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Mental capacity assessments in secure care: an unnecessary complication?

  • Ashimesh Roychowdhury (a1)
Summary

This is a review of the key criteria and implications of the Mental Capacity Act 2005 for patients in forensic care detained under the Mental Health Act 1983. Both Acts were amended by the Mental Health Act 2007 and its subsequent Code of Practice; the impact of these changes will be explored here. Through review of the Code of Practice and hypothetical clinical scenarios, I argue that capacity judgements in mental disorder are inherently complex, unreliable and inextricably linked to risk assessment, and that an overemphasis on capacity when making decisions about patient management in secure care can paradoxically obscure the more central issue of risk and proportionality. the key clinical implication is a call for secure services to be balanced in how they adopt best practice principles from the new Mental Capacity Act so that the spirit of the Act, such as valuing patient autonomy, is preserved and that the debate about what practices in secure care are truly proportionate and justified remains at the forefront of clinical thinking.

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Copyright
This is an Open Access article, distributed under the terms of the Creative Commons Attribution (CC-BY) license (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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1 Department for Constitutional Affairs. Mental Capacity Act 2005: Code of Practice. TSO (The Stationery Office), 2007.
2 Department of Health, Welsh Office. Code of Practice: Mental Health Act 1983 (revised 1999). TSO (The Stationery Office), 1999.
3 Department of Health. Code of Practice: Mental Health Act 1983. TSO (The Stationery Office), 2008.
4 R v. Bournewood Community and Mental Health NHS Trust, ex parte L [1998] 2WLR 764, per, Lord Woolf MR.
5 R v. Bournewood Community and Mental Health NHS Trust, ex parte L [1999] AC 458.
6 HL v. the United Kingdom (Application no. 45508/99). Judgment 5 October 2004.
7 National Institute of Clinical Excellence. Violence: the Short-Term Management of Disturbed/Violent Behaviour in In-Patient Psychiatric Settings and Emergency Departments. NICE, 2005.
8 Park v. Park [1953] 2 All ER 408.
9 Grounds, A, Mullen, P, Taylor, P, Gunn, J. Secure institutions: their characteristics and problems. In Forensic Psychiatry: Clinical, Legal and Ethical Issues. Butterworth-Heineman, 2003.
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BJPsych Bulletin
  • ISSN: 0955-6036
  • EISSN: 1472-1473
  • URL: /core/journals/bjpsych-bulletin
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Mental capacity assessments in secure care: an unnecessary complication?

  • Ashimesh Roychowdhury (a1)
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