職員在場證明」，以維護病人權益。 5.增列「設置獨立公正之委員會，審查強制住院是否有繼續之必要」及「建立自動審查制度」，以保障病人之人身自由權。 6.修正「嚴重病人之定義」，其文字應明確化。 7.修正「家屬之定義」，應參考民法，以避免同詞異義。 8.刪除「精神衛生法第19條」，有關家屬或保護人需負連帶賠償責任之相關規定。 9.增列「精神病患家屬之權利」，家屬並非只有義務，而沒有權利。 10.增列「精神病患約束及隔離之處理標準及作業程序」，包括：診斷、執行原因、方式、時間、次數、用藥、精神症狀及專業人員應視察之次數等，並都應詳實記載於病歷，以保障精神病患人身自由，不致遭受不當的人權侵害。 11.增列「精神病患強制鑑定、強制住院或精神病犯強制住院，病人、家屬或保護人有申請出院的權利」，以保障精神病患人權。 12.增列「司法對精神病人犯罪治療之相關規定」，以保護病人人權及落實治療重於監禁。 13.增列「精神病人財產管理及保護之相關規定」，以保護病人財產權。 14.增列「精神衛生、社會福利及職訓就業等相關規定之整合」，以精神病人為中心，提供整體及連續之社區復健服務，協助精神病人早日回歸社會。 15.增列「每五年定期檢討修法」。 我國精神衛生法修法，除參考日本及英國等先進國家之修法經驗及趨勢，也應參考世界衛生組織宣言及加強精神病人人權保護，落實精神醫療、社區復健、心理衛生保健三者並重。同時，精神衛生法修法仍應以尊重精神病人及保護病人權益為目的。而面臨修法之際，必須改變的是：修法腳步應加快、修法之目的、方向及架構應更明確、確保不同的團體都有公平參與修法的機會、要有足夠的相關研究作為修法參考之基礎及發展多元方案配套措施。

<p>When the Bamford Review of Mental Health and Learning Disability completed its work in the autumn of 2007, it drew to a close an extensive consultation and analysis of mental health and learning disability services and the law in Northern Ireland. Its last report on A Comprehensive Legislative Framework made<br />a compelling case for a major overhaul of the law that the Review team itself described as ‘quite radical’. The Review identified the case for reform in the need to ensure that mental health law conforms to the requirements of human rights law, reflects changes to professional practice, reflects the needs of service<br />users and their carers, and keeps pace with reform elsewhere in the UK. Alone of all the jurisdictions in the UK, Northern Ireland has been operating largely in a legislative vacuum in relation to mental capacity law. The Review’s proposals for reform therefore extended to reform of mental health law and the introduction of mental capacity law.</p><p>In the autumn of 2008 the NI Executive published its response to the Bamford Review indicating that it intended to develop the law sequentially: reform of the Mental Health (NI) Order 1986 by 2011 followed by the introduction of mental capacity law in 2014. Responses to the Executive’s consultation resulted in<br />the Department of Health Social Services and Public Safety (DHSSPS) revising its approach and it signalled its intention to bring forward mental capacity and mental health legislation together. This reated a unique opportunity in Northern Ireland for fusion of incapacity and mental health legislation. A further consultation paper was issued in January 2009, setting out the key approaches to the content<br />of two bills. However as a result of the consultation, the Health Minister Michael McGimpsey announced in September 2009 that there would be a single bill with an overall principle of autonomy. His press statement noted: “ A strong body of opinion, particularly from professional groups and lead voluntary organisations, which considered that separate mental health legislation continues to be stigmatising and recommended that mental capacity and mental health provisions should instead be encompassed into a single piece of legislation”</p><p>This short paper provides an overview of the current direction of travel on law reform in Northern Ireland. It comments on the policy climate and arguments for a fusion of mental capacity and mental health legislation. It also highlights some of the key policy issues that will need to be further explored as the Department develops its law reform proposals and concludes with some hopes and fears for the new legislation.</p>

Advance statements documenting mental health service consumers' preferences for treatment during a future mental health crisis or period of incapacity have gained currency in recent years in the United States and some European countries. Several kinds of advance statements have emerged—some as legal instruments, others as treatment planning methods—but no formal comparison has been made among them. This article reviews the literature in English and German to develop a comparative typology of advance statements: joint crisis plans, crisis cards, treatment plans, wellness recovery action plans, and psychiatric advance directives (with and without formal facilitation). The features that distinguish them are the extent to which they are legally binding, whether health care providers are involved in their production, and whether an independent facilitator assists in their production. The differing nature of advance statements is related to the diverse models of care upon which they are based and the legislative and service contexts in which they have been developed. However, there is recent convergence between the United Kingdom and the United States with respect to research interventions that facilitate the production of advance statements, as evidence emerges for the effectiveness of facilitated psychiatric advance directives and joint crisis plans. Different types of advance statements can coexist and in some cases may interact in complementary ways. However, the relationship of advance statements to involuntary treatment is more problematic, as is their effective implementation in many mental health service settings. (Psychiatric Services 59:63—71, 2008)<br/><br/>Dr. Henderson is affiliated with the James J. Peters Department of Veterans Affairs Medical Center, Mental Illness Research, Education and Clinical Centers, 130 W. Kingsbridge Rd., Bronx, NY 10468 (e-mail: rosalind.henderson@va.gov). Dr. Swanson is with the Department of Psychiatry and Behavioral Sciences, Duke University Medical Center, Durham, North Carolina. Dr. Szmukler and Dr. Thornicroft are with the Health Service and Population Research Department, Institute of Psychiatry, King's College, London, United Kingdom. Dr. Zinkler is a consultant psychiatrist at the East London National Health Service Foundation Trust.<br/><br/>The aim of advance statements regarding mental health care is to give patients more influence over future treatment decisions, thus reducing the occurrence of coerced treatment. Theoretically possible types of advance statements have been delineated (1), but existing interventions have not been reviewed and compared. The aims of this review are to describe the main dimensions along which existing advance statements vary; to provide a background of the policy and service context in which each type of advance statement has developed; to compare each with respect to research evidence, estimated potential value, and barriers to implementation; to examine their compatibility or conflict with the practice of involuntary treatment, particularly in the community; and to consider the extent to which these statements may coexist with each other.

The WPA-Lancet Psychiatry Commission on the Future of Psychiatry

A new mental health law to protect patients' autonomy could lead to drastic changes in the delivery of mental health services: is the risk too high to take?

The Convention on the Rights of Persons with Disabilities (CRPD) requires a reconceptualised approach to rights enjoyment by persons with mental disabilities promoting equality through support, institutional and environmental adjustments, and envisaging ‘protection’ in terms of all rights enablement and not rights restriction. Mental health and capacity law has tended to focus exclusively on authorizing and regulating non-consensual interventions, contrary to the CRPD message. Scotland’s current mental health and capacity law is no different. The terms of reference of the 2019–22 independent review of this law included making recommendations on CRPD realization. The resultant recommendations sought to strengthen the voice of persons with mental disabilities, reduce psychiatric coercion, and secure the enjoyment of all rights whilst providing an aspirational but workable basis for achieving CRPD alignment. It proposed a new model for mental health and capacity law, centred on reconceptualising mental health and capacity law to take account of realization of all categories of human rights, equality in the enjoyment of such rights, and reduction of non-consensual measures. This article will consider the practical and conceptual CRPD implementation challenges faced by Scotland and other countries, and the Review’s recommendations, seeking to address them in their wider context.

Chile does not have a mental health law or act, and no single legal body protecting those deemed to be afflicted by a mental disorder, setting standards of care and protecting and promoting their rights. Instead, pieces of mental health legislation are scattered about in different legal and administrative documents, including the country's Constitution, Health Code, Criminal Code and Civil Code. Remarkably, mental health legislation was the object of virtually no change or amendment from the middle of the 19th century until the year 2001. New pieces of legislation have been issued since but, despite improvements in the protection of people suffering from a mental illness, a mental health law in Chile is still needed.

It is almost 30 years since the policy which underpins the current Victorian Mental Health Act was developed. The delivery of mental health services has changed dramatically over those years. As a result, the Act has been amended on numerous occasions, rendering it inaccessible for most people other than mental health law specialists. This article suggests that it may be time to legislate again, despite acknowledging that legislation tends to follow rather than precede change in mental health service delivery. The article traces the history of Victorian mental health legislation, from the opening of the first asylum in 1848, to the agitation for reform in the late 1970s which led to the passage of the current Act. Law reform is enhanced by clear identification of the values that underpin our laws. The new Victorian Charter of Human Rights and Responsibilities Act and the UN Convention on the Rights of Persons with Disabilities may assist in identifying important contemporary values which should inform new mental health laws. The following areas merit consideration when new mental health laws are considered: advance directives, the interaction between mental health and guardianship laws, information for family and friends of patients, the extended use of community treatment orders, the grounds for civil commitment, the jurisdiction of the Mental Health Review Board of Victoria, and the establishment of a commission to coordinate research and planning for the delivery of mental health services.

Mental health insurance laws are intended to improve access to needed treatments and prevent discrimination in coverage for mental health conditions and other medical conditions. The aim was to estimate the impact of these policies on mental health treatment utilization in a nationally representative longitudinal sample of youth followed through adulthood. We used data from the 1997 National Longitudinal Survey of Youth and the Mental Health Insurance Laws data set. We specified a zero-inflated negative binomial regression model to estimate the relationship between mental health treatment utilization and law exposure while controlling for other explanatory variables. We found that the number of mental health treatment visits declined as cumulative exposure to mental health insurance legislation increased; a 10 unit (or 10.3%) increase in the law exposure strength resulted in a 4% decline in the number of mental health visits. We also found that state mental health insurance laws are associated with reducing mental health treatments and disparities within at-risk subgroups. Prolonged exposure to comprehensive mental health laws across a person's childhood and adolescence may reduce the demand for mental health visitations in adulthood, hence, reducing the burden on the payors and consumers. Further, as the exposure to the mental health law strengthened, the gap between at-risk subgroups was narrowed or eliminated at the highest policy exposure levels.