Mental Health Law in England and Wales

Introduction

Mental health law in England and Wales is governed by the Mental Health Act 1983 (MHA 1983) and the Mental Capacity Act 2005 (MCA 2005). The MHA 1983 provides the statutory framework for the compulsory detention and treatment of persons with mental disorders, while the MCA 2005 provides a framework for decision-making on behalf of persons who lack capacity, including those with mental disorders. The two Acts operate in parallel, with the MHA providing for compulsion where the criteria are met and the MCA providing for best interests decision-making where capacity is lacking.

The Mental Health Act 1983

The MHA 1983 provides for the detention of persons with mental disorders for assessment and treatment, and for the treatment of detained patients without their consent. The Act applies to England and Wales and is divided into parts dealing with: compulsory admission to hospital and guardianship (Part II); patients concerned in criminal proceedings (Part III); consent to treatment (Part IV); and the Mental Health Tribunal (Part V).

Section 2 provides for admission for assessment for up to 28 days. The application must be founded on the written recommendations of two doctors and an approved mental health professional (AMHP). The grounds are that the patient is suffering from a mental disorder of a nature or degree that warrants detention for assessment and that detention is necessary in the interests of the patient’s health or safety or for the protection of others.

Section 3 provides for admission for treatment for up to six months, renewable. The grounds are that the patient is suffering from a mental disorder of a nature or degree that makes it appropriate for them to receive medical treatment in hospital, and that it is necessary for the health or safety of the patient or for the protection of others that they receive such treatment.

The Second Opinion Appointed Doctor (SOAD)

The MHA 1983 provides safeguards for detained patients who are subject to compulsory treatment. Section 58 requires that certain treatments (including medication beyond the first three months) be certified by a Second Opinion Appointed Doctor (SOAD) appointed by the Care Quality Commission. The SOAD must certify that the treatment is appropriate and that the patient has consented or is incapable of consenting.

Section 57 applies to the most hazardous treatments (including psychosurgery) and requires both a SOAD certificate and the patient’s consent.

The Mental Health Tribunal

The First-tier Tribunal (Health, Education and Social Care Chamber) , exercising the mental health jurisdiction, hears applications and references concerning the detention of patients under the MHA 1983. The tribunal has power to discharge patients from detention.

The tribunal must discharge a patient if it is not satisfied that the criteria for detention are met. The burden of proof is on the hospital to justify continued detention. The tribunal considers written evidence, hears oral evidence from the responsible clinician and the patient, and may hear evidence from independent experts.

The tribunal’s jurisdiction extends to: section 2 patients (must apply within 14 days of admission); section 3 patients (may apply once in each period of detention); and restricted patients (subject to restrictions imposed by the court or the Secretary of State).

The Mental Capacity Act 2005

The Mental Capacity Act 2005 provides a statutory framework for decision-making on behalf of persons who lack capacity. The Act applies to all decisions concerning personal welfare, healthcare, and financial matters for persons aged 16 and over who lack capacity.

The Act is based on five statutory principles: a person must be assumed to have capacity unless it is established that they lack it; a person is not to be treated as unable to make a decision unless all practicable steps to help them have been taken without success; a person is not to be treated as unable to make a decision merely because they make an unwise decision; an act done or decision made under the Act must be done or made in the person’s best interests; and before the act is done or the decision is made, regard must be had to whether the purpose can be achieved in a way that is less restrictive of the person’s rights and freedom of action.

The Act provides for lasting powers of attorney (LPAs) , enabling a person to appoint someone to make decisions on their behalf if they lose capacity. The Act also provides for court-appointed deputies and establishes the Court of Protection to decide disputes about capacity and best interests.

The Deprivation of Liberty Safeguards

The Deprivation of Liberty Safeguards (DoLS) , which were introduced by amendments to the MCA 2005, provide a framework for authorising the deprivation of liberty of persons who lack capacity and are in hospitals or care homes. DoLS were replaced by the Liberty Protection Safeguards (LPS) under the Mental Capacity (Amendment) Act 2019, which has not yet been fully implemented.

Conclusion

Mental health law in England and Wales provides a comprehensive framework for the detention, treatment, and care of persons with mental disorders. The MHA 1983 provides for compulsory detention and treatment with safeguards, the MCA 2005 provides for decision-making on behalf of persons who lack capacity, and the tribunals and the Court of Protection provide judicial oversight.