Mental Health Law and Compulsory Treatment

Mental health care


  1. The Mental Health Act
  2. The Mental Capacity Act
  3. Decisions about treatment and care
  4. Deprivation of liberty safeguards procedure
  5. Mental Capacity Act advance decisions
  6. Reviewing the Mental Capacity Act
  7. Codes of Practice
  8. Independent mental capacity advocates and independent mental health advocates

The Mental Health Act

When people are treated in a mental health facility or hospital they have usually volunteered or agreed to be there. There are cases when individuals can be sectioned under the Mental Health Act and treated without their consent. People who are detained in this way because they need urgent treatment because they are at risk of harming others or themselves.

A person is sectioned until a doctor decides otherwise. Families and carers can visit their relatives but sometimes if a patient refuses visitors, their wishes will be respected.

The Mental Capacity Act

The MCA (Mental Capacity Act) was written to empower and protect those people who lack the ability to make a decision about their own treatment and care. The MCA applies to those over 16.

The MCA covers day-to-day decisions like choosing clothing, food purchases or serious decisions like moving into care homes or having major operations.

People covered by the Mental Capacity Act include those with severe learning disabilities, dementia, brain injuries, a mental health illness or a stroke. It could even apply to people who are unconscious because they have had an anaesthetic or an accident.

The act assumes someone has the capacity to make their own decisions unless they have been proven otherwise.

There are two stages to the capacity assessment. Firstly, the patient is assessed on whether or not they have a mind or brain impairment due to illness or external factors like drug use. Secondly, the patient is assessed on whether or not they are able to make specific decisions. Some may be able to make some decisions but not others. A person can’t make a decision if they are unable to understand relevant information about the decision, retain information about the decision, use the information to make a decision.

Decisions about treatment and care

People who are detained under the Mental Health Act then the health professionals looking after the person will make decisions about their treatment and care. This means that even if you have the mental capacity to not agree with your treatment, you won’t be able to make decisions about it.

The Mental Capacity Act can be used to give a person treatment for a physical health problem that has nothing to do with a mental health problem. Health professionals have to stick to a “best interests checklist”, which is designed to protect individuals when decisions are made for them.

Deprivation of liberty safeguards procedure

The DoLS (Deprivation of Liberty Safeguards) form part of the MCA. They exist so that people in hospitals and care homes are looked after so that their freedom is not inappropriately restricted. In short, the DoLS make sure that arrangements are always in the best interests of the person, that they have a representative, that they can appeal and that there are reviews.

Mental Capacity Act advance decisions

An advance decision applies to future treatment. It is a set of instructions about healthcare and medical treatment that you request to resfuse in the future should you lose the capacity to make decisions. You could, for example, say that you do not want to be resuscitated if you happen to acquire specific medical problems in the future. You can make advance decisions if you are over 18 and have the capacity to make them now.

Advance decisions are legally binding and therefore must be followed, though, in an emergency situation you might be treated if your advance decision is not clear with regards to a particular treatment.

Reviewing the Mental Capacity Act

Back in late 2017, Theresa May, then Prime Minister, announced that there would be an independent review of the Mental Health Act in order to address the rising number of detentions and racial disparity in the Act’s use as well as concerns regarding dignity and human rights. The chair of the Review was Professor Sir Simon Wessely. Vice Chairs included Steven Gilbert, a trustee at Mind with experience of the Act.

An initial response showed that the Government will be introducing legislation that will allow individuals to nominate a chosen person who will be involved in decision making. There will also be statutory ‘advance choice’ documents.

Codes of Practice

The Codes of Practice provided guidance to professionals, patients, families and carers with regards to their rights. The revised code has been effective since the 1st of April 2015 and was prepared in accordance with the Mental Health Act Section 118.

The Code of Practice informs people what they have to do – it helps patients to receive the right support, care and treatment when they are treated under the Mental Health Act.

Independent mental capacity advocates and independent mental health advocates

The Mental Capacity Act 2005 first introduced the IMCA (independent mental capacity advocate) role.

Independent mental capacity advocates are a form of safeguarding to help those who don’t have the capacity to make certain decisions. For example, decisions about their living arrangements or medical treatment. Usually, the IMCA will be instructed when there is no patient representative like a family member or a friend.

An IMCA will meet the patient in private (where possible), examine records, gather the opinions of professionals and evaluate all of the information. They will also try to work out what the person might wish or feel if they were in a position where they were able to make the decision themselves. They will produce a report and will be able to resolve concerns or challenge decisions.

IMCAs are usually arranged for over 16s when there needs to be a decision about serious medical treatment or a long-term accommodation change. They will only be appointed when the individual in question cannot make the decision themselves and there is no independent person like a friend or family member deemed appropriate to consult.

IMCAs might also be provided to those who need help with decisions regarding Care Reviews and Adult Protection. In cases of Adult Protection, an IMCA might be instructed despite family members being available for consultation.