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.
Mental health law in the UK operates within three legal jurisdictions: England and Wales, Scotland and Northern Ireland. 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.
Each of the three legal jurisdictions in the UK has its own distinct laws governing the care and treatment of adults with mental disorder (see Table 21.1). Although these laws have broadly similar functions, they can be markedly different in substance and practice.
|UK jurisdiction||Mental Health Law: provides for the compulsory detention and treatment of ‘patients’ for mental disorder.||Mental Incapacity Law: governs decision-making on behalf of people who lack capacity, including provisions for advance care and financial planning.||Human Rights Law|
|England & Wales||Mental Health Act 1983 (as amended by 2007 Mental Health Act)||Mental Capacity Act 2005|
|Scotland||Mental Health (Care and Treatment) (Scotland) Act 2003 (as amended by 2015 Mental Health (Scotland) Act)||Adults with Incapacity (Scotland) Act 2000|
|Northern Ireland||Mental (Northern Ireland) Order 1986||Common Law (judge-made principles derived from case law)|
|Mental Capacity (Northern Ireland) Act 2016 (expected to come into force in 2020)|
Traditionally, in each jurisdiction, the treatment and care of older people for mental disorder and mental disability have potentially fallen under two parallel yet overlapping legislative frameworks. On the one hand, mental health legislation comprising the Mental Health Act 1983 (MHA) in England and Wales, the Mental Health (Care and Treatment) (Scotland) Act 2003 (MHCTA) in Scotland, and in Northern Ireland the Mental (Northern Ireland) Order 1986 (NI Order) has provided both informal and formal powers to treat ‘patients’ for mental disorder in hospital or in the community. The function of this legislation is broadly similar across the UK: to treat mental disorder, using compulsion if necessary, whilst minimising the risk to the patient and/or others. On the other hand, separate incapacity laws have provided a more generalised framework that regulates decision making (including medical treatment decisions) on behalf of adults who lack capacity due to mental disorder or disability (e.g. dementia, brain injury, learning disability). In England and Wales, the Mental Capacity Act 2005 (MCA) and in Scotland, the Adults with Incapacity (Scotland) Act 2000 are the primary statutes which govern this area, whereas Northern Ireland has operated for many years under common law or ‘judge-made’ principles. The underlying ethos of mental incapacity law is the empowerment of the incapacitated individual, by maximising decision-making capacity and intervening in a person’s best interests, in the least restrictive way.
Whilst these frameworks are separate, with distinct functions and court systems, their use is not mutually exclusive. An older person diagnosed with advanced dementia, for example, might be treated under more than one legal regime at any one time, receiving compulsory treatment in hospital for a mental disorder using formal powers, whilst also receiving treatment for an unrelated physical condition under incapacity laws if she lacks capacity, or under common laws when capable of making that choice. The appropriate legal framework to use in each case will depend on a range of factors, including the type of treatment proposed (i.e. whether it is for mental or physical disorder), whether a person has decision-making capacity, a person’s detained status and whether they agree to the administration of treatment and care.
Although, at the time of writing, this mental health/mental incapacity distinction still exists across the UK, Northern Ireland has recently enacted sweeping law reform which aims to ‘fuse’ mental health and mental capacity laws under one broad statute. The new Mental Capacity (Northern Ireland) Act 2016 was passed by the Northern Ireland Assembly on 15 March 2016 and received Royal Assent on 9 May 2016. When the Act comes into full force, the authority for all mental health treatment will be based on either impairment of decision-making capacity and best interests, or will stem from the consent of the capacitated individual. Put another way, once the 2016 Act is in full force, it will no longer be possible to use separate mental health laws to compulsorily treat patients in Northern Ireland against their will when they retain capacity and refuse treatment.
Full implementation of the 2016 Act is not envisaged until late 2020, although provisions that relate to Deprivation of Liberty are due to come into force by 1 October 2019. The Mental Health (Northern Ireland) Order 1986 will remain in place for all until full implementation, when it will be replaced, for those aged 16 and over, by the new Act.
Whether full implementation can be realised by 2020, at a time when the Northern Ireland Assembly is (at the time of writing) suspended and alongside the deepening constitutional challenges of Brexit, remains to be seen. For this reason, we retain reference to the 1986 Order in the remainder of this chapter, whilst being alive to the possibility that a new capacity-based legal framework might be implemented in Northern Ireland under the 2016 Act in the not so distant future.
Older patients who are compulsorily detained in hospital for mental health treatment in the UK fall broadly into two groups: those who develop mental illness (predominantly dementia or depression) for the first time in later life, usually, but not always, as a consequence of the ageing process; and those with so-called ‘enduring mental health problems’ such as schizophrenia, psychosis and personality disorder.1 Often mental disorder sits alongside other complex and interrelated physical health needs and can be compounded by factors such as alcohol misuse or extreme frailty. Older people might typically be detained in hospital if they are refusing treatment and display challenging behaviour or serious self-neglect that poses a risk to themselves or others which warrants a period of inpatient assessment and/or treatment. However, formal powers should be used only where inpatient hospital treatment is considered necessary, and only then when no other less restrictive way of providing care and treatment is available.2
In spite of the alarming rise in the use of formal powers to compulsorily detain older patients across the UK,3 most older patients will enter hospital voluntarily as ‘informal’ patients under civil as opposed to criminal provisions. Nevertheless, a small minority of older people are detained as a result of a court order following criminal proceedings, or might already be under sentence in prison and require transfer to hospital for psychiatric treatment. Whilst these numbers are very small, prisoners over 65 years represent one of the fastest-growing age groups in prison, often exhibiting high rates of psychiatric and physical co-morbidity that require mental health intervention and treatment.4
Outside hospital settings, there are a number of ways in which older people living in the community can be legally compelled to engage with mental health services or receive mental health treatment. In England, Wales and Northern Ireland for example, older people who satisfy certain statutory criteria can be made subject to mental health guardianship and be required, at the behest of an appointed guardian, to reside in a particular place and/or engage with mental health services in the community. Moreover, community treatment orders, introduced by the Mental Health Act 2007 amendments, now mean that certain patients in England and Wales can receive treatment in the community rather than under detention in hospital (whilst remaining subject to potential hospital recall); community-based compulsory treatment powers also exist in Scotland.
These mental health statutes and common laws are in turn supplemented by subordinate or delegated legislation and statutory and non-statutory guidance in the form of statutory codes of practice and clinical guidance issued by professional bodies and organisations. Those who operate under mental health and mental incapacity laws are required ‘to have regard to’ statutory guidance in the codes of practice and any departures without good reason are likely to be unlawful.5
Underpinning these domestic legal frameworks, various international human rights treaties or conventions exist that promote and guarantee a range of human rights and freedoms of individuals against unlawful interference by the state. It is widely recognised that older people living with dementia and other mental health problems can often be denied their human rights, despite the existence of domestic legislation which affords such protections.6 We are concerned with two human rights conventions in this chapter: the European Convention on Human Rights and Fundamental Freedoms (ECHR), which is particularly important because it has direct application in UK law via the Human Rights Act 1998; and the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which requires states to adopt national policies upholding the rights of people with disabilities. The UK government ratified the CRPD in 2009, and whilst not directly enforceable in UK law, it is increasingly being used by policy makers (and the courts) to shape the future development and reform of mental health and mental capacity law in the UK.7
Compulsory civil detention under UK mental health law is only lawful when the relevant statutory criteria are satisfied and the legally defined procedures are followed and documented correctly (summarized in Table 21.2).
|UK JURISDICTION||Emergency detention||Short-term detention||Longer-term detention|
There are essential grounds, contained within the legislation, which must be satisfied in order to detain a patient. These statutory detention criteria differ between the categories of detention and the jurisdictions of the UK. Commonly they involve assessments being undertaken of the type and severity of the patient’s mental disorder, the level of risk that the patient presents, and the need for hospital detention. For longer-term detention the availability of appropriate medical treatment also becomes an important consideration.
Central to the forms of detention outlined further is the exercise of clinical opinion, which is essential to demonstrate that the statutory criteria are made out 8 and which may be presented as ‘medical recommendations’ (England, Wales and Northern Ireland) or within ‘mental health reports’ (Scotland).
The existence or likelihood of mental disorder is key to all decisions to detain. The MHA defines this term widely as ‘any disorder or disability of the mind’9 affording medical professionals considerable discretion in determining whether the particular presentation of an older person amounts to a mental disorder.
In Northern Ireland mental disorder is ‘mental illness, mental handicap, and any other disorder or disability of mind10 with individual statutory definitions for mental handicap and mental illness. In Scotland the definition is ‘mental illness; personality disorder or learning disability’.11 Dementia and depression fall squarely within all these definitions.