This chapter examines the powers of criminal courts to make a mental health-based disposal rather than relying on the options available within the criminal justice and penal system when faced with a mentally disordered person accused or convicted of a crime. It considers the practical shape of diversion policy, in terms of a series of decisions made by criminal courts, at the various stages of the criminal process, as to whether an accused or convicted person should remain within the criminal justice system or instead be diverted into the mental health system.
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8. Mental Disorder and Criminal Justice
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14. Mental Health and Human Rights
G. T. Laurie, S. H. E. Harmon, and E. S. Dove
This chapter discusses ethical and legal aspects of mental health and its management. It covers the evolution of mental health law, paternalism and capacity, and the treatment framework, which includes standards for informal treatment and compulsory treatment, and safeguards of liberty. It also addresses a range of issues from the human rights perspective, and mental disorders and criminality, as well as civil liability.
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4. The Mental Capacity Act 2005
This chapter begins with an overview of the Mental Capacity Act 2005 (MCA 2005) followed by a discussion of the principles of the MCA 2005. It then explains the meaning of incapacity and best interests as defined in the MCA 2005,s and considers the provisions for advance decisions regarding treatment.
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10. Control in the Community
This chapter examines the extent, scope, and current usage of the various powers by which some degree of compulsion can be imposed on a patient to accept services in the community. It discusses leave and recall; guardianship; community treatment orders; and after-care under s. 117 of the Mental Health Act 1983.
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11. Ending Compulsion under the Mental Health Act 1983
This chapter examines the various ways in which a period of compulsion, whether in hospital or in the community, imposed under the terms of the Mental Health Act (MHA) 1983, can be brought to an end. The discussions cover the discharge of Part II patients from hospital, guardianship, or a community treatment order; discharge of Part III patients; mental health review tribunals; substantive powers of discharge; tribunal and decisions; and challenging tribunal decisions.
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3. Community Care
This chapter examines the delivery of community care services. It discusses services for mentally disordered persons; the entitlement, nature, and scope of the duties owed under the National Health Service and Community Care Act (NHSCCA 1990); alternative mechanisms for securing services; and the use of personal budgets and direct payments. The chapter argues that most of the time, local social service authorities and National Health Service bodies do cooperate reasonably well in the delivery of community care services, particularly for service users with learning disabilities. The draft the Care and Support Bill holds the potential to radically simplify the legal framework in which community care services are delivered, making the system more transparent and intelligible to both users and professionals. The increased use of personal budgets and direct payments could empower service users in a way that has not been possible in the past.
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1. Conceptualising Mental Health Law
This chapter begins with brief descriptions of the Mental Health Act 1983 (MHA) and the Mental Capacity Act 2005 (MCA), and then discusses who the insane; the complex relationship between mental illness and medicine; the statutory definition of mental disorder and the scope of the MHA; mental health care; and sources of mental health law.
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9. Medical Treatment
This chapter examines treatment for mental disorder, and in particular treatment without consent. The discussions cover treatment outside the scope of the Mental Health Act 1983; statutory provisions for compulsory treatment of detained patients for mental disorder; involuntary treatment of detained patients for mental disorder; and the UN Convention on the Rights of Persons with Disabilities.
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6. Civil Detention under the Mental Health Act 1983
This chapter examines detention under the Mental Health Act 1983 of people who have not become involved with the criminal system. It shows that traditional justifications for detention have focused on dangerousness to self or others and the need for care and treatment. In recent years a new model has emerged, advocating the combination of mental capacity law and mental health law; and the new United Nations Convention on the Rights of Persons with Disabilities also raises a whole new set of questions about compulsion and detention.
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7. Policing Mental Disorder
This chapter examines the role of the police, both as agents of the criminal justice system and as agents of the mental health system. It discusses the policy of diversion; police encounters with mentally disordered persons; the diversion of mentally disordered criminal suspects into an investigative regime with greater safeguards than are ordinarily implemented; and the meaning of ‘absent without leave’.
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12. Legal Responses and Advocacy for Clients
This chapter examines whether the law provides adequate mechanisms for those brought under the mental health system to ensure that they are dealt with consistently with the substantive and procedural rules provided by the law, and whether sufficient recompense is available in the event that the standards are not complied with. The discussions cover review tribunals; judicial review; civil and criminal actions; the Mental Health Act (MHA) 1983 and the Deprivation of Liberty Safeguards; criminal prosecutions; civil actions for damages; complaint processes; the appointment of advocates to help people governed by the MHA 1983 and the Mental Capacity Act 2005; and representing people with mental disabilities.
