Changes in mental health law
| Pages | 4-10 |
| DOI | https://doi.org/10.1108/17556228200800024 |
| Published date | 11 December 2008 |
| Date | 11 December 2008 |
| Author | Robert Brown |
| Subject Matter | Health & social care |
4
Changes in mental health law
Abstract
Major changes are taking place in the law for those
working in the mental health field. This article looks
at the impact of the Mental Capacity Act (2005)
(most of which was implemented in October 2007)
and the Mental Health Act (2007) (the main
provisions of which came into effect in October
2008). Key elements of each of these two acts will
be covered. The ‘Bournewood Safeguards’ inserted
into the Mental Capacity Act (2005) by the Mental
Health Act (2007) will also be described.
Key words
Courtof Protection; Public Guardian, independent
mental capacity advocate (IMCA)
The Mental Capacity Act (2005) has developed from a
number of important common law principles (Ashton et
al,2005). It now provides us with a statutoryframework
for decision-making for those over the age of 16 who are
incapable of making certain decisions for themselves (see
Harbour, 2008, for advice on children under 16). The act
sets out the procedures that should be followed in making
any decisions on someone’s behalf. It covers a broad range
of issues including personal welfare decisions, medical
and health care decisions, and financial decisions.
The five principles
Brown and Barber (2008) note that in stark contrast with
the Mental Health Act (1983) (which starts with a
definition of mental disorder) the Mental Capacity Act
(2005) begins by establishing five key principles to be
followed whenever working within the framework of the
act. These are:
(1) A person must be assumed to have capacity unless it
is established that they lack capacity.
(2) Aperson is not to be treated as unable to make a
decision unless all practicable steps to help them to
do so have been taken without success.
(3) A person is not to be treated as unable to make a
decision merely because they make an unwise
decision.
(4) An act done, or decision made, under this act for or
on behalf of a person who lacks capacity must be
done, or made, in their best interests.
(5) Before the act is done, or the decision is made,
regard must be had to whether the purpose for
which it is needed can be as effectively achieved in a
way that is less restrictive of the person’s rights and
freedom of action.
Adefinition of mental incapacity
Section 2 of the act states that for the purposes of the act,
‘A person lacks capacity in relation to a matter if at
the material time he is unable to make a decision for
himself in relation to the matter because of an
impairment of, or a disturbance in the functioning of,
the mind or brain’.
This is referred to as the ‘diagnostic test’. It is a broad
definition, which might seem to include many people but
it is limited by the ‘functional test’ (ie. you only apply the
diagnostic test when a specific decision needs to be made).
Section 3 of the act contains the test that should be used
for such a decision. It is a development of tests that had
been established in case law such as in the case of C (adult:
refusal of medical treatment) 1994. The new test is that,
‘a person is unable to make a decision for himself if he
is unable to
(a) understand the information relevant to the decision
(b) retain that information
(c) use or weigh that information as part of the process
of making the decision
(d) communicate his decision (whether by talking,
using sign language or any other means)’.
An inability to meet any one of these four conditions
would mean the person was incapable of making the
Robert Brown
Independent Trainer and Mental Health Act Commissioner
The Journal of Mental Health Training, Education and Practice Volume 3 Issue 4 December 2008 © Pavilion Journals (Brighton) Ltd
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