Introduction

Before attempting to assess the shape and effectiveness of the current law relating to mental health, attention has to be given to the purpose and impact of regulation by law. In modern society, with increasing concern for individual ‘rights’, it is inevitable that the treatment of the mentally ill should be more closely regulated by law. It is nowadays unfashionable to believe that good sense and benevolence are alone satisfactory safeguards where society attempts to aid disadvantaged sectors of the community. Many feel that ‘caring’ has dangers that arise from inbuilt conservatism and smugness. With hindsight it has become clear that each generation has either unquestioningly embraced some terrible procedures or has espoused reforms in the name of treatment or social policy that have later been seen to be serious mistakes (see Scull, 1989). The inadequacies of the professions and their frequent inability to react quickly to criticism and to review with open minds their own practices are equally clear. One of the current solutions to these failures is the belief, now prevalent, that much of the former bad practice can be eliminated and future mistakes avoided by ‘the law’. Reliance is placed upon legal rules such as the Mental Health Act 1983 and formal avenues of challenge such as the mental health review tribunals. These provide a now well understood system but one that is not without some lack of clarity.

It must be said at once that it is very naive indeed to believe that ‘the law’, despite its majesty, does not inevitably have its own weaknesses and creates, in turn, its own problems. Its role is in need of similar, if not greater, scrutiny to ensure that its own methods of providing safeguards do not suffer from the same atrophy or lack of self awareness and thus fail to be sensible and effective. Above all, legal regulation must not be mistaken for the system itself, when it is merely the safeguard. ‘Regulation by law’ is both a concrete description of a body of rules enshrined in statute and case law and an indication that a particular area of activity is governed and regulated in a special way.