MENTAL CAPACITY AT THE MARGIN: THE INTERFACE BETWEEN TWO ACTS

Abstract

Developed legal systems commonly provide special powers to intervene in the medical care and treatment of people with mental disorder. Typically, this intervention will take the form of involuntary hospitalisation and treatment, and the law is used to specify the point at which otherwise unlawful interference or coercion becomes lawful. However, by making an exception of mental disorder and providing special powers of intervention in relation to it, the law has not only to specify the nature and limits of those powers, but it must also identify the population to whom they apply—people with mental disorder. This question of demarcation can cause difficulties and uncertainties at the interface between mental disorder and physical disorder, for example, or between mental disorder and deviance, or between mental disorder and mental incapacity. While the interface between mental disorder and deviance or anti-social behaviour has proved notoriously problematic over the years and will no doubt continue to do so,1 it is the interface between mental disorder and mental incapacity that is currently causing most practical concern in England and Wales. And it is with this interface that the present article is primarily concerned.