Mental Health Law
Not having the capacity to consent due to mental illness.
S. 1 (2) under Mental Health Act - competent patient
Mental Capacity Act 2005 - patient lacking capacity.
Person with a mental disorder may lack capacity - MHA or MCA?
Court may use inherent jurisdiction - DL V A Local Authority [2012] -> Justice
Munby defined the group of people in which the inherent jurisdiction might be
used in the following way:
Can be exercised in relation to a vulnerable adult who, even if not
incapaciated by mental illness, is or is reasonably believed to be either under
constraint or subject to coercion or undue influence or deprived of the
capacity to make a decision or disabled for making a free choice or
incapaciated or disabled from giving or expressing a real and genuine
consent.
Mental Health Patient - Mental Health Act (MHA)
Mental illness as a disputed concept?
Thomas Szasz-anti-psychiatry movement. Not to cure the sick but to control
what society considers as inconvenient behaviour. Mental illness is a
metaphor.
David Cooper - madness and psychosis were manifestations of tensions
between our true identity and our social identity.
R.D Laing - viewed mental illness as liberating. Madness need not be or
break down it may also be a breakthrough.
MHA permits detention with those who have a mental health illness.
Social stigma and degradation in the early years - detention to be necessary to
protect them from themselves and give them the treatment they need. Or to protect
the public. Fuels public perception that they are more at risk at harming others than
themselves. Negative representations by society.
Compulsory detention of people labelled as 'mad' under the Vagrancy Act 1744
Poorhouses - savage beatings.
1890 - Lunacy Act - incarceration in asylums.
, Decarceration - Mental Treatment Act 1930 - change of attitude - came about due
to sympathy of soldiers in the first world war who came back with post-traumatic
stress disorder.
Medicalization
Pursey Commission - voluntary and involuntary detention
MHA 1959 - short term detention, voluntary treatments.
MHA 1983 - introduced legal safeguards.
Definition of mental illness in MHA 1983
- S. 1(2) 'mental disorder' means any 'disorder or disability of the mind"'.
- S. 2(1) impairment or disturbance to the mind. MHA code of practice
- S. 1(2)(a) a person suffering from a learning disorder hall not be considered
as suffering from a mental disorder unless it causes abnormal aggression or
seriously irresponsible behavior.
- S. 1(3) dependence on alcohol or drugs is not on its own a disorder or
disability of the mind.
DSM - set out the diagnostic criteria for recognised mental disorder.
Homosexuality was previously classified as a disorder in the DSM but removed…
MHA code of practice 2015 - 3.3
Ethics
Patient - denying liberty and right to exercise autonomy. Deontology
No medical treatment without consent - autonomy - patients can be forcibly
detained and treated without consent.
Dignity - control what happens to them.
Society - society's ethical lens - patients' view
Public protection - utilitarian perspective - mentally ill is a danger to
society?
Paternalism - issues of hospitals/doctors knowing what's best for the
patients.
Experimentation? Medicalisation? And new treatments being tried out on the
mentally ill.
Human rights
Not having the capacity to consent due to mental illness.
S. 1 (2) under Mental Health Act - competent patient
Mental Capacity Act 2005 - patient lacking capacity.
Person with a mental disorder may lack capacity - MHA or MCA?
Court may use inherent jurisdiction - DL V A Local Authority [2012] -> Justice
Munby defined the group of people in which the inherent jurisdiction might be
used in the following way:
Can be exercised in relation to a vulnerable adult who, even if not
incapaciated by mental illness, is or is reasonably believed to be either under
constraint or subject to coercion or undue influence or deprived of the
capacity to make a decision or disabled for making a free choice or
incapaciated or disabled from giving or expressing a real and genuine
consent.
Mental Health Patient - Mental Health Act (MHA)
Mental illness as a disputed concept?
Thomas Szasz-anti-psychiatry movement. Not to cure the sick but to control
what society considers as inconvenient behaviour. Mental illness is a
metaphor.
David Cooper - madness and psychosis were manifestations of tensions
between our true identity and our social identity.
R.D Laing - viewed mental illness as liberating. Madness need not be or
break down it may also be a breakthrough.
MHA permits detention with those who have a mental health illness.
Social stigma and degradation in the early years - detention to be necessary to
protect them from themselves and give them the treatment they need. Or to protect
the public. Fuels public perception that they are more at risk at harming others than
themselves. Negative representations by society.
Compulsory detention of people labelled as 'mad' under the Vagrancy Act 1744
Poorhouses - savage beatings.
1890 - Lunacy Act - incarceration in asylums.
, Decarceration - Mental Treatment Act 1930 - change of attitude - came about due
to sympathy of soldiers in the first world war who came back with post-traumatic
stress disorder.
Medicalization
Pursey Commission - voluntary and involuntary detention
MHA 1959 - short term detention, voluntary treatments.
MHA 1983 - introduced legal safeguards.
Definition of mental illness in MHA 1983
- S. 1(2) 'mental disorder' means any 'disorder or disability of the mind"'.
- S. 2(1) impairment or disturbance to the mind. MHA code of practice
- S. 1(2)(a) a person suffering from a learning disorder hall not be considered
as suffering from a mental disorder unless it causes abnormal aggression or
seriously irresponsible behavior.
- S. 1(3) dependence on alcohol or drugs is not on its own a disorder or
disability of the mind.
DSM - set out the diagnostic criteria for recognised mental disorder.
Homosexuality was previously classified as a disorder in the DSM but removed…
MHA code of practice 2015 - 3.3
Ethics
Patient - denying liberty and right to exercise autonomy. Deontology
No medical treatment without consent - autonomy - patients can be forcibly
detained and treated without consent.
Dignity - control what happens to them.
Society - society's ethical lens - patients' view
Public protection - utilitarian perspective - mentally ill is a danger to
society?
Paternalism - issues of hospitals/doctors knowing what's best for the
patients.
Experimentation? Medicalisation? And new treatments being tried out on the
mentally ill.
Human rights
