Name of Country & Current Mental History of Legislation & Policy Developments Overview of Mental Health Legislation Overview of Mental Capacity Legislation Health and Mental Capacity Regulations Regulations: Mental Health (Care and Treatment) () Act 2003 Adults with Incapacity (Scotland) Act 2000 Scotland Lunacy (Scotland) Acts (1857-1913) Mental Deficiency (Scotland) Acts (1913 and 1940) Part 1: The Act is a capacity-based mental health legislation based Principles (Part 1): The first principle-based capacity legislation in Mental Health (Care and Treatment) Mental Health (Scotland) Act 1960 on the set of ten guiding principles. the UK. The Act contains a presumption of capacity and endorses (Scotland) Act 2003 Mental Health (Amendment) (Scotland) Act 1983 Parts 2 and 3 contain provisions for the Mental Welfare decision specific approach. Mental Health (Scotland) Act 1984 (consolidating act) Commission and the Mental Health Tribunal. The Tribunal, Power of Attorney (Part 2): This part regulates the appointment of Adults with Incapacity (Scotland) Act The Mental Health (Detention) (Scotland) Act 1991 replacing the Sheriff Court, authorises and reviews compulsory continuing (i.e. financial) and/or welfare attorneys. 2000 The Criminal Procedure (Scotland) Act 1995 treatment orders. Access to funds scheme (Part 3): The OPG may grant authority to The Mental Health (Patients in the Community) Act 1995 Part 5 regulates emergency detention. intromit with a mentally incapable adult’s funds. This is a way of The Crime and Punishment (Scotland) Act 1997 Part 6 regulates short-term detention. accessing the adult’s bank or building society account in order to The Mental Health (Amendment) (Scotland) Act 1999 Part 7 contains the rules for hospital and community-based meet his or her living costs. The Mental Health (Public Safety and Appeals) (Scotland) Act 1999 compulsory treatment orders. Management of care home/hospital residents’ funds (Part 4): It Reviews & Reports: Part 8 reforms the law relating to people with who allows care establishments and hospitals to manage a limited The Dunlop Committee applying the findings of ’s Percy enter the criminal justice system. amount of the funds of residents who are unable to do this for Commission (1954-1957) to Scotland Part 17 provides additional rights and increased safeguards for themselves. The Millan Committee’s (2001) Report on the Review of the Mental patients, including the right to independent advocacy services, the Medical treatment decisions (Part 5): It allows treatment decisions Health (Scotland) Act 1984 possibility to make advance statements and the appointment of to be taken for an adult who is unable to consent. ‘named persons’ with the role to represent and to provide support Guardianship Order (Part 6): Guardianship can cover financial for the patient. and/or personal welfare matters when the adult has long-term needs in relation to these. Intervention Order (Part 6) This Order is normally suitable where there is a single action to be taken on behalf of the adult.

Regulations: Mental Health () Order 1986 Northern Ireland Mental Treatment Act (Northern Ireland) 1932 Mental Health Act (Northern Ireland) 1948 The Mental Health Order makes provision for (a.) compulsory hospital-based detention and guardianship (Part 2); (b.) patients concerned Mental Health Act (Northern Ireland) 1961 in criminal proceedings or under sentence (Part 3); (c.) consent to treatment for mental disorder (Part 4); (d.) the Mental Health Review Mental Health (Northern Ireland) Order Reviews & Reports: Tribunal (Part 5); (e.) the Mental Health Commission (Part 6); (f.) ‘capacity type’ protections for mentally disordered people who are 1986 MacDermott Report of Northern Ireland Review Committee on unable to manage their financial affairs (Part 8); (g.) specific offences to provide protection from sexual and other abuse (Part 10). Mental Health Legislation 1981 Mental capacity issues are dealt with Bamford Review of Mental Health and Learning Disability 2007 Present plans involve the creation of a fully unified mental health and mental capacity legislation. The new Act is going to introduce four under common law core principles as recommended by the Bamford Review (autonomy, justice, benefit, least harm) and include a decision specific assessment of mental capacity. It will also provide for (a.) advance statements, (b.) lasting powers of attorney, (c.) financial and personal welfare deputies appointed by the High Court, (d.) and the Office of the Public Guardian.

Regulations: Mental Health (Ireland) Act 2001 Lunacy Regulation (Ireland) Act 1871 Ireland Lunacy (Ireland) Act 1821 Criminal Lunatics (Ireland) Act 1838 Part 1 is primarily concerned with definitions. The term ‘mental The current Ward of Court system represents an archaic status- Private Lunatic Asylums (Amendment) Act 1842 disorder’ includes mental illness, severe dementia and significant based approach to mental capacity. Being made a Ward of Court, Mental Health (Ireland) Act 2001 Central Criminal Lunatics Asylum Act 1845 intellectual disability. the person loses the right to make decisions on a wide range of (as amended by Mental Health Act 2008) Lunacy (Ireland) Act 1867 Part 2 outlines the procedure of involuntary admission. issues irrespective of his actual decision-making capacity. Lunacy Asylums (Ireland) Act 1875 Part 3 outlines the powers of the Mental Health Commission and Lunacy Regulation (Ireland) Act 1871 Lunacy (Ireland) Act 1901 the Mental Health Tribunals. Tribunals have the task of reviewing The report of the Irish Law Reform Commission and the Scheme of Mental Treatment Act 1945 involuntary admissions. The members of the Tribunals are the Mental Capacity Bill (2008) sets out the directions for a modern Mental Treatment Act 1953 appointed by the Mental Health Commission. Mental Capacity Act. The new Act is going to (a.) adopt a principle- Mental Treatment (detention in Approved Institutions) Act 1961 Part 4 deals with the rules for consent to treatment, including based approach (e.g. presumption of capacity, least restrictive Mental Treatment Act 1961 consent to ECT, psychosurgery and long-term medication. means, autonomy and dignity, etc.), (b.) apply situation-specific Health (Mental Services) Act 1981 Part 5 regulates Approved Centres (i.e. hospitals or other in-patient capacity assessment, (c.) provide rules for Personal Guardians and Scheme of a Mental Capacity Bill 2008 facilities for the treatment of mental disorders). amend existing EPA regulation (Enduring Power of Attorney Act Reviews & Reports: Part 6 contains miscellaneous provisions. 1996), (d.) establish the post of the Public Guardian. Law Reform Commission: Report on Vulnerable Adults and the Law 2000

Name of country, Main sources Involuntary civil commitment Capacity-type regulations state or province Name of Conditions of admission Available Maximum Review of detention Community LPA/EPA Deputyship Public Guardian Advance regulation procedures duration of treatment directives detention order United States Protection and Advocacy for Individuals with Mental Illness Lanterman - The person, as a result of mental disorder, is Procedure 5150: Writ of habeas corpus Assisted Durable Power of LPS Public Guardians Health Care California (42 US Code Ch. 114) Petris - 1. a danger to others or Initial hold for 72 hours outpatient Attorney Conservatorship and Public Decisions Law Americans with Disabilities Act 1990 Short Act 2. a danger to himself or herself or evaluation and treatment (Uniform Durable (for patients under Conservators 2000 (Cal. Probate Protection and Advocacy for Mentally Ill Individuals Act 1967 3. gravely disabled. treatment (Laura’s Law - Power of involuntary civil (Cal. Probate Code 4600-4805) 1986 CWIC Attorney Act) commitment, CWIC Code 2900-3000 Procedure 5250: Certification review Mental Health Services Act 2004 sections 5350-5372) Intensive 14 days hearing and/or writ of Lanterman - Petris - Short Act 1967 (California Welfare and 5345-5349.5) treatment habeas corpus Institutions Code sec. 5000-5550) Probate Procedure 5270: 30 days Certification review Lanterman Developmental Disabilities Services Act 1969 Conservatorship Additional hearing and/or writ of Health Care Decisions Law 2000 (California Probate Code (for people not intensive habeas corpus sec. 4600-4805) under civil treatment Uniform Durable Power of Attorney Act (California Probate commitment, Cal. Code sec. 4124, 4125, 4126, 4127, 4206, 4304, 4305) The person is gravely disabled as a result of Temporary 30 days Court or jury trial Probate Code 1400- 1. mental disorder or conservatorship to determine grave 4000 ) 2. impairment by chronic alcoholism. (CWIC sections disability and/or writ 5350-5372) of habeas corpus if detained Conservatorship 1 year Court or jury trial (CWIC sections (renewable) to determine grave 5350-5372) disability and/or writ of habeas corpus if detained Canada The Canadian Charter of Rights and Freedoms Mental The person Emergency 48 hours (can Periodical review by Conditional Representatives Committeeship Public Guardian No specific British Columbia Federal Criminal Code of Canada, R.S. 1985, c. 46 (Mental Health Act 1. has mental disorder confinement and be extended physician and by leave from (Representation (Patients Property and Trustee of legislation. Certain Disorder provisions) 1996 2. requires treatment short-term to 1 month) Review Panel + writ of hospital Agreement Act Act 1996) B.C. (Public provisions of the Mental Health Act, R.S.B.C. (Revised Statutes of British 3. requires care, supervision and admission habeas corpus by (section 37) 1996) Guardian and Health Care Columbia) 1996, c. 288 control to prevent the person’s substantial (section 22) Supreme Court Regulation in Trustee Act 1996) (Consent) Act and Adult Guardianship Act, R.S.B.C. 1996, c. 6 mental or physical deterioration, or to Enduring Power transition (Part 2 of the Health Care (Consent) and Care Facility (Admission) Act, protect the person, or to protect others Renewal of Additional 1 Periodical review by of Attorney the Adult Representations R.S.B.C. 1996, c. 181 4. cannot be admitted as a voluntary detention and month + 3 physician and by (Power of Guardianship Act is Agreement Act Representation Agreement Act, R.S.B.C. 1996, c. 405 patient. long-term months + 6 Review Panel + writ of Attorney Act not yet in force) provide a limited Power of Attorney Act, R.S.B.C. 1996, c. 370 admission months habeas corpus by 1996) framework. Patients Property Act, R.S.B.C. 1996, c. 349 (section 24) periods Supreme Court Public Guardian and Trustee Act, R.S.B.C. 1996, c. 383 Australia Mental Health Act 2007 Mental The person Initial, second and Initial Review by Review Community Enduring Financial Manager NSW Public No specific New South Guardianship Act 1987 Health Act 1. has mental illness and (in case of examination Tribunal every 3 treatment Guardian and Guardian Guardian legislation. The Protected Estates Act 1983 2007 2. (a) treatment is necessary either for the disagreement) within12 months for the first order (issued (sections 5-60 (sections 25D – 25U (Guardianship Act issue falls under Powers of Attorney Act 2003 person’s own protection from serious harm third examination hours year, every 6 months by Mental Guardianship Act and 14-25C 1987) common law. Mental Health (Criminal Procedures) Act 1990 or by medical afterwards + appeal to Health 1987) Guardianship Act 2. (b) for the protection of others from practitioners Supreme Court Review 1987) Protective serious harm. Mental health 3 months at Tribunal, Enduring Power Commissioner inquiry by Mental first section 51) of Attorney (Protected Health Review (renewable) (sections 19-25 Estates Act 1983) Tribunal Powers of The person Initial, second and Initial N/A Attorney Act 1. has mental disorder and (in case of examination 2003) 2. his/her behaviour is so irrational disagreement) within 12 that temporary care, treatment or control is third examination hours, necessary (a) for the person’s own by medical maximum 3 protection from serious physical harm, or practitioners days of (b) for the protection of others from serious detention physical harm. New Zealand Mental Health (Compulsory Assessment and Treatment) Mental The person has mental disorder, Preliminary 5 days Judicial review Community Enduring Power Welfare Guardians No PG, but the Delegated to Act 1992 Health understood as: assessment treatment of Attorney and Public Trust can common law by Protection of Personal and Property Rights Act 1988 (Compulsory 1. an abnormal state of mind (continuous (sections 8-12) order (Courts (sections 93-108 Managers be appointed as the Code of Health Code of Health and Disability Services Consumers’ Rights Assessment or intermittent), shall give Protection of (Sections 5-23 and property manager and Disability (1996) and 2. characterised by delusions, or by priority to Personal and 24-52 Protection of in some cases. Services Mental Health Commission Act 1998 Treatment) disorders of mood or perception or volition Further 14 days Judicial review CTOs over Property Rights Personal and Consumers’ Rights Act 1992 or cognition, of such a degree that it assessment inpatient Act 1988) Property Rights Act (1996, 3. (a) poses a serious danger to the health (section 13) orders 1988) Right 7.5) or Compulsory 6 + 6 months, Clinical review (after 3 whenever safety of that person or of others; or treatment order indefinite months, then every 6 possible, 3. (b) seriously diminishes the capacity o issued by Family afterwards months) with appeal sections 28 - that person to take care of himself or Court judge possibility to the 29) herself. (sections 17-36) Review Tribunal.