Developing a capacity test for compulsion in mental health law

Authors

  • Chris Heginbotham University of Central Lancashire
  • Mat Kinton

DOI:

https://doi.org/10.19164/ijmhcl.v1i15.202

Abstract

Concepts of mental capacity are taking on an increased importance in the mental health law of the United Kingdom. For England and Wales, the proposal to introduce a threshold requirement of ‘impaired decision-making’ into the criteria for detention under sections 2 and 3 of the Mental Health Act 1983 was the first amendment to be voted upon in the House of Lords’ reading of the Mental Health Bill. Despite its emphatic (and whipped) resistance to this amendment, Government lost the vote by a wide margin, although it seems possible, at the time of writing, that the Government will seek to overturn their defeat in the Commons.

It is therefore timely to re-examine the role of such capacity tests in mental health legislation dealing with detention and treatment. This paper describes as yet unresolved definitional questions that must be encountered when concepts of mental capacity operate as a threshold for coercive psychiatric detention and/or treatment.

Author Biographies

Chris Heginbotham, University of Central Lancashire

Professor of Mental Health Policy and Management, University of Central Lancashire and Chief Executive, Mental Health Act Commission

Mat Kinton

Senior Policy Analyst, Mental Health Act Commission

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Published

2014-09-05

Issue

Section

Articles and Comment