Zigmond T and Brindle N, A Clinician’s Brief Guide to the Mental Health ActHuline-Dickens S, A Clinician’s Brief Guide to Children’s Mental Health LawThe Law Society, Deprivation of Liberty: Collected Guidance

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.

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

When compared with the Mental Capacity Act (MCA) 2005, the Mental Health Act (MHA) 1983 seems an outlier. It authorises compulsory treatment of mental disorders on the basis of P’s risks. English law, therefore, discriminates between mental and physical disorders. Following the UK’s ratification of the Convention on the Rights of Persons with Disabilities (CRPD), the MHA probably also violates international law. Against this backdrop, one might expect that decisions contingent on risk are confined to the MHA and have no relevance elsewhere. This article argues that the opposite is true: risk-based decision-making has colonised MCA processes and plays a key role in determining the nature of P’s interaction with health services. These ‘continuities’ of risk are most notable in the Deprivation of Liberty Safeguards (DOLS), where assessments of risk are implicitly significant for best interests and eligibility determinations. Using governmentality theory as an explanatory model, this article claims that the DOLS can be reconstructed as part of a wider legal apparatus for the regulation of the risks of harm associated with mental disorders. The article also argues that the Law Commission’s recent proposals to introduce a new ‘protective care’ scheme and expand the remit of the MHA hint at a ‘rehabilitation’ of risk as an integral component of mental health and capacity law. The article concludes that the concept’s stigmatising potential, lack of definition, and conflict with the CRPD cast doubt on its capacity to reconcile English mental health law with the era of autonomy, capacity, and non-discrimination.

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 Pragmatic Aspects of Assessing Mental Capacity Ajit Shah (bio) Keywords capacity, competence, mental health law, and assessment My feature article highlighted some of the concerns leading to anomalies between the Mental Capacity Act 2005 (MCA) and subsequent introduction of Deprivation of Liberty Safeguards (DOLS) into the MCA in England and Wales. Thornton provides an elegant and detailed philosophical account of various aspects of the assessment of decision-making capacity. One cannot argue against his line of reasoning. The problem clinicians have is to implement legislation that dictates the definition of decision-making capacity. In day-to-day clinical work, it is not possible to use philosophical arguments in the determination of decision-making capacity because legislation requires it to be conducted in a very specific manner. Thus, there is yet another tension (to add to Thornton’s several tensions) between perfectly reasonable philosophical constructs and the actual legislation that clinicians are required to implement. Almost all of what is described by Banner is accurate. There is little in her commentary that is incompatible with my original paper. Banner argues that much of what is in the DOLS legislation is covered by other existing laws. However, she misses an important point. The issue of depriving someone of their liberty needs to be compliant with the European Charter on Human Rights, and this was the judgement of the European Court in the Bournewood case. Thus, legislation covering deprivation of liberty had to be compliant with the European Charter on Human Rights, and DOLS were the government’s response to this. The government could have taken a different approach and ensured that existing legislation, which, according to Banner, already covered areas that DOLS covers, were made compliant with the European Charter on Human Rights. However, this approach was not adopted and we are left with DOLS. Lucas (2011, 118) states that, “if the Code of Practice were to require that we only assess capacity in cases in which the individual concerned has already been shown to lack capacity then we would be confronted by a double-bind: we cannot assess someone until we have shown that they lack capacity, and we cannot show that they lack capacity until we have assessed them.” He goes on to say that “Such a double-bind would be a serious shortcoming in the guidance, and it is implausible to suppose that it might have been overlooked by the authors of the code” (Lucas 2011, 118). He misses the point that the first statutory principle of the MCA states that decision-making capacity is presumed and should only be assessed if there [End Page 133] is reason to believe that to may be impaired. The MCA goes on to describe potential situations when decision-making capacity should be assessed and Lucas has described those conditions. Thus, it is not a double-bind. By routinely assessing decision-making capacity for admission into a hospital or a care home, there is a clear breach of the first statutory principle of the MCA. Moreover, this subjects an individual to an unnecessary assessment. Moreover, Lucas makes no reference to the individual’s right to liberty under article 5 (1) of the European Charter on Human Rights. This would clearly be breached by unnecessary intrusion in assessing capacity by ignoring the first statutory principle of the MCA. Lucas (2011, 122) further reports that “A retreat from the rather demanding occasionalism of the MCA and associated guidance, in the direction of administratively more convenient procedures that effectively regard capacity as an enduring status, would be an instance of what Lorraine Code terms the objectification of patients (Code 1995, 83–4).” Capacity is not viewed as an enduring status in DOLS. Legislation pertaining to DOLS makes it very clear that the best interest assessor should decide on the duration for which deprivation of liberty should be authorized and no more than 1 year. One factor that will contribute to the decision on the duration for the authorization of deprivation of liberty is the likelihood of change in capacity over time (there are several other factors that would also be considered). For example, a patient with delirium may require DOLS when ill, but such a...

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.

The CRPD and mental health law reform in Scotland

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.

The island of Ireland is partitioned into Northern Ireland and the Republic of Ireland. In both jurisdictions, there have been important developments in mental health and mental capacity law, and associated policies and services. This includes an emphasis on developing more comprehensive approaches to collecting data on outcomes and so there is an opportunity to align these processes to enable comparison and shared learning across the border. This article explores: legal and policy developments; international approaches to mental health outcomes; and the type of data that would be helpful to collect to better understand the use of mental health and mental capacity laws. It is argued that an inclusive strategy to developing a comprehensive, integrated and aligned approach to collecting and analysing data would benefit citizens, policy makers and professionals.

Persons with disabilities are subject to unique forms of deprivation of liberty, often justified by reference to the need to protect their right to life, right to health, and to protect the human rights of others. This paper examines disability-specific forms of deprivation of liberty, particularly those authorised in mental health and capacity law, in light of their compliance with European and international human rights frameworks. It explores the apparent tension between Article 5 of the European Convention on Human Rights, which permits deprivation of liberty of ‘persons of unsound mind’ in certain circumstances, and Article 14 of the UN Convention on the Rights of Persons with Disabilities, which states that ‘the existence of a disability shall in no case justify a deprivation of liberty.’ The challenges in attempting to comply with both provisions are illustrated through reference to developments in England and Wales. This paper also seeks to offer a way forward for States Parties to both Conventions, in order to protect the rights of persons with disabilities.

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.

<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>