The interface between the Mental Health Act 1983 (MHA) and the Mental Capacity Act 2005 (MCA) can throw up complex issues. This article reviews a Court of Protection case that considered this interface specifically in the context of physical healthcare for a patient detained under the MHA. The court analysis also included consideration of the European Convention on Human Rights, the Mental Health Units (Use of Force) Act 2018 and the concept of residual liberty. The judgment describes principles to be applied when considering whether non-consensual physical health treatment for detained patients could result in a further deprivation of liberty. Discussion of other Court of Protection cases considers the issue of communication during a capacity assessment, the MHA/MCA interface in obstetric cases and what test to apply in determining whether a patient could be detained under the MHA. Such principles and guidance are helpful in clinical practice for healthcare professionals who deal with the MHA/MCA interface.

This is the first of two articles reviewing consent in those under the age of 18 (also referred to as ‘minors’ in UK law). This can be a complex issue in clinical practice because the law endows competent/capacitated minors with the absolute right to accept treatment, but a limited right to refuse. This first article summarises recent cases of refusal of treatment in minors. It uses them to ask two central questions: how do we, as clinicians, think about autonomous self-determination in minors and to what extent does the rights agenda support minors’ autonomous self-determination? Autonomy as one of the principles of biomedical ethics is explored. How the minors’ rights agenda supports the development of autonomy is considered. The amount of weight given in the domestic courts to the rights of minors with reference to the Human Rights Act 1998 and the United Nations Convention on the Rights of the Child is described. These considerations demonstrate the way that the courts are giving the views of the minor greater weight in decision-making in keeping with age and maturity. This article introduces the second article, which comprehensively reviews decision-making in minors, explores competence and capacity in minors and examines the differential treatment of acceptance and refusal.

This is the second of a pair of articles reviewing the topic of consent in minors. Both articles have a particular emphasis, drawing on theory and case law, on the differential treatment of acceptance and refusal in minors. This article considers the concept of capacity in young people (aged 16 and over) and competence in children (under the age of 16) by reviewing underpinning statute and case law with particular reference to England and Wales. This provides a platform for consideration of the reach of capacity in minors with regard to acceptance and refusal of treatment. In doing so the article explores the key, but still elusive, ingredient of maturity, which has significance to the process. Fictitious vignettes allow consideration of the application of the concepts of maturity and autonomy in clinical practice. The article also considers the potential for the UK's Parliament to make changes to current statute regarding consent in minors.

There has been a series of judgments in recent years emanating from the Court of Protection in England and Wales involving sexual relations. One such judgment is unique in that it is the first time the court has assessed capacity in the sexual practice of autoerotic asphyxiation in a person with a diagnosis of autism spectrum disorder. This article reviews the judgment and specifically the key section of the Mental Capacity Act 2005, section 27, which applies to capacity decisions in the context of family relationships, including sexual relationships. The practice of autoerotic asphyxia can be a complex and emotive subject and dangerous to individuals undertaking it. The judgment provides guidance and a framework for applying the Act to assess the capacity of someone practising autoerotic asphyxia that can be used in clinical practice for people with any mental disorder.

The Court of Protection has the legal jurisdiction to make decisions about people who lack capacity to make decisions themselves (in England and Wales). When hearing cases, evidence can be provided to the court by expert witnesses and professionals. The Court of Protection Rules 2017 inform the practice and procedure within the Court of Protection. This article reviews the judgment from a Court of Protection case that analyses the proper role of the expert witness in the court. In doing so the article provides guidance to authors of expert witness reports and reports under section 49 of the Mental Capacity Act 2005 submitted as evidence to the court.

There is much Mental Capacity Act 2005 (MCA) case law emanating from the Court of Protection. This article reviews an important and unique case when the court specifically addressed for the first time the question of fluctuating capacity, a not uncommon clinical problem that can often be complex. It describes how the Court of Protection in Royal Borough of Greenwich v CDM [2019] legally approached an issue of fluctuating capacity in a 64-year-old woman with a personality disorder and chronic diabetes. In doing so it elucidates a new conceptual framework to apply when assessing fluctuating capacity in terms of considering micro- and macro-decisions which can be used in routine clinical practice.

This article reviews a 2017 Court of Protection case which assessed and decided issues relating to the Islamic faith and the Mental Capacity Act 2005. The case involved a 39-year-old Muslim man with learning difficulties. It centred on his ability to make decisions about two specific aspects of his faith – capacity for fasting and for the removal of pubic and axillary hair. The judgment describes how s.4 of the Act was applied in deciding these decisions under the doctrine of best interests. In doing so, it elucidates key principles which can be applied to similar cases of this and other faiths.