Introduction

There is no comprehensive Code of mental health law in England and Wales. We have no comprehensive 'Guardianship' law equivalent to Arts 414-432 of the Italian Civil Code. Such systems appear to exist in almost all legal systems, whether based on the common law or civil law tradition. It has been said that England is virtually unique amongst developed legal systems in having no comprehensive Guardianship law. Instead, English law is a piecemeal collection of statutes, some of them outdated, supplemented by various common law powers. As a result, it is complex and confusing for professionals, family members, and mentally disordered people themselves.

Many aspects of mental health law are still dealt with by 'common law' (developed by the judges on a case-by-case basis). Legislation, Acts of Parliament, has been added to this over the years. However, legislation has usually been addressed to particular problems raised in relation to particular groups of mentally disordered people, so that some issues are dealt with in detail, whereas there is a other situations, and other people, are not dealt with in a clear or comprehensive way.

There are three general points which can be made:

1) Generally English law has been better at developing ways of dealing with an incapacitated person's 'property and affairs', (financial and business affairs) rather than with their personal well-being.

2) English law contains many provisions to deal with 'troublesome'mentally disordered people. Legislation deals with mentally disordered people in the criminal justice systems or people who are detained in hospital and treated against their will. However, these legal provisions are now regarded as outdated and ineffective in some respects, and a review has been announced this year.

3) English law is less developed in relation to those who are 'vulnerable'. Mentally incapacitated people who are unable to protect themselves may be particularly vulnerable to exploitation or neglect, but these problems are less visible. In recent years, the needs of this group have been considered by the English Law Commission in a 'Mentally Incapacitated Adults' Project. In 1995, Law Commission produced draft legislation and the Government has issued a 'Green Paper', but the process of reform has been slow and controversial.

In this paper I will consider:

1) The Common Law framework – principles developed by judges

2 ) The most important legislation – Acts of Parliament

3) Problems with the current legal framework

4) Current projects to reform English mental health law.

1. Common Law
Criminal Responsibility

Under the common law:

a person was not criminally responsible for an act if he was insane at the time;

a person could not be tried for a crime if he became insane after the crime but before trial;

a person could not be executed for a capital crime if he became insane after the trial but before execution.

The rules on criminal responsibility were considered in the famous case of Daniel M'Naghten (1843) 10 Cl & F 200. M'Naghten had killed a man. He believed the man to be the British Home Secretary who he though was persecuting him. He was found 'not guilty by reason of insanity'. This led to political concern, and in response to a request by the House of Lords for clarification of the law, the Lord Chief Justice Tindal stated the 'M'Naghten rules':

'that the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.'

Many people with very serious mental illness will not pass this test. For example Kenneth McCaskill , a schizophrenic, was found "not guilty by reason of insanity" in Edinburgh this year because he thought he was the Devil when he killed his father with a kitchen knife, and then stabbed his mother. He was sent to a secure mental hospital. In another case this year, Michael Stone was tried for the murders of Lin and Megan Russell, a mother and young daughter, and the attempted murder of the another daughter. He had a history of mental illness. He was found guilty and jailed for life.

The M'Naghten rules are used by only a very small number of defendants each year. Many mentally disordered people prefer to plead guilty and go to prison rather than attempt to demonstrate their own insanity and be sent to a mental hospital. The rules were described as obsolete by a Royal Commission in 1953, but they have not been reformed. The Butler Committee on Mentally Abnormal Offenders (1975) made recommendations, but these were not implemented.

Restriction of liberty

Despite the lack of criminal responsibility, an insane person was not free to commit offences unchecked, because the common law allows a person to be detained if he is insane and 'a danger to himself or others'. The common law did not regulate the question of who should detain insane people, nor did it specify the conditions in which they were kept.

Legal incapacity in civil law

The common law approach to criminal responsibility focuses on the mentally disordered person's ability to understand. A similar approach is applied in relation to a mentally disordered person's capacity in other areas of law. For example, the capacity of a mentally disordered person: to enter into a legal contract; to make a will; to consent to, or refuse, medical treatment.

Merely because the person is diagnosed with a particular psychiatric condition, does not mean that they lack legal capacity. Nor does detention in a mental hospital in order to receive compulsory treatment for mental disorder, necessarily deprive the person of legal capacity in other areas. For a striking example, inRe C. (Adult: Refusal of Medical Treatment) [1994] 1 W.L.R. 290, the patient was serving a sentence of imprisonment and was transferred to a 'special hospital' after a diagnosis of chronic paranoid schizophrenia. His foot was gangrenous, but the patient refused consent to amputation despite advice that otherwise his chance of survival was low. He applied for an injunction to prevent amputation without his written consent. The court decided that it had not been established that his general capacity was so impaired by his illness as to render him incapable of understanding the nature, purpose and effects of the proposed treatment and so his right of self-determination had not been displaced. Contrary to medical predictions, he survived.

One of the results of this approach is that a person may have sufficient understanding to make some decisions but not others. This approach has the advantage of flexibility, but it is very difficult to provide guidance upon the level of understanding that is required for a particular decision.

The Parens Patriae Jurisdiction

Before 1959, English courts had a 'parens patriae' jurisdiction in relation to adults of unsound mind. These powers still exist for children, but it was thought that the Mental Health Act 1959 had removed the need for these powers. However, since then, gaps in the law have emerged, leading some judges to call for the revival of these powers. Such calls were made in Re F (Mental Patient: Sterilisation) [1990] 2 AC 1, a case in which the House of Lords considered the lawfulness of sterilisation of a young woman who was mentally incapacitated, and also in Airedale NHS Trust v Bland [1993] AC 789, which considered the lawfulness of ceasing life-sustaining treatment for a young man in a Persistent Vegetative State. Neither of these issues is fully covered by existing legislation, but the courts have been able to develop the common law to provide limited solutions even in the absence of a 'parens patriae' jurisdiction.

2. Legislation
History of Legislation

The common law framework provides broad principles, which can be developed on a case-by-case basis. But common law cannot provide a detailed framework, setting out in detail the rights and responsibilities of mentally disordered people, their families, and professionals involved with their care. Therefore, with the development of the practice of psychiatry, and the increasing use of mental hospitals, the need was recognised for a statutory system of regulation and inspection. Legislation also made provision for the treatment of mentally disordered people in the criminal justice.

Criminal Responsibility

Although the test of criminal responsibility is still dealt with by the common law, various legislation deals with the procedure for dealing with a person who is found 'unfit to plead' or not guilty by reason of insanity. The Trial of Lunatics Act 1883 (as amended) section 2(1) provides:

"Where in any indictment or information any act or omission is charged against any person as an offence, and it is given in evidence on the trial of such person for that offence that he was insane, so as not to be responsible, according to law, for his actions at the time when the act was done or omission made; then, if it appears to the jury before whom such person is tried that he did the act or made the omission charged, but was insane as aforesaid at the time when he did or made the same, the jury shall return a special verdict that the accused is not guilty by reason of insanity."

The legislation originally provided that a person found not guilty by reason of insanity should be detained for an unlimited period 'at Her Majesty's pleasure'. A wider range of powers is now available under the Criminal Procedure (Insanity) Act 1964, as amended by the Crime (Insanity and Unfitness to Plead) Act 1991.

In relation to murder, which carries a mandatory sentence of life imprisonment, there is a limited statutory provision for people who are mentally disordered, but are unable or unwilling to satisfy theM'Naghten test. Section 2(1) of the Homicide Act 1957 provides for a defendant to be convicted of manslaughter instead of murder "if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for . . . the killing."

Detention in Hospital

The Mental Health Act 1959 was intended to be comprehensive, dealing with mentally disordered people both in hospital and in the community, and including comprehensive Guardianship provisions. However, the law gave a great deal of power to the psychiatric profession. The movement towards giving greater protection to patient's rights, and actions brought under the European Convention of Human Rights, led to the current Mental Health Act 1983, replacing the 1959 Act. The 1983 Act is primarily concerned to clarify the circumstances in which a person may be compulsorily detained in hospital in order to receive treatment for his or her mental disorder. As a result, very little attention was given to the legal position of mentally disordered people who were not detained for compulsory treatment.

The criteria for detention in hospital under the 1983 Act are controversial. At present it is not necessary to show that the person is a danger to themselves or others, or that the person lacks the capacity to make their own decisions about the psychiatric treatment. Broadly, the current criteria depend upon a diagnosis of mental disorder, and certification that the person requires treatment for their mental disorder in hospital which they will not receive unless compulsory powers are used. In some situations detention is not permitted if the mental disorder is not 'treatable'. Mentally disordered offenders may be detained by order of a criminal court, but mentally disordered people who have not committed crimes may be detained based upon an application by an approved social worker or their nearest relative, supported by the recommendation of two doctors. A detained person can challenge their detention by applying to a Mental Health Review Tribunal. The criteria for detention and treatment are currently being reviewed by the Government. (see Appendix 1)

'Property and affairs'

There are comprehensive provisions in Part VII of the Mental Health Act 1983. There is a specialist 'Court of Protection' which administers the property of people who are unable by reason of mental disorder to manage their own affairs. The Court can appoint a 'Receiver' to act on the person's behalf. This procedure is unpopular because it is expensive, and sometimes seen as remote and bureaucratic.

Under the Enduring Powers of Attorney Act 1985, it is possible for the person themselves to choose someone to act on their behalf if they become incapacitated. Because of the common law approach to capacity, based on understanding of the particular decision, it is possible for a person to be able to understand enough to appoint someone in this way, even though they do not have sufficient understanding to manage their property and affairs.

3. Problem areas

As outlined above, the current legislation deals primarily with mentally disordered people who are so troublesome that they are involved in the criminal justice system, or they require detention in hospital to receive compulsory treatment for their mental disorder. The legislation also deals with the administration of the mentally disordered person's property and affairs, but there are a large number of other issues which arise in relation to mentally disordered people.

De facto detention of incapacitated patients

The Mental Health Act 1983 distinguishes between patients in mental hospital who are detained under the provisions of the Act, and 'informal' patients who are not detained. Some of these patients may be genuinely 'voluntary', but others are regarded as 'de facto detained'. In the Bournewood case [1998] 2 FLR 550; [1998] 3 W.L.R. 107; [1998] 3 All E.R. 289 the question arose whether it was lawful to keep a patient in hospital when he did not have the mental capacity either to consent or refuse treatment. The House of Lords decided that such a patient can be lawfully detained, based upon the common law principle of 'necessity'. This decision is controversial, because the incapacitated patient is deprived of the safeguards and support which would apply if he were formally detained.

Mentally disordered people 'in the community'

Increasingly, the old mental hospitals have been closed down, in favour of 'care in the community'. This gave rise to a number of new issues:

1) the need for a range of services to be provided to mentally disordered people and their families or carers;

2) the need for legal framework for treatment for the person's mental disorder;

3) the need for supervision of 'dangerous' people;

4) the danger of exploitation, neglect or mistreatment, homelessness, and discrimination.

The legal framework has attempted to deal with these problems, but in a piecemeal way.

Under the Mental Health Act 1984 'guardianship' is available in limited circumstances, and gave the guardian limited powers. The guardian has the power to require the patient to live in a specified place and to attend specified places for treatment, occupation, education and training. An order lasts for six months, initially renewable for a further six months and then for a year at a time. It is very rarely used Between 31 March 1992 and 31 March 1998, the number of guardianship cases, in force at the end of the year, increased from 335 to 804.

Under the NHS and Community Care Act 1990 deals with the provision of services, but did not specifically deal with the rights and responsibilities of incapacitated people and their families. The policy of closing down mental hospitals and providing services to people 'in the community', effectively left many vulnerable people to fend for themselves.

The Mental Health (Patients in the Community) Act 1995 provided a system of 'supervised discharge' for a small number of patients released from mental hospitals.

The Disability Discrimination Act 1995 prohibits discrimination against disabled people in certain circumstances, and the Act was applied to mental disorder in Goodwin v Patent Office(Employment Appeal Tribunal, 21st October 1998), Times Law Report, 11th November 1998.

This week on 8 December 1998, the Department of Health announced extra funding and a new framework for Mental Health services:

– services should be safe, to protect the public and provide effective care for those with mental illness at the time they need it;

– services should be sound, ensuring that patients and service users have access to the full range of services which they need;

– services should be supportive, working with patients and service users, their families and carers to build healthier communities.

See the document, 'Modernising Mental Health Service' (internet reference in Appendix 2).

Homicide inquiries

More than 50 people in Britain have been killed by mentally disordered people since 1993. Most recently, Jenny Morrison, a social worker was stabbed eight times and a former patient at a psychiatric hospital, has been charged with her murder. There is a danger that these inquiries lead to stigmatisation of mentally disordered, because they are assumed to be dangerous.

Paul Boateng, the Government Minister said that Care in the Community had failed for three reasons: 'it was underfunded, understaffed and lacked a clear and appropriate legislative framework to support it and in consequence it left people without the care and support that they needed.' However, he also said that 'It is clear that a return to the Victorian Asylums is neither appropriate nor desirable.'. Therefore, a new legal framework is required.

4. Proposals for reform of English law
Law Commission 'Mental Incapacitated Adults' Project

The Law Commission is a statutory body, set up to promote the reform of the law in England and Wales. It consists of five Law Commissioners, who are usually a High Court Judge, two Professors of Law, and two practising lawyers. They have a staff of lawyers and researchers. The Commission's 'Mentally Incapacitated Adults' project produced four consultation papers between 1991 and 1993 and a final Report in 1995 with draft legislation. These proposals dealt with the whole range of mentally incapacitated adults: mentally ill people, mentally handicapped people, demented elderly people, and people rendered incapacitated by physical illness or injury. The proposals dealt with issues of living arrangements, medical treatment, financial affairs, and protection from abuse and exploitation. The Government decided that further consultation was required and published a Green Paper 'Who Decides' in 1997. So far, there has been no legislation.

The Law Commission's recommendations were controversial, mainly because of the medical treatment issues, which included 'advanced refusals of medical treatment' (sometimes called 'living wills'). However, the proposals were primarily concerned with the defining the rights and responsibilities of family members and professionals dealing with a mentally incapacitated person. The Commission considered that there should be a new specialist court or tribunal, which could make decisions in the best interests of incapacitated people, or appoint someone to make decisions on their behalf. The legislation included a statutory definition of incapacity:

A person should be regarded as unable to make a decision if at the material time he or she is:

(1) unable by reason of mental disability to make a decision on the matter in question, or

(2) unable to communicate a decision on that matter because he or she is unconscious or for any other reason.

An "inability to make a decision" means "(1) and inability to understand or retain the information relevant to the decision, including information about the reasonably foreseeable consequences of deciding one way or another or of failing to make the decision, or (2) an inability to make a decision based on that information."

The term "mental disability" means "a disability or disorder of the mind or brain, whether permanent or temporary, which results in an impairment or disturbance of mental functioning".

The Law Commission also listed the factors to be taken into account by someone who is making a decision on behalf of an incapacitated person:

(1) the ascertainable past and present wishes and feelings of the person concerned and the factors which he or she would consider if able to do so;

(2) the need to permit and encourage the person concerned to participate, or to improve his or her ability to participate, in anything done for and any decision affecting him or her;

(3) if it is practicable and appropriate to consult them, the views as to that persons wishes and feelings and as to what would be in the best interests of that person of:

(i) any person named by him or her as someone to be consulted,

(ii) any person (such as a spouse, relative or friend or other person) engaged in caring for or interested in the persons welfare,

(iii) the donee of a continuing power of attorney granted by him or her,

(iv) any manager appointed by the court; and

(4) whether the purpose for which any action or decision is required can be as effectively achieved in a manner less restrictive of the persons freedom of action.

The proposals tried to balance the need for safeguards for some controversial decisions, with the need to allow carers and professionals to act without unnecessary delay or expense. The Law Commission's project was not intended to make changes to the Mental Health Act 1983, but to deal with the majority to mentally disorded people, who are not detained under the Act. More recently, the 1983 Act has itself been reconsidered.

Government Review of Mental Health Act 1983

A review of the Mental Health Act 1983 was announced by the Department of Health on 22nd September 1998. Professor Genevra Richardson was appointed by the Government to 'kick-start a root and branch review of the 1983 Mental Health Act'. According to the Government Minister who set up this review, there are three aims:

1) to protect the public and provide effective and safe care for those with severe and enduring mental illness;

2) to meet the needs of those with mental health problems who can appropriately and safely be managed within primary health and social care

3) to promote mental health in the population and help build healthier neighbourhoods.

The list of questions being considered are set out in Appendix 1.

Appendix 1

REVIEW OF THE MENTAL HEALTH ACT 1983

A. Coverage of legislation

i.Who should be included within the scope of any future mental health legislation and how should that group be defined?

a.Should it be by reference to the presence of mental disorder? If so how is mental disorder defined? Should a behavioural test be used?

b.Should it be by reference to an incapacity test together with harm to self or others?

c.Other?

ii.Should any of the following be included within the scope of the legislation and if so to what extent?

a.People with learning disabilities?

b.People suffering from a personality disorder?

c.Children?

d.Elderly people?

e.Offenders?

f.Substance abusers?

g.Prisoners?

h.The vulnerable/compliant patient who could now be subject to the Act but is dealt with on an informal basis, and/or the de facto detained?

i.Other?

iii.Should any groups currently subject to the Act be excluded?

iv.Should mental health legislation address the issues raised by Bournewood? And if so, how?

B. Ensuring quality of care

i.How can mental health legislation be used to ensure the provision of high quality care?

a.Should the legislation enshrine patients' entitlements to care (which may include assessment) and to treatment?

b.Should the legislation enshrine carers' entitlements and if so, to what?

c.Should the legislation impose obligations on professionals, providers and other statutory agencies? And if so, what obligations?

d.Should a code of practice, or provisions of one, have statutory force?

e.Should the legislation cover the registration and regulation of providers?

C. Compulsory powers

i.What is/are the justification/s for intervention despite the objections of a capable patient?

ii.What are the thresholds which must be met before compulsory powers can be used? How can those thresholds be defined by law?

iii.By whom should the necessary judgments be made? And who should have the necessary authority to order compulsion?

a.Doctors?

b.Nurses?

c.Social workers?

d.Multi-disciplinary teams?

e.An independent tribunal?

f.The courts?

g.Others?

iv.What form should compulsory powers take:

a.to detain in hospital for assessment? for medical treatment?

b.to assess in the community?

c.to ensure compliance with a care programme in the community, which may include medical treatment?

d.other, eg treatment in prison or in alternative specialised facilities?

v.How and by whom should these powers be enforced? What role should the police play?

vi.How do we ensure that a person placed under compulsion retains all remaining civil liberties?

D. Treatment

i.What should be included within compulsory treatment?

ii.What should be excluded from compulsory treatment?

E. Confidentiality and sharing information

i.how can the legislation ensure that information is shared with relevant others?

ii.how can the need to inform be balanced with the patients' right to privacy?

F. The ending of compulsion

i.What limitations should be placed on the duration of the various forms of compulsion?

ii.What mechanisms are required for the review of compulsion? What criteria should be used and how should they relate to the initial thresholds for compulsion?

iii.What powers should the reviewing bodies possess?

G. Safeguards

i.We have to consider the whole range of safeguards under the present Act, but we would be particularly grateful for your views on:

a.the role of managers under the Act

b.the role of mental health review tribunals

c.the role of second opinion doctors under Part IV of the Act

d.the role of the Mental Health Act Commission

e.the role of relatives and carers as `safeguards'.

f.the obligation to consult, record and inform.

g.Special offences.

h.Safeguards for mental health professionals.

ii.Any other safeguards, including but not limited to, advocacy, advanced directives and clinical governance.

H. The ECHR and the Human Rights Act and other anti-discriminatory legislation.

i.Any aspects of protected human rights enshrined in the Convention and the Statute which have not been covered by A – G

ii.Any mechanism for avoiding direct or indirect discrimination.