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Mental Health and Incapacity Law

Mental health and mental capacity laws are designed to ensure that people are taken care of—and not taken advantage of—if circumstances prevent them from taking care of themselves.


Mental Health Act 1983


This act regulates how people are treated when they are mentally unwell and unable to act in their own best interests. Specifically, the Mental Health Act 1983 regulates a process called sectioning, where someone with a mental disorder is detained in hospital and treated for their illness, against their own wishes. Note that the act doesn’t define what a mental disorder is—it’s left up to the discretion of health professionals to decide if someone needs to be sectioned.


Under this act, a person can be detained in a hospital or psychiatric facility against their wishes if medical professionals think their mental health puts them or other people at risk. Once the person is in hospital, they can be given psychiatric treatment even if they don’t want it.


In order for someone to be detained against their will, three people must agree that it’s the best thing for that person. Typically the three people include an approved mental health professional such as a psychologist or social worker, a doctor with special training in mental disorders, and any other doctor. In rare cases, a relative may can sometimes request that someone be detained.


Once someone is detained they must be discharged once their mental health improves such that they don’t meet the Mental Health act criteria any more. Depending on the circumstances of the section, some people are discharged with supervised community treatment, meaning they have ongoing treatment to make sure they stay well.


When someone is detained under the Mental Health Act 1983 act they have the right to appeal to a tribunal, and to seek help from an independent advocate such as a solicitor.


The Mental Capacity Act 2005


The term “mental capacity” refers to the ability to make independent decisions. The Mental Capacity Act 2005 is intended to protect the rights of people who lose their mental capacity, or who have diminished mental capacity. For instance, this may include someone with dementia, a person with a brain injury, or someone who has a severe learning disability.


Lack of mental capacity refers to someone who has lost one or more of the following abilities:

  • The ability to understand what they read or what they hear

  • The ability to remember things

  • The ability to consider information in order to make a decision

  • The ability to communicate a decision to someone else


Note that mental capacity and being mentally ill or unwell aren’t the same thing. Someone with a mental illness typically retains mental capacity. Similarly, when people lose mental capacity it’s not necessarily because of a mental illness.


When someone lacks the mental capacity to make their own decisions, it’s important that their rights and independence are protected. The Mental Capacity Act ensures that people are supported in making decisions they need help with, and that no undue restrictions are placed on their independence.


Lasting Power of Attorney


Lasting Power of Attorney (LPA) is a legal authority granted by one person to one or more others. If you grant someone LPA, it means you give them the legal authority to make decisions about your health and welfare, or about your financial affairs and property, or both. For instance, if someone is diagnosed with a disease such as Alzheimer’s, they might give a family member or solicitor LPA as a means of preparing for the future.


Healthcare and financial LPA works slightly differently. With financial LPA it can come into effect while you still have the mental capacity to make your own financial decisions. With the healthcare LPA, it only comes into effect if you lose mental capacity in the future. With both kinds of LPA, the documents to set up the LPA must be completed awhile you still have full mental capacity. They must be signed by several people, including you, witnesses, and your attorney. Once completed, the documents must be registered with the Office of the Public Guardian. After this is done, financial LPA can be conferred at a time of your choosing, and healthcare LPA if you should lose mental capacity in the future.

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