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Detention and Deprivation of Liberty: the interface between the Mental Health Act 1983 and the Mental Capacity Act 2007: Part 2

Date:8 NOV 2012

Her Honour Nasreen Pearce

Retired Circuit Judge

District Judge Sue Jackson

Nominated Judge of the Court of Protection:

This is the second of a two part article on the interface between the Mental Health Act 1983 and the Mental Capacity Act 2005. Part 1 dealt with the statutory provisions. Parat 2 deals with some of the difficult issues which have troubled the professionals and how they have sought to deal with them and how the courts have determined those issues which have been described by Jackson J in C v Blackburn with Darwen Borough Council in the following terms:

‘It is a truly unhappy state of affairs that the law governing the fundamental rights and welfare of incapacitated people should be so complex. As this case shows the intricacies challenge the understanding of professionals working in the field and are completely inaccessible to those for whose benefit the legislation has been devised, including those with a relatively high level of understanding  such as Mr C.'

The article also seeks to highlight situations where neither the Mental Health Act 1983 nor the Mental Capacity Act provides an appropriate remedy.