Are mental health and capacity laws at risk of being 'toxic'?

In the wake of the Britney Spears conservatorship hearing, Law Society policy adviser Leanne Maskell looks at mental capacity law and the rule of law here in the UK.

A white woman with blonde hair looking out of a window.

Since being placed in psychiatric care in 2008, Britney Spears has been subject to American ‘conservatorship’ court orders, allowing other people to make decisions about her day-to-day life.

There has been a great deal of interest in this case over recent months, as Britney has recently appeared in court, stating her belief that the arrangement is abusive.

In England and Wales, the laws which safeguard people in vulnerable circumstances are very different. They are primarily there to empower the person, and to ensure they are supported to make as many decisions for themselves as possible.

Nevertheless, it’s important that the laws in this area are as up to date and effective as possible. As many solicitors know, this is currently not the case.

Fortunately, the government is at last responding to these concerns by undertaking once-in-a-generation legal reforms in mental health and capacity – and the Law Society will be lobbying to make sure that these changes work for our members and the people in vulnerable situations that they support.

Mental capacity law

The Mental Capacity Act 2005 (MCA) covers situations where an individual loses their capacity to make decisions.

Crucially, mental capacity is decision specific, and so a person may be found to have capacity to make certain decisions, but not others.

There is no provision under English or Welsh law that automatically removes the ability of a person to make any of their own life choices.

Whilst the MCA has been in place since 2007, it's not always properly understood.

This is not helped by the fact that the code of practice to the act is out of date – a consultation is to happen shortly on a draft update to the code, and we urge everybody to respond to it to ensure that it gives the best possible guidance in these sometimes complex areas. 

Mental health law

In England and Wales, any compulsory detention in hospital must be sanctioned under the Mental Health Act 1983 (MHA).

If the criteria are met, then detention can occur irrespective of the person’s capacity to understand or consent. Such detention would only ever happen in response to a risk to the person’s health or safety, or if necessary to protect others.

Solicitors provide an important source of support for people subject to the MHA, and non means tested legal advice and representation is often available. But again, our mental health legislation is outdated and under review.

At 38 years old, the MHA is out of line with modern thinking in many ways. The approach to best responding to those in mental health crisis feels outdated.

For example, if a person is sectioned under the act, their ‘nearest relative’ – as set out in a strict hierarchy – is given certain legal powers over the person’s treatment and detainment, even if they have a difficult relationship or are not close.

The process for a patient to change this can be extremely complicated and expensive, requiring a court application.

We recently made over 100 recommendations in response to the government’s white paper on reforming the MHA, published following the independent review in 2018.

The rule of law 

The rule of law, access to justice, and strong legal safeguards are fundamental to ensuring that toxic and controlling situations do not arise for a person in vulnerable circumstances.

Solicitors have a vital role in ensuring that their clients are protected against any misuse of power and their human rights are upheld.

The Solicitors Regulation Authority imposes significant regulatory obligations on solicitors in England and Wales relating to their clients’ mental capacity and vulnerabilities.

We also provide extensive guidance on meeting the needs of vulnerable clients and mental capacity.

As the forthcoming reforms take shape, it’s vital that the voice of legal professionals is heard.

The solicitors representing a person such as Britney work hard to ensure she is empowered, and supported, to make as many decisions for herself as possible. This should, after all, be her 'prerogative'.

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