RELEVANT CHAPTERS

Section 117 Aftercare

Interface between the Mental Capacity Act 2005 and the Mental Health Act 1983

RELEVANT INFORMATION

Mental Health Act 1983 Code of Practice 2007 (amended 2015)

Guidance for the implementation of changes to police powers and places of safety provisions in the Mental Health Act 1983 (Department of Health and the Home Office)

January 2019: This chapter was amended to include a link to Guidance for the Implementation of Changes to Police Powers and Places of Safety Provisions in the Mental Health Act 1983, published by the (then) Department of Health and the Home Office, as above.

1. Introduction

Mental health and mental wellbeing can have different meanings to each individual. If a person feels well they have good mental health they will be able to cope well with day to day life, make the most of their potential and partake fully in social, family, community and work related activity.

When a person does not feel that they are in a state of good mental health, it can affect their daily activity and their perception on life, so daily life, work and socialising with family, friends, colleagues and the wider community becomes difficult.

2. Mental Health Act 1983

In legal terms, the Mental Health Act 1983 (amended 2007) does not use the expression mental health, but refers to mental disorder.

2.1 Amendments to the Act

The amendments of the MHA in 2007 simplified the previous criteria and outlined mental disorder to be ‘any disorder or disability of the mind’.

Whist mental disorder is now classified as such, a diagnosis of a learning disability does not count for detention or treatment under the Act unless it is ‘associated with abnormally aggressive or seriously irresponsible conduct.’

People with a learning disability are considered under the MHA only if they exhibit behaviour that is ‘abnormally aggressive or seriously irresponsible’. A  person cannot be detained under the Act purely as a result of their learning disability alone.

Amendments to the Act also mean that people with personality disorders who used not to be detainable under the Act (because their disorders did not result in ‘abnormally aggressive or seriously irresponsible conduct on the part of the person concerned’) can now be detained.

There is still an exclusion that relates to a dependence on drink or drugs which means a person cannot be detained under the MHA 1983 solely for such a dependency, but they can be detained if it arises because of or from a mental disorder.

Chapter 2 of the Code of Practice to the MHA 1983 (2007) explains in further detail what illnesses may be considered under the Act and also references personality disorders and the MHA.