Mental Health and Social Welfare Law
I am producing this guide to mental health and social welfare law because there doesn't seem to be any other guidance available. If anyone is aware of any which I have missed then please let me know by adding a comment or emailing me at firstname.lastname@example.org.
There is quite a lot of material out there on mental health law but it does not appear to be focussed on social welfare law. At the moment if I mention mental health law to someone they are likely to think that I am referring to the law relating to people who are "sectioned" (detained, assessed and treated under the Mental Health Act 1983 as amended by the Mental Health Act 2005 . There is also a lot of material about what support might be available for those with mental illnesses by way of community care services pursuant to the Care Act 2014.
What I am talking about is how the legal system recognises and engages with mental health issues in relation to the area of law which is coming to be known as social welfare law. This started off as housing law but has expanded to take in welfare benefits issues, immigration and now mental health law. I can't find much on this aspect of mental health and the law
I have been working in housing law since 1994 but its only been quite recently that I have realised the centrality of mental health issues to this area of law. I think that many other lawyers are still unaware of it. The areas where mental health issues are important include:-
- My ability as a lawyer to engage with the client. Mental health problems will quite often prevent a client from being able to provide instructions or cause them to behave in a way that might often lead to their case being closed. For instance clients may fail to provide instructions or may behave in an argumentative or abusive manner. Such behaviour would traditionally lead to a solicitor refusing to work with such a client. A solicitor who is aware of mental health issues can move beyond that and provide the client with assistance in resolving their legal problem.
- Mental health problems will often be the cause of rent arrears or antisocial behaviour giving rise to possession claims being issued against them. Awareness of these mental health issues and the law relating to them will enable a solicitor to defend such possession claims successfully where the cases would previously have seemed hopeless.
- Mental health problems will also often be central to homelessness cases at all stages of the process. A client's mental health issues may be entitle a an applicant to be treated as homeless due to the unsuitability of their current accommodation. It may entitle them to be treated a being in priority need due to mental health issues giving rise to vulnerability. It may mean that a client's behaviour cannot be treated as deliberate for the purposes of their being found to be intentionally homeless.
Illness - If I refer to illness here I am not necessarily talking about a condition which may improve or change. I am also talking about long term conditions for instance arising from an injury which are not likely to change at all.
If someone is mentally ill and unable to manage their affairs they are going to be treated for legal purposes as lacking the capacity to make decisions or take actions which they need to take for the purposes of day to day life.
What Decisions and Actions?
An often repeated mantra in this area is that capacity is issue specific. That is to say that depending on the nature of the mental illness a person may have capacity to make some decisions but not others. This might be seen as a sliding scale. At one end might be someone in good health who has full capacity and is able to take any necessary decisions. At the other end might be someone in a coma who lacks capacity to make any decisions and cannot take any actions. Somewhere on the scale between these two poles will be the person who suffers from depression which does not prevent them from deciding where they would like to live but does prevent them from being able to complete a detailed form when applying for Housing Benefit.
There will also be situations where people may lack capacity for some of the time due to an illness where the symptoms come and go.