The Mental Health Act 1983 and the Mental Capacity Act 2005

The Mental Health Act (MHA) 1983 is the law which explains the assessment, treatment and rights of individuals with mental health disorders. The Mental Capacity Act (MCA) 2005, sets out how decisions should be made on behalf of adults who lack capacity, and how decision making should be least restrictive and, in the person’s, best interests.

There is frequently an overlap between the MHA and the MCA. This is because patients detained under the MHA sometimes lack the capacity to make decisions for themselves, outside of their treatment for their mental health disorder. For people who are in mental health hospitals, decisions such as whether they should receive treatment for physical health conditions, or where they should live when no longer in hospital, should be made in a person’s best interests, as per the MCA, when the person lacks capacity.  

Deprivation of Liberty Safeguards (DoLS) are an amendment to the MCA and can also apply once a person is no longer detained, as applied for in preparation for discharge. The DoLS framework is used to ensure that any restrictions imposed on an individual are in their best interests. See more information on DoLS HERE.

Patients who are no longer detained but who remain on the ward but do not have the capacity to consent to this, and who are under constant supervision and not be free to leave can be subject to DoLS authorisations. Individuals in the community who are subject to guardianship, Community Treatment Orders (CTOs), and conditional discharges can be subject to DoLS also. 

The overlap between the legislation is often complex and can give rise to many queries from those effected. 

We can help with: 

• Disputes around where a person should live once they leave hospital
• Representation at meetings and in court where an application to deprive someone of their liberty is being discussed
• Understanding what restrictions or options are being considered and why
• Funding disputes and how future care and support needs will be paid for, including section 117 aftercare
• Challenging delays to discharge and future care planning
• Disputing a decision to end section 117 aftercare
• Making a complaint against health services or social care

If you have any queries regarding the Mental Capacity Act 2005 or the Mental Health Act 1983, please get in touch with our team on 01926 354704 or email:  SophyP@moore-tibbits.co.uk