AuthorMichael Butler

Chapter 1



This book aims to provide an introduction to mental health law in England and Wales. Intended for use by lawyers and other mental health professionals alike, it is hoped that it is a useful source of information for those starting out in this area of law, and for those who specialise in other areas and require a working knowledge of the subject.

No one is discouraged from sitting down and reading the book from cover to cover, but the more realistic expectation is that it is used as and when required for a summary of a particular aspect of the law. The subject matter is divided up in an easily identifiable and logical way in order to render the law understandable, and considerable effort has been made to keep things as simple as possible and to clarify the key principles.

The book takes as its focus two particular pieces of legislation, the Mental Health Act 1983 (MHA 1983) and the Mental Capacity Act 2005 (MCA 2005). It looks at each Act separately, but also considers the ways in which the two Acts interact, and the impact that each has on the operation of the other.

The MHA 1983 is the principal source of mental health law in England and Wales, and is therefore the subject matter of the major part of the book. The Act’s concern is mental disorder, and, in particular, the risks that an individual may cause to himself or others as a result of his mental disorder. The Act exists to manage these risks. It provides a comprehensive system for authorising and regulating compulsory detention and treatment in hospital, and for managing mental disorder in the community. The system is considered in detail in Chapters 2–21.

The MCA 2005 is quite different. It is concerned with mental capacity, not mental disorder. Moreover, its purpose is not to manage risk, but to regulate all

2 A Practitioner’s Guide to Mental Health Law

aspects of decision-making on behalf of those who lack capacity. This may cover decisions concerning medical treatment, but also any other matter affecting a person’s welfare or finances. In regulating decision-making, the Act aims to preserve the personal autonomy of the individual concerned as much as possible and to ensure that all decisions taken on his behalf are in his best interests. Chapter 22 provides an overview of the Act and considers, among other things, the role of the Court of Protection, the specialist court which oversees decision-making in this rapidly developing area of law. Chapter 23 then considers the Deprivation of Liberty Safeguards (DOLS) provisions contained in Schedule A1, which supply an alternative statutory framework to the MHA 1983 for the compulsory admission to hospital or care homes of patients who lack capacity. This new framework is, most would agree, one of the most significant...

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