Mental health law
Encyclopedia
Mental health law is the area of the law that applies to persons with a diagnosis or possible diagnosis of mental illness, and to those involved in managing or treating such people.
or psychosis
, and developmental disabilities, where a person does not possess the ability to act in a legally competent manner and requires treatment and/or another person to act in his or her best interests. The laws generally cover the requirements and procedures for involuntary commitment
and compulsory treatment in a psychiatric hospital or other facility.
In some jurisdiction
s, court orders are required for compulsory treatment; in others, psychiatrists may treat compulsorily by following set procedures, usually with means of appeal or regular scrutiny to ensure compliance with the law.
Mental health law has received little attention in scholarly legal forums. The University of Memphis Cecil C. Humphreys School of Law
in 2011 announced the formation of a student-edited law journal entitled "Mental Health Law & Policy Journal."
and criminal
common
and statutory law
.
Common law is based on long-standing English legal principles, as interpreted through case law
. Mental health-related legal concepts include mens rea
, insanity defence
s; legal definitions of "sane," "insane," and "incompetent
;" informed consent
; and automatism
, amongst many others.
Statutory law usually takes the form of a mental health statute. An example is the Mental Health Act 1983
in England and Wales. These acts codify aspects of the treatment of mental illness and provides rules and procedures to be followed and penalties for breaches.
Mental health law in general
Mental health legislation is largely used in the management of psychiatric disorders, such as dementiaDementia
Dementia is a serious loss of cognitive ability in a previously unimpaired person, beyond what might be expected from normal aging...
or psychosis
Psychosis
Psychosis means abnormal condition of the mind, and is a generic psychiatric term for a mental state often described as involving a "loss of contact with reality"...
, and developmental disabilities, where a person does not possess the ability to act in a legally competent manner and requires treatment and/or another person to act in his or her best interests. The laws generally cover the requirements and procedures for involuntary commitment
Involuntary commitment
Involuntary commitment or civil commitment is a legal process through which an individual with symptoms of severe mental illness is court-ordered into treatment in a hospital or in the community ....
and compulsory treatment in a psychiatric hospital or other facility.
In some jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
s, court orders are required for compulsory treatment; in others, psychiatrists may treat compulsorily by following set procedures, usually with means of appeal or regular scrutiny to ensure compliance with the law.
Mental health law has received little attention in scholarly legal forums. The University of Memphis Cecil C. Humphreys School of Law
Cecil C. Humphreys School of Law
The University of Memphis Cecil C. Humphreys School of Law is an American Bar Association accredited law school and is the only law school in Memphis, Tennessee. The school has been associated with the University of Memphis since the law school's formation in 1962. The school was named in honor of...
in 2011 announced the formation of a student-edited law journal entitled "Mental Health Law & Policy Journal."
In common law jurisdictions
Mental health law includes areas of both civilCivil law
Civil law may refer to:* Civil law , a branch of continental law which is the general part of private law* Civil law , a branch of common law dealing with relations between individuals or organizations...
and criminal
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
common
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
and statutory law
Statutory law
Statutory law or statute law is written law set down by a legislature or by a legislator .Statutes may originate with national, state legislatures or local municipalities...
.
Common law is based on long-standing English legal principles, as interpreted through case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
. Mental health-related legal concepts include mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
, insanity defence
Insanity defence
In criminal trials, the insanity defense is where the defendant claims that he or she was not responsible for his or her actions due to mental health problems . The exemption of the insane from full criminal punishment dates back to at least the Code of Hammurabi. There are different views of the...
s; legal definitions of "sane," "insane," and "incompetent
Competence (law)
In American law, competence concerns the mental capacity of an individual to participate in legal proceedings. Defendants that do not possess sufficient "competence" are usually excluded from criminal prosecution, while witnesses found not to possess requisite competence cannot testify...
;" informed consent
Informed consent
Informed consent is a phrase often used in law to indicate that the consent a person gives meets certain minimum standards. As a literal matter, in the absence of fraud, it is redundant. An informed consent can be said to have been given based upon a clear appreciation and understanding of the...
; and automatism
Automatism
Automatism may refer to:*Automatic behavior, spontaneous verbal or motor behavior; an act performed unconsciously. Defendants have been found not guilty due to an automatism defense ....
, amongst many others.
Statutory law usually takes the form of a mental health statute. An example is the Mental Health Act 1983
Mental Health Act 1983
The Mental Health Act 1983 is an Act of the Parliament of the United Kingdom which applies to people in England and Wales. It covers the reception, care and treatment of mentally disordered persons, the management of their property and other related matters...
in England and Wales. These acts codify aspects of the treatment of mental illness and provides rules and procedures to be followed and penalties for breaches.
Around the world
Not all countries have mental health acts. The World Health Report (2001) lists the following percentages, by region, for countries with and without mental health legislation.| Regions | With legislation | No legislation |
|---|---|---|
| Africa | 59% | 41% |
| The Americas | 73% | 27% |
| Eastern Mediterranean | 59% | 41% |
| Europe | 96% | 4% |
| South-East Asia | 67% | 33% |
| Western Pacific | 72% | 28% |
See also
- Basaglia LawBasaglia LawBasaglia Law is the Italian Mental Health Act of 1978 which signified a large reform of the psychiatric system in Italy, contained directives for the closing down of all psychiatric hospitals and led to their gradual replacement with a whole range of community-based services, including settings...
- Bazelon Center for Mental Health LawBazelon Center for Mental Health LawThe Bazelon Center for Mental Health Law is a national legal-advocacy organization representing people with mental disabilities in the USA. Originally known as The Mental Health Law Project, the Center was founded as a national public-interest organization in 1972 by a group of specialized...
- Mental Capacity Act 2005Mental Capacity Act 2005The Mental Capacity Act 2005 is an Act of the Parliament of the United Kingdom. Its primary purpose is to provide a legal framework for acting and making decisions on behalf of adults who lack the capacity to make particular decisions for themselves....
- Mental Disability Advocacy CenterMental Disability Advocacy CenterThe Mental Disability Advocacy Center is a non-governmental organisation founded in Hungary in 2002. It is headquartered in Budapest.Founded by the Open Society Foundations , MDAC has participatory status with the Council of Europe, and was granted a special consultative status with the United...
- Mental Health (Care and Treatment) (Scotland) Act 2003Mental Health (Care and Treatment) (Scotland) Act 2003The Mental Health Act 2003, which came into effect on 5 October 2005, enables medical professionals to detain and treat people against their will on grounds of mental disorder, with the Mental Health Tribunal for Scotland and the Mental Welfare Commission for Scotland providing safeguards against...
- Psychiatric advance directive
Further reading
- Atkinson, J. (2006), Private and Public Protection: Civil Mental Health Legislation, Edinburgh, Dunedin Academic Press
- Whelan, D. (2009), Mental Health Law and Practice: Civil and Criminal Aspects, Dublin, Round Hall