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Chapter 21 - Mental Health Laws from All UK Jurisdictions

from Section 4 - Law, Ethics, and Philosophy

Published online by Cambridge University Press:  12 September 2020

By
Carole Burrell  and
Charlotte Emmett
Edited by
Julian C. Hughes  and
Philippa Lilford
Julian C. Hughes
Affiliation:
University of Bristol
Philippa Lilford
Affiliation:
Severn Deanery, University of Bristol
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Summary

Mental health law in the UK operates within three legal jurisdictions: England and Wales, Scotland and Northern Ireland. Each jurisdiction has its own distinct laws governing the care and treatment of adults with mental disorder. Although these laws have broadly similar functions, they can be markedly different in substance and practice. This chapter provides an overview of the legal framework that governs the treatment and care of older adults with mental disorder and mental disability in the UK. It then describes the formal civil powers that exist in law to compulsorily detain and treat older people in hospital for mental disorder, and how these laws compare across the different jurisdictions of the UK.

Type
Chapter
Information
Clinical Topics in Old Age Psychiatry , pp. 279 - 292
Publisher: Cambridge University Press
Print publication year: 2020

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References

References and Notes

Joint Commissioning Panel for Mental Health. Guidance for Commissioners of Older People’s Mental Health Services. London: JCPMH, 2017; SCIE: Assessing the Mental Health Needs of Older People: mental health legislation, 2003. //www.scie.org.uk/publications/guides/guide03/law/leg.asp (Accessed 19 March 2019).Google Scholar
Such as informal admission or via the Mental Capacity Act and Deprivation of Liberty Safeguards soon to be Liberty Protection Safeguards under the Mental Capacity (Amendment) Bill: //services.parliament.uk/bills/2017-19/mentalcapacityamendment.html (Accessed 19 March 2019).Google Scholar
CQC. Mental Health Act: The rise in the use of the MHA to detain people in England. January 2018, p. 19. www.cqc.org.uk/sites/default/files/20180123_mhadetentions_report.pdf (Accessed 19 March 2019).Google Scholar
Centre for Policy on Ageing. Rapid review: diversity in older age: older offenders. 2016. www.cpa.org.uk/information/reviews/CPA-Rapid-Review-Diversity-in-Older-Age-Older-Offenders.pdf (Accessed March 19, 2019).Google Scholar
R (Munjaz) v. Ashworth Hospital Authority [2005] UKHL 58.Google Scholar
Williamson, T. Dementia, Rights, and the Social Model of Disability: A New Direction for Policy and Practice? London: Mental Health Foundation, 2015; BIHR. Mental Health Advocacy and Human Rights: Your Guide. London: British Institute of Human Rights, 2015; Mandelstam M. How We Treat the Sick: Neglect and Abuse in Our Health System. London and Philadelphia: Jessica Kingsley Publishers, 2011, pp. 229–300.Google Scholar
Modernising the Mental Health Act: Final report from the independent review. 6 December 2018. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/778897/Modernising_the_Mental_Health_Act_-_increasing_choice__reducing_compulsion.pdf (Accessed 19 March 2019); Scottish Government. Review of the Mental Health Act: Future direction of mental health and mental incapacity legislation. March 2019. www.gov.scot/news/review-of-the-mental-health-act/ (accessed March 2019).Google Scholar
With the exception of the MHA, holding power who can be exercised by a non-medical AC.Google Scholar
MHA s1(2).Google Scholar
NI Order s3(1).Google Scholar
MHCTA s328.Google Scholar
For short-term or longer-term detention.Google Scholar
In these jurisdictions, the patient’s nearest relative also has the power to make an application but this is rarely exercised.Google Scholar
On admission the patient must be examined immediately by another doctor whose report must support detention.Google Scholar
A medical practitioner certified as having ‘special experience’ in the diagnosis and treatment of mental disorder (MHCTA s22).Google Scholar
‘Extendable’ in Scotland.Google Scholar
Separate legal criteria must be satisfied and procedural requirements followed to lawfully renew/extend detention.Google Scholar
Each prepared by an AMP or by one AMP and the patient’s general practitioner.Google Scholar
Department of Health. MHA 1983: Code of Practice. 2015. TSO. para 36.3.Google Scholar
Zigmond, T. Mental health law across the UK. BJPsych Bulletin 2017; 41(6): 305–307.Google Scholar
Szmukler, G, Daw, R, Callard, F. Mental health law and the UN Convention on the Rights of Persons with Disabilities. International Journal of Law and Psychiatry 2014; 37(3): 245–252.Google Scholar
Reid v. Secretary of State for Scotland [1999] AC 512.Google Scholar
ECHR, Articles 5(4) & 6.Google Scholar
MHA s72; s75 lists Tribunal powers exercisable in England and Wales.Google Scholar
In England: Tribunal Procedure (First-tier tribunal) (Health, Education and Social care Chamber) Rules 2008; in Scotland: First-tier Tribunal for Scotland Mental Health Chamber Rules of Procedure 2018 (in draft); Wales: Mental Health Review Tribunal for Wales Rules 2008; in Ireland: The Mental Health Review Tribunal (Northern Ireland) Rules 1986.Google Scholar
‘General’ member in Scotland.Google Scholar
These are lay people.Google Scholar
Modernising the Mental Health Act: Final report from the independent review. 6 December 2018. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/778897/Modernising_the_Mental_Health_Act_-_increasing_choice__reducing_compulsion.pdf (Accessed 19 March 2019) recommends abolishing Managers’ powers of discharge at p151.Google Scholar
Mental Health (Care and Treatment) (Scotland) Act 2003, section 81.Google Scholar
Department of Health, ‘Terms of Reference – Independent Review of the Mental Health Act 191983’ (policy paper, 4 October 2017). www.gov.uk/government/publications/mental-health-act-independent-review/terms-of-reference-independent-review-of-the-mental-health-act-1983 (Accessed 21 July 2019)Google Scholar
Modernising the Mental Health Act 1983: Final report from the Independent Review. 6 December 2018. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/778897/Modernising_the_Mental_Health_Act_-_increasing_choice__reducing_compulsion.pdf (Accessed 19 March 2019)Google Scholar
See the Royal College of Psychiatrists’ summary of the recommendations in the Final Report at www.rcpsych.ac.uk/improving-care/campaigning-for-better-mental-health-policy/the-mental-health-act (Accessed 21 July 2019)Google Scholar
Modernising the Mental Health Act 1983: Final Report at page 17Google Scholar
Scottish Government. Review of the Mental Health Act: future direction of mental health and mental capacity legislation (news, 19 March 2019). https://news.gov.scot/news/review-of-the-mental-health-act (Accessed 21 July 2019)Google Scholar

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