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  • Print publication year: 2020
  • Online publication date: September 2020

Chapter 21 - Mental Health Laws from All UK Jurisdictions

from Section 4 - Law, Ethics, and Philosophy


Mental health law in the UK operates within three legal jurisdictions: England and Wales, Scotland and Northern Ireland. Each jurisdiction has its own distinct laws governing the care and treatment of adults with mental disorder. Although these laws have broadly similar functions, they can be markedly different in substance and practice. This chapter provides an overview of the legal framework that governs the treatment and care of older adults with mental disorder and mental disability in the UK. It then describes the formal civil powers that exist in law to compulsorily detain and treat older people in hospital for mental disorder, and how these laws compare across the different jurisdictions of the UK.

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1.Joint Commissioning Panel for Mental Health. Guidance for Commissioners of Older People’s Mental Health Services. London: JCPMH, 2017; SCIE: Assessing the Mental Health Needs of Older People: mental health legislation, 2003. // (Accessed 19 March 2019).
2.Such as informal admission or via the Mental Capacity Act and Deprivation of Liberty Safeguards soon to be Liberty Protection Safeguards under the Mental Capacity (Amendment) Bill: // (Accessed 19 March 2019).
3.CQC. Mental Health Act: The rise in the use of the MHA to detain people in England. January 2018, p. 19. (Accessed 19 March 2019).
4.Centre for Policy on Ageing. Rapid review: diversity in older age: older offenders. 2016. (Accessed March 19, 2019).
5.R (Munjaz) v. Ashworth Hospital Authority [2005] UKHL 58.
6.Williamson, T. Dementia, Rights, and the Social Model of Disability: A New Direction for Policy and Practice? London: Mental Health Foundation, 2015; BIHR. Mental Health Advocacy and Human Rights: Your Guide. London: British Institute of Human Rights, 2015; Mandelstam M. How We Treat the Sick: Neglect and Abuse in Our Health System. London and Philadelphia: Jessica Kingsley Publishers, 2011, pp. 229300.
7.Modernising the Mental Health Act: Final report from the independent review. 6 December 2018. (Accessed 19 March 2019); Scottish Government. Review of the Mental Health Act: Future direction of mental health and mental incapacity legislation. March 2019. (accessed March 2019).
8.With the exception of the MHA, holding power who can be exercised by a non-medical AC.
9.MHA s1(2).
10.NI Order s3(1).
11.MHCTA s328.
12.For short-term or longer-term detention.
13.In these jurisdictions, the patient’s nearest relative also has the power to make an application but this is rarely exercised.
14.On admission the patient must be examined immediately by another doctor whose report must support detention.
15.A medical practitioner certified as having ‘special experience’ in the diagnosis and treatment of mental disorder (MHCTA s22).
16.‘Extendable’ in Scotland.
17.Separate legal criteria must be satisfied and procedural requirements followed to lawfully renew/extend detention.
18.Each prepared by an AMP or by one AMP and the patient’s general practitioner.
19.Department of Health. MHA 1983: Code of Practice. 2015. TSO. para 36.3.
20.Zigmond, T. Mental health law across the UK. BJPsych Bulletin 2017; 41(6): 305307.
21.Szmukler, G, Daw, R, Callard, F. Mental health law and the UN Convention on the Rights of Persons with Disabilities. International Journal of Law and Psychiatry 2014; 37(3): 245252.
22.Reid v. Secretary of State for Scotland [1999] AC 512.
23.ECHR, Articles 5(4) & 6.
24.MHA s72; s75 lists Tribunal powers exercisable in England and Wales.
25.In England: Tribunal Procedure (First-tier tribunal) (Health, Education and Social care Chamber) Rules 2008; in Scotland: First-tier Tribunal for Scotland Mental Health Chamber Rules of Procedure 2018 (in draft); Wales: Mental Health Review Tribunal for Wales Rules 2008; in Ireland: The Mental Health Review Tribunal (Northern Ireland) Rules 1986.
26.‘General’ member in Scotland.
27.These are lay people.
28.Modernising the Mental Health Act: Final report from the independent review. 6 December 2018. (Accessed 19 March 2019) recommends abolishing Managers’ powers of discharge at p151.
29.Mental Health (Care and Treatment) (Scotland) Act 2003, section 81.
30.Department of Health, ‘Terms of Reference – Independent Review of the Mental Health Act 191983’ (policy paper, 4 October 2017). (Accessed 21 July 2019)
31.Modernising the Mental Health Act 1983: Final report from the Independent Review. 6 December 2018. (Accessed 19 March 2019)
32.See the Royal College of Psychiatrists’ summary of the recommendations in the Final Report at (Accessed 21 July 2019)
33.Modernising the Mental Health Act 1983: Final Report at page 17
34.Scottish Government. Review of the Mental Health Act: future direction of mental health and mental capacity legislation (news, 19 March 2019). (Accessed 21 July 2019)