Mental health law and compulsory treatment

There are two laws in England and Wales that are relevant to the treatment of people with mental health problems.

They are the Mental Health Act 1983 and the Mental Capacity Act 2005. They were both amended by the Mental Health Act 2007.

The Mental Health Act is the law that allows people with a ‘mental disorder’ to be admitted and treated in hospital without their consent – either for their own health and safety, or for the protection of other people.

The Mental Capacity Act gives a legal way of making a wide range of decisions on behalf of someone aged over 16 when they are unable to make a decision for themselves because they ‘lack capacity’. The law defines what ‘lacking capacity’ is and says what checks must be made to prove someone is lacking capacity at any one time.

People with psychosis may sometimes ‘lack capacity’ – at times they may be unable to understand the nature of their illness or the purpose of proposed treatment, or they may be unable to use or weight information to come to a decision about whether to accept treatment or not.

The Mental Capacity Act can be used to give treatment to somebody without their consent if it is proven that an individual lacks capacity at a particular time, and that the treatment is in their ‘best interests’. Treatment cannot be given under this law to protect other people.

If it is in the best interests of a person to be detained in hospital, then mental health professionals have to follow the rules of the Deprivation of Liberty Safeguards. These are part of the law and involve six assessments of an individual.

In some cases, professionals will have to decide whether to use the Deprivation of Liberty Safeguards under the Mental Capacity Act or to use the Mental Health Act to detain people in hospital and give them treatment. However, treatment cannot be given to a person with a ‘mental disorder’ under the Mental Capacity Act if they ‘object’ to the treatment, if they have made an ‘Advance Decision’ that refuses treatment, or if they have previously appointed someone as an ‘attorney’ to make decisions for them, and that attorney refuses treatment.

The Mental Health Act allows people to be given treatment for a ‘mental disorder’ regardless of whether they have the capacity to consent.

There are Codes of Practice for the Mental Health Act, the Mental Capacity Act and the Deprivation of Liberty Safeguards that mental health professionals have to follow. These Codes of Practice give guidance on ‘good practice’ how to act within the law.