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

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?

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.

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.

Mental health and capacity laws in Northern Ireland and the COVID-19 pandemic: Examining powers, procedures and protections under emergency legislation

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

Capacity and incapacity: An appropriate border for non-consensual interventions?

<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>

For the first time in the UK, the Mental Health (Care and Treatment) (Scotland) Act 2003 introduced a capacity-based criterion for compulsory treatment or detention under the law, namely, impaired ability to make medical decisions. This followed the introduction of the Adults with Incapacity (Scotland) Act 2000. This is significantly different from England which has two separate Acts like Scotland but there is a lack of a capacity criterion in the Mental Health Act 2007. In Northern Ireland a Bill being put before the Assembly in 2011 aims to combine mental health and capacity laws as one piece of legislation, which will be the first of its kind in the world. This paper explores the concept of capacity in relation to mental illness, looks at the three approaches to legislation in the UK and draws together ideas around the pros and cons of using capacity criteria in mental health legislation.

This paper examines key contemporary policy and legal agendas regarding mental health, with a view to highlighting contributions that may be brought from new and emerging discourses in academic health law. In particular, it does so from the perspective of the related fields of public health law and human rights law. Whilst core definitions of public health speak to questions regarding mental health and well-being, recent reports from a range of professional and advocacy organisations urge the message that mental health remains a neglected area of concern. This has led to an emphasis on the field of public mental health as a discrete area of study, policy and practice. We argue and explain how the related field of public mental health law should be conceptualised and operationalised. This entails an examination of the fundamental requirement of law to support and promote good mental health, with a renewed focus on prevention and proactive intervention rather than reactive measures. We suggest that a framing made by reference to human rights models will support the combined ethical and practical commitments that must be met by public mental health law.

Mental health and capacity laws applicable to children and young people in Northern Ireland (NI) lack clarity and coherence, with significant gaps in service provision and safeguarding. Drawing on an examination of such laws, we argue that law reform is needed. In the short term, we suggest there is merit in publishing statutory guidance, such as a Code of Practice, to address both the issue of evolving capacity in children and to facilitate best practice in policy and practice. This modest reform in the short term should be accompanied by a firm political commitment to ensuring that NI’s innovative fusion mental capacity legislation is fully brought into force in the medium term. Meanwhile, law reform should form part of a holistic approach on the part of NI’s policy-makers towards improving mental healthcare provision for children and young people in line with a human rights-based approach. This would include the following: increased allocation of funding and resources to facilitate more timely access to suitable treatment and related services; enhancing participation in policy, judicial, and clinical decision-making that impacts their lives; and employing a range of executive accountability mechanisms to drive improvements in such provision over time.

In Northern Ireland, the current main legal framework for compulsory intervention is the Mental Health (Northern Ireland) Order 1986. It is a traditional mental health law which enables detention in hospital if mental disorder and risk criteria are met. However, under Article 3(2), it states that people should not be detained "by reason only of personality disorder". There has been a process of law reform in Northern Ireland to create a non-discriminatory, comprehensive legal framework for all. This resulted in the Mental Capacity Act (Northern Ireland) 2016. The Act, when fully implemented, will replace the Order for everyone aged 16 and over, which is in contrast to most other countries where there are both mental health and mental capacity laws. Under the new Act there are no specific exclusions so, if a person is unable to make the relevant decision, including if the cause of impairment relates to issues associated with personality disorder, then compulsory intervention is allowed as long as the proposed intervention is in the person's 'best interests'. The Act was partially implemented in 2019 and currently is only used when the Order does not apply. This article explores: the development of this new legal framework; the implementation of the Act; and some of the ongoing debates, and practice complexities, related to services for people with a diagnosis of personality disorder.

In September 1987 in Japan, the Mental Hygiene Law was amended to the Mental Health Law. This Law emphasizes the protection of human rights of the mentally disabled as well as the promotion of their social rehabilitation. In 1993, Mental Health Law was partially revised in the following four areas: (i) social rehabilitation; (ii) special rules for large cities; (iii) definition of the mentally disabled; and (iv) hogogimusha seido. The Japanese Government amended the Mental Health Law to Mental Health and Welfare Law on 1 July 1995. This law is intended to promote the welfare of the mentally disabled.

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.