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Mental capacity and psychiatric in-patients: implications for the new mental health law in England and Wales

  • Gareth S. Owen (a1), George Szmukler (a2), Genevra Richardson (a3), Anthony S. David (a4), Peter Hayward (a5), James Rucker (a6), Duncan Harding (a7) and Matthew Hotopf (a8)...
Abstract
Background

In England and Wales mental health services need to take account of the Mental Capacity Act 2005 and the Mental Health Act 1983. The overlap between these two causes dilemmas for clinicians.

Aims

To describe the frequency and characteristics of patients who fall into two potentially anomalous groups: those who are not detained but lack mental capacity; and those who are detained but have mental capacity.

Method

Cross-sectional study of 200 patients admitted to psychiatric wards. We assessed mental capacity using a semi-structured interview, the MacArthur Competence Assessment Tool for Treatment (MacCAT–T).

Results

Of the in-patient sample, 24% were informal but lacked capacity: these patients felt more coerced and had greater levels of treatment refusal than informal participants with capacity. People detained under the Mental Health Act with capacity comprised a small group (6%) that was hard to characterise.

Conclusions

Our data suggest that psychiatrists in England and Wales need to take account of the Mental Capacity Act, and in particular best interests judgments and deprivation of liberty safeguards, more explicitly than is perhaps currently the case.

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Copyright
Corresponding author
Gareth S. Owen, Department of Psychological Medicine, Institute of Psychiatry, Western Education Centre, Cutcombe Road, London SE5 9RJ. Email: g.owen@iop.kcl.ac.uk
Footnotes
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The study was funded by the Wellcome Trust. M.H. and A.S.D. are supported by the Biomedical Research Centre for Mental Health at the Institute of Psychiatry, King's College London, and The South London and Maudsley NHS Foundation Trust.

Declaration of interest

G.R. chaired the Expert Committee on the review of the Mental Health Act 1983. G.R., G.S. and A.S.D. all gave views to parliamentary committees over reform of the Mental Health Act 1983 where capacity was a central issue. These authors have differing views about mental capacity as a basis for mental health law. G.R. and G.S. are in favour of capacity-based mental health law. A.S.D. is against. M.H. has acted as an expert witness on cases where capacity has been under dispute.

Footnotes
References
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1 R v Bournewood Community and Mental Health Trust ex parte L [1998] 3 All ER 289 HL.
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The British Journal of Psychiatry
  • ISSN: 0007-1250
  • EISSN: 1472-1465
  • URL: /core/journals/the-british-journal-of-psychiatry
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Mental capacity and psychiatric in-patients: implications for the new mental health law in England and Wales

  • Gareth S. Owen (a1), George Szmukler (a2), Genevra Richardson (a3), Anthony S. David (a4), Peter Hayward (a5), James Rucker (a6), Duncan Harding (a7) and Matthew Hotopf (a8)...
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