Deprivation of liberty for the public sector

This Practice Note provides an overview of the deprivation of liberty for the public sector subtopic, which covers the legal framework governing deprivation of liberty in England and Wales. It focuses on the interaction between the Mental Health Act 1983 (MeHA 1983) and the Mental Capacity Act 2005 (MCA 2005), and the obligations arising under Article 5 of the European Convention on Human Rights (ECHR).

In England and Wales, deprivation of liberty in health and social care is primarily governed by two statutory frameworks:

1. •

   MeHA 1983, which provides for the detention and treatment of individuals with mental disorder in specified circumstances, and

2. •

   MCA 2005, which applies where a person lacks capacity to make relevant decisions and permits decisions to be made in their best interests, including arrangements which may amount to a deprivation of liberty

The relationship between these frameworks is complex and fact-sensitive.

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