The History, Justification, and Purpose of Mental Health Law

Abstract

Chapter 2 examines the historical development of mental health law in England (which is similar to the rest of the common law world, including America, Canada, and Australia) and uses that history to consider the justification, purpose, and need for mental health law from Ancient Greece to the present. Contrary to the claims of abolitionists that mental health law has essentially always stayed the same, it demonstrates a history of continuous legal and systemic reform in mental health law. Rather than an over-zealous and interfering state keen to exercise social control over persons with mental impairment, it instead depicts a state which for the most part reluctantly only became involved in the care of persons with mental health problems when informal care by family and friends failed or was non-existent, to prevent abuses by private operators, and as an incident of its administration of the criminal law. When set against the background of the fashions, cycles, and recurring themes of mental health law, the call of abolition can be conceptualized as simply the latest fad in its evolution. Further, many of the issues which arise from mental health problems will continue to exist even without mental health law. Mental health law can be positive and negative, including defining and protecting rights and allocating resources. The chapter cautions against being too optimistic about the promises of sweeping revolutionary changes which have never really delivered (deinstitutionalization or the ‘abolition’ of the asylum being the most poignant example), in favour of solid incremental change.