Changes to the Mental Health and Mental Capacity Acts: implications for patients and professionals

SummaryThe new Mental Health Act 2007 for England and Wales has introduced substantial amendments to the 1983 Mental Health Act and has also amended the Mental Capacity Act 2005. Most provisions came into effect in November 2008. the introduction of supervised community treatment, changes to professional roles such as the role of ‘responsible clinician’, and the introduction of deprivation of liberty safeguards in the Mental Capacity Act are discussed. Many of the new safeguards in the Act are welcomed by clinicians and service user groups. However, other changes are more controversial and could potentially lead to an increase in the work load of clinicians.

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8. Mental health

10.1093/he/9780198871354.003.0008 ◽

2021 ◽

pp. 134-155

Author(s):

Jo Samanta ◽

Ash Samanta

Keyword(s):

Mental Health ◽

Mental Health Disorders ◽

Mental Capacity ◽

Community Treatment ◽

Legal Reforms ◽

Code Of Practice ◽

Mental Capacity Act 2005 ◽

Health Disorders ◽

Mental Capacity Act ◽

Discharge From Hospital

This chapter focuses on statutory provisions governing mental health and mental health disorders, with particular reference to the Mental Health Act 1983 and the Mental Capacity Act 2005. It first outlines modern approaches to mental disorders, including legal reforms and the MHA 1983 Code of Practice (2015). It considers the main routes by which patients are admitted to the mental health system (voluntary or involuntary), deprivation of liberty, including Cheshire West and the proposed liberty protection safeguards, and the issue of consent with regards to medical treatment. Finally, the chapter discusses community care that must be provided to people with mental health disorders following discharge from hospital, particularly aftercare and supervised community treatment orders. Relevant cases are considered.

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The law in England and Wales on mental health treatment in the community

10.1093/med/9780198738664.003.0004 ◽

2017 ◽

Author(s):

Jo Beswick ◽

Michael Gunn

Keyword(s):

Mental Health ◽

Mental Health Treatment ◽

Legal Framework ◽

Mental Capacity ◽

Community Treatment ◽

England And Wales ◽

Mentally Disordered ◽

Mental Capacity Act 2005 ◽

Mentally Disordered Offender ◽

Mental Capacity Act

This chapter examines the legal framework for the treatment of the mentally disordered offender in the community in England and Wales. It examines both some of the ideological questions underlying the care of this group and the legal mechanisms within which treatment can be provided. The chapter begins by examining the principle, endorsed by the Mental Capacity Act 2005, that voluntary treatment will usually be the norm, regardless of setting. It then considers exceptions to these norm situations where legally mandated treatment in the community is permitted. In England and Wales, most of these exceptions are to be found in three pieces of legislation: the Mental Health Act 1983, as amended in 2007 to include community treatment orders; the Mental Capacity Act 2005, with its associated Deprivation of Liberty Safeguards (DOLS); and the Criminal Justice Act 2003.

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Assessing mental capacity and making decisions

British Journal of Neuroscience Nursing ◽

10.12968/bjnn.2019.15.4.187 ◽

2019 ◽

Vol 15 (4) ◽

pp. 187-189 ◽

Cited By ~ 1

Author(s):

John Finch

Keyword(s):

Mental Health ◽

Mental Capacity ◽

England And Wales ◽

Mental Health Act ◽

Mental Capacity Act 2005 ◽

History Of ◽

Mental Capacity Act

John Finch, a legal member of the Mental Health Act Commission for England and Wales from its creation by statute in 1983 until 1991, takes a fresh look at the uncomfortable history of the Mental Capacity Act 2005 and asks whether the Act has served any useful purpose.

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Introduction to the Mental Health Act 1983 and Mental Capacity Act 2005

Mental Health & Mental Capacity Law for Social Workers: An Introduction ◽

10.4135/9781473922624.n3 ◽

2015 ◽

pp. 35-54 ◽

Cited By ~ 3

Keyword(s):

Mental Health ◽

Mental Capacity ◽

Mental Health Act ◽

Mental Capacity Act 2005 ◽

Mental Capacity Act

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Safeguards for informal patients

International Journal of Mental Health and Capacity Law ◽

10.19164/ijmhcl.v0i20.248 ◽

2014 ◽

pp. 71

Author(s):

Aswini Weereratne

Keyword(s):

Mental Health ◽

Mental Disorder ◽

Residential Care ◽

Elderly Person ◽

Mental Capacity ◽

Best Interests ◽

Mental Health Act ◽

Mental Capacity Act 2005 ◽

Mental Capacity Act

In light of the plethora of new provisions safeguarding patients who might previously have been cared for and treated informally, it may be instructive to consider who may now be considered a truly informal patient, i.e. one for whom neither process nor formality is needed. When applied to an incapacitated patient requiring treatment for mental disorder, the word “informal” may now seem oxymoronic and possibly redundant. Can such a patient ever be truly informal? Part IV of the model statute suggests that an informal patient is one who lacks capacity and does not object to proposed treatment which is in their best interests, or a patient who may be treated without the use of compulsory powers; but even such a patient must now be subject to some formality if their care or treatment is to be long term or they are to be deprived of their liberty in order to ensure proper safeguards are in place.Currently the boundary between the Mental Capacity Act 2005 (“MCA”) and Mental Health Act 1983 (“MHA”) is essentially one determined by whether the patient objects to treatment and is defined with formidable complexity in schedule 1A to the MCA. A patient eligible for MCA deprivation of liberty (“DOL”) safeguards, who could be an elderly person in long term residential care, is now subject to formal processes. There is little true informality for a patient lacking treatment capacity. It is questionable whether even a capacitated patient with mental disorder, who is by definition vulnerable, may be treated informally under the MHA4 if they feel suborned into consenting by the possibility of coercion. The terminology offers a slightly deceptive impression of a benign approach with concomitant levels of autonomy, but while it is appropriate to highlight a difference from compulsory process and keep formality to a minimum for the sake of informality, it is also important not to overplay formality in the name of safeguards. The latter appears to be the vice in which the MCA and MHA is now arguably gripped.

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Interface between the Mental Health Act and Mental Capacity Act: deprivation of liberty safeguards

Advances in Psychiatric Treatment ◽

10.1192/apt.bp.109.006890 ◽

2010 ◽

Vol 16 (6) ◽

pp. 430-437 ◽

Cited By ~ 13

Author(s):

Nick Brindle ◽

Tim Branton

Keyword(s):

Mental Health ◽

Mental Capacity ◽

Residential Homes ◽

Mental Health Act ◽

Mental Capacity Act 2005 ◽

Mental Capacity Act

SummaryThe deprivation of liberty safeguards were introduced into the Mental Capacity Act in 2008 to enhance the protection of adults in residential homes or hospitals who lack capacity in relation to their care arrangements and who are or may be deprived of their liberty. Deprivation of liberty itself is an imprecise concept and there may be difficulty in applying the appropriate authority where there is a choice between the Mental Capacity Act 2005 and the Mental Health Act 1983. Therefore, this article explains the evolution of mental capacity legislation and the concept of deprivation of liberty, how it may be recognised, prevented and authorised by deprivation of liberty safeguards, along with some of the interface issues with the Mental Health Act 1983.

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Deprivations of Liberty: Mental Health Act or Mental Capacity Act?

International Journal of Mental Health and Capacity Law ◽

10.19164/ijmhcl.v1i16.212 ◽

2014 ◽

Vol 1 (16) ◽

pp. 170

Author(s):

Richard Jones

Keyword(s):

Mental Health ◽

Mental Capacity ◽

Mental Health Act ◽

The Poor ◽

Mental Capacity Act 2005 ◽

Mental Capacity Act ◽

The Relationship ◽

Poor Relation

The provisions of the Mental Health Act 2007 which amend the Mental Capacity Act 2005 (MCA) so as to provide for a procedure that can be used to authorise the deprivation of the liberty of a mentally incapacitated person are intended to sit alongside existing Mental Health Act 1983 (MHA) powers. But the nature of the relationship between the two Acts is far from clear. This article suggests that the new MCA procedure could be very much the poor relation of the MHA.

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Mental Health Legislation

Oxford Textbook of Inpatient Psychiatry ◽

10.1093/med/9780198794257.003.0002 ◽

2019 ◽

pp. 11-22

Author(s):

Julie Chalmers

Keyword(s):

Mental Health ◽

Community Treatment ◽

Mental Health Act ◽

Mental Health Legislation ◽

Mental Capacity Act 2005 ◽

Future Challenges ◽

Human Rights Act ◽

Human Rights Act 1998 ◽

Mental Capacity Act ◽

Health Legislation

This chapter gives an overview of the mental health legislation of England and Wales as it applies to inpatient psychiatric wards, discusses some key concepts such as capacity and deprivation of liberty, and highlights the principles underpinning the Human Rights Act 1998, the Mental Capacity Act 2005, and the Mental Health Act 1983. The use of legislation at the point of admission and in the provision of treatment particularly in the absence of consent will be considered. The safeguards protecting the patient detained under the Mental Health Act will be highlighted and the use of community treatment orders on leaving hospital will be briefly touched upon. Finally, governance of the use of the Mental Health Act and some future challenges to the basis of legislation will be discussed.

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The Mental Capacity Act 2005, the Mental Health Act 1983, and the Common Law

International Journal of Mental Health and Capacity Law ◽

10.19164/ijmhcl.v1i13.178 ◽

2014 ◽

Vol 1 (13) ◽

pp. 163

Author(s):

Phil Fennell

Keyword(s):

Mental Health ◽

Common Law ◽

Institutional Care ◽

Mental Capacity ◽

Bodily Integrity ◽

Mental Health Act ◽

European Court ◽

Mental Capacity Act 2005 ◽

The Common ◽

Mental Capacity Act

This paper considers what has come to be known as the ‘interface’ between the Mental Capacity Act 2005 and the Mental Health Act 1983. Until the 2005 Act comes into force in 2007, practitioners will have to be aware of the interface between powers to admit to institutional care and treat without consent under common law and those which exist under the Mental Health Act 1983.In simple terms, the interface question is ‘When may the common law or, after 2007, the 2005 Act, be used to admit to institutional care and treat without consent, and when will use of the Mental Health Act be required?’ This article argues that there are two decisions of the European Court which need to be considered in determining how to bridge what has become the “Bournewood gap”: HL v United Kingdom and Storck v Germany. These will require that the State must provide effective supervisory mechanisms to ensure that mentally incapacitated people are not deprived of their liberty (Article 5) and do not have their right of bodily integrity interfered with (Article 8) without lawful authority.

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Amending the Mental Capacity Act 2005 to provide for deprivation of liberty

International Journal of Mental Health and Capacity Law ◽

10.19164/ijmhcl.v1i15.198 ◽

2014 ◽

Vol 1 (15) ◽

pp. 25

Author(s):

Robert Robinson

Keyword(s):

Mental Health ◽

Mental Capacity ◽

Final Part ◽

Mental Health Act ◽

Mental Capacity Act 2005 ◽

Legislative Proposals ◽

Mental Capacity Act ◽

Article 5 ◽

Domestic Law

This article considers the Government’s legislative proposals against the domestic law background, specifically their relationship with existing detention powers in the Mental Health Act 1983 (MHA) and the provisions already enacted by Parliament in the Mental Capacity Act 2005 (MCA) which expressly do not authorise deprivation of liberty. Consideration is given to whether the proposed amendments to the MCA create undesirable overlap with the existing detention powers under the MHA.The final part of the article questions the Government’s approach to demarcating the boundary between the two detention regimes. It proposes that if MCA detention were confined to those who lack capacity and do not object to their care, compliance with Article 5 could be achieved more simply and at less cost than under the Government’s proposed amendments to the MCA.

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