The Mental Capacity Act 2005, the Mental Health Act 1983 and the Common Law(1)

Phil Fennell(2)

This paper considers what has come to be known as the ‘interface’ between the Mental Capacity Act 2005 and the Mental Health Act 1983. Sections 5 and 6 of the 2005 Act provide a general defence to acts of care and treatment which may involve restraint and restriction of liberty of a mentally incapacitated person. 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. Sections 5 and 6 apply to any person. The defence confers powers to make decisions concerning care and treatment. Powers similar to those available under section 5 may be expressly conferred on the donee of a lasting power of attorney(3) or a deputy appointed by the Court of Protection.(4)

Footnotes:
(1) This is an amended version of a paper given at Sweetand Maxwell’s Mental Capacity Act Conference, 30 September 2005, Kingsway Hall Hotel, London
(2) Professor of Law, Cardiff Law School
(3) Mental Capacity Act s 9(1)(a) which provides for donees to take decisions concerning personal welfare,which could include consenting to or refusing treatment.
(4) Ibid., s 16(1)(a). Both donees and deputies may restrainan incapacitated person subject to the conditions in s 11(donees) and in s 20(7)–(13) (deputies). In the case of deputies, authority to restrain must be expressly conferred by the court.

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