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Detention and Deprivation of Liberty: the interface between the Mental Health Act 1983 and the Mental Capacity Act 2005: Part 1

Date:14 SEP 2012

Her Honour Nasreen Pearce & DJ Sue Jackson:

The Mental Health Act 1983 makes provision for the care and treatment of those who are suffering from ‘mental disorder' and sets out the safeguard and procedure available to those who are detained under the Act to challenge the decision for his/her detention made by public bodies The Mental Capacity Act 2005 is wholly based on the incapacity of an individual to make decisions for himself/herself. The Deprivation of Liberty Safeguards were introduced into the 2005 Act to provide similar safeguards for those who lack capacity and who are deprived of their liberty to challenge the deprivation of his//her liberty on the ground that it is Art 5 non-compliant. The intention of the legislator in amending the MCA 2005 was to clarify the interface between these two Acts

Inevitably, situations do arise when decisions have to be made on which of the two regimes is the appropriate one to follow. This sometimes raises multiple complex legal issues which challenges judges and the most experienced professionals.

Part 1 of this two part article explores the statutory relationship between the two Acts. The case law which has emerged under these two separate regimes will be considered in Part 2