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Deprivation of liberty: Mental Capacity Act safeguards versus the Mental Health Act

  • Ruth Cairns (a1) (a2), Genevra Richardson (a3) and Matthew Hotopf (a1) (a4)
Summary

The Mental Capacity Act deprivation of liberty safeguards have been criticised for their complexity and unclear interface with existing mental health law. The new legislation, which was implemented in April 2009, is likely to pose a challenge to clinical teams.

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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.
Corresponding author
Ruth Cairns (ruth.cairns@kcl.ac.uk)
Footnotes
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*

See editorial pp. 217–220, original paper pp. 221–225 and special article pp. 243–245, this issue.

Declaration of interest

None.

Footnotes
References
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1 Department of Health. Deprivation of Liberty Safeguards: Code of Practice to Supplement the Main Mental Capacity Act 2005 Code of Practice. TSO (The Stationery Office), 2008.
2 Department of Health. Mental Health Act. TSO (The Stationery Office), 2007.
3 Owen, G, Richardson, G, David, A, Szmukler, G, Hayward, P, Hotopf, M. Mental capacity to make decisions on treatment in people admitted to psychiatric hospitals: cross sectional study. BMJ 2008; 337: 448.
4 Raymont, V, Bingley, W, Buchanan, A, David, A, Hayward, P, Wessely, S, et al. Prevalance of mental incapacity in medical in-patients and associated risk factors: cross sectional study. Lancet 2004; 364: 1421–7.
5 HL v. United Kingdom (2005) 40 EHRR 437.
6 Council of Europe. European Convention for the Protection of Human Rights and Fundamental Freedoms. Council of Europe, 2003.
7 Robinson, R. Amending the Mental Capacity Act 2005 to provide for deprivation of liberty. J Mental Health Law 2007; May: 2540.
8 Scott-Moncrieff, L. Casenotes. Two steps forward, one step back. J Mental Health Law 2007; May: 107–14.
9 Weereratne, A, Hatfield, S, Burnham, U, Gerry, A. The Relationship between the MCA 2005 and the MHA 1983. Butterworths New Law Guide. Mental Capacity Act 2005. Personal Welfare Decisions. LexisNexis, 2008.
10 Richardson, G. Mental capacity at the margin: the interface between two Acts. Med Law Rev 2010; 18: 122.
11 Department of Health House of Lords, House of Commons Joint Committee on Human Rights. Legislative Scrutiny: Mental Health Bill Fourth Report of Session 2006–2007 (HL paper 40 HC 288). TSO (The Stationery Office), 2007.
12 Department of Health. Draft Illustrative Guidance on the Bournewood Safeguards. TSO (The Stationery Office), 2006.
13 JE and DE v. Surrey County Council and EW (2006) EWHC 3495 (Fam).
14 GJ v. The Foundation Trust (2009) EWHC 2972 (Fam).
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BJPsych Bulletin
  • ISSN: 1758-3209
  • EISSN: 1758-3217
  • URL: /core/journals/bjpsych-bulletin
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Deprivation of liberty: Mental Capacity Act safeguards versus the Mental Health Act

  • Ruth Cairns (a1) (a2), Genevra Richardson (a3) and Matthew Hotopf (a1) (a4)
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