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13 Oxford J. Legal Stud. 479 (1993)
Law and Lunacy in Psychiatry's Golden Age

handle is hein.journals/oxfjls13 and id is 493 raw text is: Law and Lunacy in Psychiatry's
'Golden Age'
CLIVE UNSWORTH*
Introduction
The history of provision for the mentally disordered divides into three eras:'
1 pre-carceral, before the mass consignment of the mentally disordered to
specialized institutions had taken place;
2 carceral, the initial phase of which has been characterized by the radical
French psychiatric historian Robert Castel as the 'Golden Age' of psychiatry,2
when its power was founded on the privileged site of the asylum and the status of
mental patient and insane detainee were closely aligned;
3 post-carceral, encompassing the transformation in legal relations which has
accompanied the attempt to close the asylum and substitute non-institutional
alternatives.
Today, mental health policy continues to negotiate the complexities of the
post-carceral era. As part of this process the focus of mental health law has
become significantly redirected. As recently as the Mental Health Act 1983,
which is the governing statute in this area of law, the preoccupation was still with
the problems of regulation surrounding commitment to, detention in and
discharge from mental institutions (and specifically with the injection of a
significant dose of civil libertarian ideology to counteract the alleged Fabian
authoritarianism of earlier welfarist legislation).
Now at the centre of concern we find the plethora of issues surrounding
incapacity, especially with reference to consent to medical treatment of informal
and non-hospitalized patients.3 The Law Commission has since 1989 been
* Medico-Legal Studies Unit, Cardiff Law School. A draft of this article was presented as a seminar paper at
Warwick Law School on 24 November 1992. I would like to thank the participants in the subsequent discussion, in
particular Alan Norrie, for their constructive comments. The article was completed before the Government
announced plans to introduce supervised discharge orders and associated changes in law and practice.
I See C. Unsworth, 'Mental Disorder and the Tutelary Relationship: From Pre- to Post-carceral Legal Order'
(1991) 18 Journal of Law and Society 254, at 255.
2 R. Castel (tr W. D. Halls), The Regulation of Madness: the origins of incarceration in France (1988) 7-8.
See Fv West Berkshire Health Authority (1989) 4 BMLR 1; In Re R (1991)7 BLMR 147;Jv C (1990) 5 BLMR
100; Re SG (1990) 6 BMLR 95; F v F (1991) 7 BMLR 135; Re W (1992) 9 BMLR 22; Re H (1992) 9 BLMR 71.
1 Oxford University Press 1993  Oxford Journal of Legal Studies Vol 13, No 4

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