The Legal Authority to ‘More Than Merely Restrain’ Incapacitated Patients: The Interface Between the Mental Capacity Act and the Revised Mental Health Act in England And Wales
| DOI | https://doi.org/10.1108/13619322200900005 |
| Date | 15 May 2009 |
| Pages | 24-35 |
| Published date | 15 May 2009 |
| Author | Ajit Shah,Chris Heginbotham,Mat Kinton |
| Subject Matter | Health & social care |
Mental Health Review Journal Volume 14 Issue 1 March 2009 © Pavilion Journals (Brighton) Ltd
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Ajit Shah
Professor of Ageing, Ethnicity and Mental Health, International School for Communities, Rights and Inclusion, University
of Central Lancashire, UK
Chris Heginbotham
Professor of Mental Health Policy and Management and Deputy Head, International School for Communities, Rights and
Inclusion, University of Central Lancashire, UK
Mat Kinton
Senior Researcher in Mental Health Law, International School for Communities, Rights and Inclusion, University of Central
Lancashire, UK
The Legal Authority to ’More Than
Merely Restrain’ Incapacitated
Patients: The Interface Between
the Mental Capacity Act and the
Revised Mental Health Act in
England And Wales
Abstract
The Mental Capacity Act 2005 (MCA) was fully implemented in October 2007 within England and Wales as a
framework for making decisions about incapacitated persons’ care and treatment generally not amounting to a
deprivation of their liberty (although such could be authorised under its powers by the new Court of Protection).
From a planned date of April 2009, the MCA is to be enlarged by the provisions of the Mental Health Act 2007
(MHA 2007) to encompass deprivation of liberty, with the addition of a new framework of Deprivation of Liberty
Safeguards (DOLS). The MHA 2007 also revised significant aspects of the Mental Health Act 1983 (MHA),
which were implemented in November 2008. The interface between the MCA, as amended to include DOLS, and
the revised MHA is complex and potentially ambiguous. This paper describes in detail some issues that may arise
at the interface of the two acts, and seeks to inform professionals involved in the use of these legal frameworks of
the resulting complexity.
Key words
Mental Capacity Act, Mental Health Act, Deprivation of Liberty Safeguards
The Mental Capacity Act1 2005 (MCA) (Department
of Constitutional Affairs, 2007) was fully
implemented in October 2007 as a framework for
making decisions about incapacitated persons’ care
and treatment, and includes a protection of liability
in relation to everyday acts in caring for such persons,
including the use of restraint (MCA, s.5). A person
claiming such protection from liability must believe
that the restraint was in the person’s best interests
(MCA, s.5(1)(b)(ii)); necessary to prevent harm to
the person concerned (rather than, for example,
harm to others) (MCA, s.6(2)); and the act of
POLICY
1A glossary of all the abbreviations and acronyms used in this paper appears in Table 1 on page 34.
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