Psychiatry is not exclusively the only medical specialty conflicting with legislation on capacity, although within public health medicine this occurs rarely (Reference LeppingLepping, 2008). Individuals with capacity can be legally detained, if they have an infectious disease placing the public at risk (Public Health Act 1984, s38/39).

The ability to legally detain individuals under this Act and the Mental Health Act 1983/2007 is derived from the European Convention of Human Rights, article 5(1)(e). This states that, ‘everyone has the right to liberty except in the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind…’. This legislation and its interpretations made by courts make no consideration of capacity [ Winterwerp v. Netherlands, 1979] and take a utilitarian approach to the treatment of the mentally ill.

The Human Rights Act 1998 demands that British legislation is read in a compliant manner with the European Convention of Human Rights, but as the Convention takes a utilitarian approach to mental illness we would argue the Human Rights Act in this context is not a rights-based legislation as suggested. We agree with Lepping that the Mental Capacity Act 2005, a primarily rights-based legislation, is in ethical conflict with the utilitarian approach of the Mental Health Act 1983/2007, but it equally conflicts with the European Convention of Human Rights.