Principles of mental health law(reproduced in full in appendix A)Principles of mental health lawMental health law:principlesMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewPrinciples of mental health law:value judgmentsPrinciples of mental health law:state interventionPrinciples of mental health law:separation of powersPrinciples of mental health law:rule of lawPrinciples of mental health law:promotion of libertyPrinciples of mental health law:cumulative verificationsPrinciples of mental health law:compulsion, use ofPrinciples of mental health law:balanced legal structurePrinciples of mental health law:abuse of power, andPrinciples of mental health lawMental health law:principlesMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overview
3.234That then is the basic relationship between the MCA 2005 and the MHA 1983.
3.235As a final point, when legislating in this area it is useful to bear the following principles in mind:
1A Eldergill, ‘Is anyone safe? civil compulsion under the draft Mental Health Bill’, Journal of Mental Health Law, January 2003.1)It is unsatisfactory to seek to determine principles by reason only, without regard for human experience of the world within which principles are formulated and applied. Our value judgments are judgments about experienced objects.
2)There are many reasons to limit state intervention in people’s lives: errors in law spread their negative effects throughout the nation as opposed to individual errors that are limited in scope; the damage of erroneous laws affect citizens more than legislators, who are thus less inclined to repeal them; it takes longer to repair the damage done by legislation than the damage done by individuals by their own private choices; because of the constant watch of critics, politicians are less inclined to publicly admit error and undo the damage done; politicians are more inclined than citizens to make decisions based on political gain and prejudice, rather than principle.
2Benjamin Constant, Political writings (Biancamaria Fontana (trans and ed)), Cambridge University Press, 1988. 3)The British constitution separates powers, the aim being to keep executive powers in check and under proper scrutiny, and so to secure good government. This is necessary because the ‘whole art of government consists in the art of being honest’,
3Thomas Jefferson, Rights of British America, 1774. The writings of Thomas Jefferson, memorial edition (Lipscomb and Bergh (eds)), Washington DC, 1903–04. and ‘it is not by the consolidation, or concentration of powers, but by their distribution, that good government is effected’.
4Thomas Jefferson: Autobiography, 1821. The writings of Thomas Jefferson, memorial edition 1:122. 4)Promoting liberty, protecting individuals from harm caused by those at liberty, and those not at liberty from abuse by those who are, alleviating suffering, and restoring to health those whose health has declined, are all legitimate objectives, in that they reflect values embraced by virtually all members of our society.
5AC Eldergill, Mental health review tribunals – law and practice, Sweet & Maxwell, 1997, p45. 5)We are, however, ‘faced with choices between ends equally ultimate, and claims equally absolute, the realisation of some of which must inevitably involve the sacrifice of others’.
6Berlin, Sir I, Four essays on liberty, OUP, 1969, p168. Whether individuals ‘should be allowed certain liberties at all depends on the priority given by society to different values, and the crucial point is the criterion by which it is decided that a particular liberty should or should not be allowed, or that its exercise is in need of restraint’.
7RWM Dias, Jurisprudence, Butterworths, 5th edn, 1985, p109. 6)When enacting mental health legislation, Parliament has generally sought to erect a balanced legal structure that harmonises three things: individual liberty; bringing treatment to bear where treatment is necessary and can be beneficial; and the protection of the public.
8Hansard, HC Vol 605 col 276. Those we describe as ‘patients’ are themselves members of the public, so that the law must seek to ensure that members of the public are not unnecessarily detained, and also that they are protected from those who must necessarily be detained.
7)The use of compulsion has been permitted when significant harm is foreseeable if an individual remains at liberty. Its function is to protect the individual or others from those risks that arise when a person’s capacity to judge risks, or to control the behaviour giving rise to them, is impaired by mental disorder.
8)Other risks are, constitutionally, matters for citizens to weigh in their own minds. The purpose of compulsion is not to eliminate that element of risk in human life that is simply part of being free to act and to make choices and decisions. A person who obeys our laws is entitled to place a high premium on their liberty, even to value it more highly than their health. Subject to the stated limits, people are entitled to make what others regard as errors of judgment, and to behave in a manner which a doctor regards as not in their best interests, in the sense that it does not best promote health.
9)This desire to determine one’s own interests is common to human beings, and so not to be portrayed as an abuse of liberty. On the one hand stands liberty, a right which Parliament and the law should always favour and guard, on the other licence, a wilful use of liberty to contravene the law, which the law must of necessity always punish.
10)Any power given to one person over another is capable of being abused. No legislative body should be deluded by the integrity of their own purposes, and conclude that unlimited powers will never be abused because they themselves are not disposed to abuse them.
9Thomas Jefferson: Notes on Virginia Q.XIII, 1782. Memorial edition, 2:164. Mankind soon learns to make interested uses of every right and power which they possess or may assume.
10Thomas Jefferson: Notes on Virginia Q.XIII, 1782. Memorial edition, 2:164. 11)This risk of abuse is multiplied if the individual is not free to escape abuse, is incapacitated or otherwise vulnerable, or their word is not given the same weight as that of others. Children and adults with mental health problems are particularly at risk and the law has usually afforded them special protection.
12)This protection involves imposing legal duties on those with power, conferring legal rights on those in their power, and independent scrutiny of how these powers and duties are exercised. The effectiveness of such schemes depends on whether, and to what extent, they are observed.
13)This is a matter of constitutional importance, for the observance of legal rights and the rule of law are the cornerstones of all liberal democracies. The rule of law ‘implies the subordination of all authorities, legislative, executive [and] judicial … to certain principles which would generally be accepted as characteristic of law, such as the ideas of the fundamental principles of justice, moral principles, fairness and due process. It implies respect for the supreme value and dignity of the individual.’
11David M Walker, The Oxford companion to law, Clarendon Press, 1980, p1093. 14)In any legal system, ‘it implies limitations on legislative power, safeguards against abuse of executive power, adequate and equal opportunities of access to legal advice and assistance, … proper protection of the individual and group rights and liberties, and equality before the law … It means more than that the government maintains and enforces law and order, but that the government is, itself, subject to rules of law and cannot itself disregard the law or remake it to suit itself’.
12David M Walker, The Oxford companion to law, p1093. 15)In framing these principles and laws, Parliament has sought to be just, justice being ‘a firm and continuous desire to render to everyone that which is his due’.
13Justinian, Inst, 1, 1. 16)When new laws are necessary, they should impose minimum powers, duties and rights; provide mechanisms for enforcing duties and remedies for abuse of powers; be unambiguous, just, in plain English, and as short as possible.
17)Because there is a long record of experimentation in human conduct, cumulative verifications give these principles a well-earned prestige. Lightly to disregard them is the height of foolishness.
14J Dewey, Human nature and conduct, Allen & Unwin, 1922.