Mental Health Law

Mental Health Law
- Mental health law authorises compulsory treatment and detention
o How does this fit with dominant principle of patient autonomy?
 The only exception of autonomy – competent patients don’t always have the right of autonomy
 Treating them without their consent
 Sometimes have capacity, sometimes don’t have capacity- could be under the MCA remit
 MHA takes priority
 Mental illness and mental capacity are not mutually exclusive
Possible justifications?
• A mechanism to access treatment (if patient also lacks capacity)?
• Only applies to patients who lack capacity
• To protect the patient from him or herself?
• When they have capacity
• But we don’t do this for physical illnesses who could also be a risk to themselves?
• To protect the public
• When they have capacity
How common is mental illness?
- Around 400 people out of 1,000 will experience mental health problems every year in Britain:
• 230 of these will visit a GP
• 102 of these will be diagnosed as having a mental health problem
• 24 of these will be referred to a specialist psychiatric service
• 6 will become inpatients in psychiatric hospitals.
• Application of mental health law isn’t common
Policy trends:
1. Decarcertaion: [shutting down large asylums]
o Community care assumed to be cheaper
 Didn’t prove to be accurate. Treating someone in the community is more expensive because you have
to go out into the community to care for them- compared to when they were all located in the same
place.
o Rise of drugs like tranquillisers led to medical model of insanity
 Symptoms being managed to enable them to live in the community
o Discovery that mental illness was common
o Discovery of widespread abuse within institutions, and abusive use of detention
 Example: becoming pregnant w/out being married was seen as lunacy- they were sent to asylums [early
20th century]. Would lock them up for decades
 Good thing to shut down asylums, but wrong to assume that community care would be cheap
2. Community care?
 Integration back into community after asylums was very difficult. It was very expensive to transition.
Now those people are homeless and have drug/alcohol problems- 5 times higher than average person
o people disappeared from official statistics
o assumed the existence of informal carers
o assumed integration would be easy
o high quality community care is expensive.
3. Detention for dangerousness
 Popular in the early 2000s
o Media reports of mentally ill people who are ‘free to kill’
o Is society becoming less tolerant of people who are mentally ill?
o Amending Mental Health Act 2007:
 ‘invention’ of new category Dangerous and Severe Personality disorder (DSPD)
 The government was convinced of their existence – most people aren’t dangerous, pose more
of a danger to themselves
 This was a difficult Act to amend
4. Non-Discrimination: positive trend.
o Independent Review of the Mental Health Act (2018)
 An expert panel set up to look at the MHA. Really patient focused and positive. Not sure that this will
lead to new legislation. A proposal for reform in the form of this review
 … we intend to shift the balance of power between patients and professionals. To make it easier for a
patient’s wishes to be respected both in the present and the future, in anticipation of the sad
reality that many patients who have had one compulsory admission are likely to be faced with another.
I believe that our proposals will lead to a culture change with our inpatient services, that the default
position will be to respect such choices, rather than reject them…
o UN Convention on the Rights of Persons with Disabilities
 … ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons
with disabilities …
Parity of esteem?