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As the General Election draws nearer it might be worth a reminder of the voting rights of people subject to mental health law. Not so long ago people detained in mental hospitals were deprived of the vote, along with prisoners and members of the House of Lords. However, things have changed following pressure to ensure equality of rights.
The Representation of the People Act 2000 ensures that, generally speaking, people who are subject to some form of compulsion under the Mental Health Act 1983 have the right to vote. So patients in hospital under section 2 for assessment, or section 3 for treatment (what we call the civil part of mental health law), can vote. That is of course dependent on people having registered to vote (the deadline for making sure you are registered to vote in this election is 20th April). Clearly you need to register at a particular address, and if you have been in hospital a long time this could be regarded as your normal residence. A useful guide on the process has just been brought out by the Royal College of Psychiatrists which you can find here.
The right to vote
People subject to some form of compulsion in the community under the Mental Health Act such as Guardianship, or Community Treatment Orders are also fully entitled to vote. However, people subject to detention under a ‘criminal’ part of the Mental Health Act generally cannot vote. They are detained by an order of the Court as a result of a conviction for a serious criminal offence (the comparison here is with convicted prisoners who are not allowed to vote).
Capacity to vote
What about people who lack the mental capacity to decide whether they should vote or who they should vote for? This issue is specifically excluded from the Mental Capacity Act 2005. It is not a decision that can be taken by someone else in your best interest. So even if you lack the mental capacity to decide who to vote for, you still have every right to vote. The Electoral Registration Act 2006 makes that clear when it says ‘Any rule of the common law which provides that a person is subject to a legal incapacity to vote by reason of his mental state is abolished.’
Going to vote
If someone is an-patient at a psychiatric hospital on the day of the General Election they can vote in person if they wish, though of course if they were detained they would need to have leave of absence granted by the hospital. Otherwise, patients would need to vote by post or use a proxy. The situation in Scotland is very much the same – the mental health laws are different but the two pieces of electoral law I mentioned apply throughout the United Kingdom.
David Beckingham – QCS Expert Mental Health Contributor