title: Deprivation of liberty: the Mental Health Act or the Mental Capacity Act?
abstract: Both the Mental Health Act (1983) and the Mental Capacity Act 2005 now have provisions that authorise the care and treatment of a person in circumstances that amount to a deprivation of liberty. In accordance with the requirements of article 5 of the European Convention on Human Rights both regimes require a person to be suffering from a mental disorder before they can be subject to a deprivation of liberty. This article rebuts the assumption that practitioners can pick and choose which method to use when authorising a deprivation of liberty. It goes on to highlight the primacy of the Mental Health Act (1983) when a deprivation of liberty is necessary to treat a mental disorder in hospital or care home.
authors.affiliation: School of Health Science, Swansea University. richard.griffith@swan.ac.uk
authors.forename: Richard
authors.initials: R
authors.lastname: Griffith
authors.forename: Cassam
authors.initials: C
authors.lastname: Tengnah
mesh_terms: D003134:Commitment of Persons with Psychiatric Disorders / Q000331:legislation & jurisprudence*; D003152:Community Health Nursing; D003657:Decision Making; D004608:Eligibility Determination; D006806:Human Rights / Q000331:legislation & jurisprudence*; D006801:Humans; D016743:Mental Competency / Q000331:legislation & jurisprudence*; D001523:Mental Disorders / Q000451:nursing / Q000534:rehabilitation*; D006113:United Kingdom