Deprivation of liberty for the public sector

In England and Wales, the non-consensual care and treatment of people with a mental disorder is governed largely by two parallel legal schemes—the Mental Health Act 1983 (MeHA 1983) and the Mental Capacity Act 2005 (MCA 2005). There is considerable overlap between the two Acts and the relationship can be extremely complex.

While MeHA 1983 has no age limit, MCA 2005 applies only to those aged 16 and over. The interface, therefore, only arises in relation to people aged 16 and over.

In very broad terms, MeHA 1983 provides mainly for the detention and treatment of people in hospital for mental disorder, on the basis of protection of the person and of the public. A person can be admitted and treated irrespective of their capacity to consent.

MCA 2005 applies only to those who lack the relevant decision-making capacity. It is not limited to hospital settings or treatment for mental disorder; it covers (nearly) all decisions and provides for deprivation of liberty based on the person’s best interests.

Article 5 (right to liberty and security)

Article 5 of the European

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