The mental capacity tribunal under the model law: what are we arguing about?

Abstract

It would be a mistake to think of mental health law as a generic form of law directed at a particular class of people, those described as suffering from mental disorders. If a person who has a mental disorder will accept treatment, whether or not they have the capacity to consent to it, there is in general no need to have recourse to mental health law. The Mental Health Act 1983 (‘MHA’) exists for the specific purpose of regulating, and ultimately adjudicating upon, the conflict between a person who objects to receiving psychiatric treatment and the professionals on whom the law confers powers of compulsion. But, as advocates of a capacity-based legal framework would surely agree, it is not the existence of mental health law that gives rise to this conflict. That we have a Mental Health Act but not, say, a Dental Health Act is explained by features characteristic of serious mental illnesses which are not, by and large, found in other medical conditions.