Deprivation of Liberty: the Mental Health Act or the Mental Capacity Act?
Abstract
Both the Mental Health Act (1983) and the Mental Capacity Act 2005 now have provisions that authorise the care and treatment of a person in circumstances that amount to a deprivation of liberty. In accordance with the requirements of article 5 of the European Convention on Human Rights both regimes require a person to be suffering from a mental disorder before they can be subject to a deprivation of liberty. This article rebuts the assumption that practitioners can pick and choose which method to use when authorising a deprivation of liberty. It goes on to highlight the primacy of the Mental Health Act (1983) when a deprivation of liberty is necessary to treat a mental disorder in hospital or care home...