Abstract
<p align="LEFT">This paper considers what has come to be known as the ‘interface’ between the Mental Capacity Act 2005 and the Mental Health Act 1983. Until the 2005 Act comes into force in 2007, practitioners will have to be aware of the interface between powers to admit to institutional care and treat without consent under common law and those which exist under the Mental Health Act 1983.</p><p align="LEFT">In simple terms, the interface question is ‘When may the common law or, after 2007, the 2005 Act, be used to admit to institutional care and treat without consent, and when will use of the Mental Health Act be required?’ This article argues that there are two decisions of the European Court which need to be considered in determining how to bridge what has become the “Bournewood gap”: <em>HL v United Kingdom</em> and <em>Storck v Germany</em>. These will require that the State must provide effective supervisory mechanisms to ensure that mentally incapacitated people are not deprived of their liberty (Article 5) and do not have their right of bodily integrity interfered with (Article 8) without lawful authority.</p>
Highlights
This paper considers what has come to be known as the ‘interface’ between the Mental Capacity Act 2005 and the Mental Health Act 1983
Because authority is conferred by way of a defence, there are no procedural safeguards comparable to those available under the Mental Health Act 1983 in relation to care and treatment decisions taken under the Mental Capacity Act
Until the 2005 Act comes into force in 2007, practitioners will have to be aware of the interface between powers to admit to institutional care and treat without consent under common law and those which exist under the Mental Health Act 1983
Summary
This paper considers what has come to be known as the ‘interface’ between the Mental Capacity Act 2005 and the Mental Health Act 1983. The Draft Code clearly sees restraint as including ‘chemical restraint, for example giving someone a large amount of sleeping pills in order to sedate them and thereby restrict their liberty of movement.’[12] The Act precludes giving treatment for mental disorder under any of its provisions, ‘if at the time when it is proposed to treat the patient, his treatment is regulated by Part lV of the 1983 Act.’[13] In other words, the Mental Capacity Act will not apply if the patient is already liable to be detained under one of the longer term detention powers in the Mental Health Act. Section 6(5), inserted to take account of HL v United Kingdom, provides that D does more than merely restrain P if he deprives P of his liberty within the meaning of Article 5, whether or not D is a public authority.
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