Skip to main content Accessibility help

We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.

Close cookie message
×
Hostname: page-component-cd9895bd7-7cvxr Total loading time: 0 Render date: 2024-12-18T17:39:49.346Z Has data issue: false hasContentIssue false

5.5 - Capacity and Consent in the Criminal and Civil Contexts

from Part V - Civil Proceedings

Published online by Cambridge University Press:  02 December 2021

By
Ailbhe O’Loughlin
Edited by
Jennifer M. Brown  and
Miranda A. H. Horvath
Jennifer M. Brown
Affiliation:
London School of Economics and Political Science
Miranda A. H. Horvath
Affiliation:
University of Suffolk
Get access

Summary

This chapter presents a critical overview of mental capacity in the law of England and Wales, focusing on criminal law, mental health law and mental capacity law and the right to refuse medical treatment. It demonstrates the very different underlying philosophies of the Mental Health Act (MHA) 1983 and Mental Capacity Act (MCA) 2005 and demonstrates that concepts of capacity in the criminal law are out of keeping with current understandings of mental disorder and with the MCA 2005. This is followed by an examination of the special powers to detain and treat mentally disordered offenders under the MHA 1983. Finally, proposals to modernise the criminal law and mental health law are evaluated. It is argued that these reform proposals would go some way towards resolving the problems identified but they do not fully address the challenges of the UN Convention on the Rights of Persons with Disabilities.

Keywords

Mental Capacity LawMental Health LawCriminal LawConsentHuman Rights
Type
Chapter
Information
The Cambridge Handbook of Forensic Psychology , pp. 716 - 734
Publisher: Cambridge University Press
Print publication year: 2021

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Akther, S. F., Molyneaux, E., Stuart, R., Johnson, S., Simpson, A., & Oram, S. (2019). Patients’ experiences of assessment and detention under mental health legislation: Systematic review and qualitative meta-synthesis. British Journal of Psychiatry Open, 5(3), e37–e37.Google Scholar
Alghrani, A., Case, P., & Fanning, J. (2016). Editorial: The Mental Capacity Act 2005 – Ten years on. Medical Law Review, 24(3). 311–317.Google Scholar
Bartlett, P. (2011). “The necessity must be convincingly shown to exist”: Standards for compulsory treatment for mental disorder under the Mental Health Act 1983. Medical Law Review, 19(4), 514–547.Google Scholar
Bartlett, P. (2012). The United Nations Convention on the Rights of Persons with Disabilities and Mental Health Law. Modern Law Review, 75, 752–778.CrossRefGoogle Scholar
Bartlett, P. (2014). Reforming the deprivation of liberty safeguards (DOLS): What is it exactly that we want? Web JCLI, 20(3), Webjcli.org/index.php/webjcli/article/view/355/465.Google Scholar
Bartlett, P., & Sandland, R. (2013). Mental health law: Policy and practice (4th ed.). Oxford University Press.CrossRefGoogle Scholar
Burch, M. (2017). Autonomy, respect, and the rights of persons with disabilities in crisis. Journal of Applied Philosophy, 34(3), 389–402.CrossRefGoogle Scholar
Bradley, K. J. C. (2009). The Bradley Report: Lord Bradley’s review of people with mental health problems or learning disabilities in the criminal justice system. Department of Health.Google Scholar
Callaghan, S., & Ryan, C. J. (2016). An evolving revolution: Evaluating Australia’s Compliance with the Convention on the Rights of Persons with Disabilities in Mental Health Law. University of New South Wales Law Journal, 39(2), 596–624.Google Scholar
Crown Prosecution Service. (2019). Mental health conditions and disorders: Draft prosecution guidance. Crown Prosecution Service. www.cps.gov.uk/publication/mental-health-conditions-and-disorders-draft-prosecution-guidanceGoogle Scholar
Datta, A., & Frewen, J. (2016). Mental health law profile on the Republic of Ireland. British Journal of Psychiatry International, 13(1), 15–17.Google Scholar
Davies, P. S. (2018). Capacity. In Smith, J. C. (Ed.), The law of contract (2nd ed.). Oxford University Press.Google Scholar
Department for Constitutional Affairs. (2007). Mental Capacity Act 2005 code of practice. TSO.Google Scholar
Department of Health. (2015). Mental Health Act 1983: Code of practice. TSO.Google Scholar
Department of Health and Social Care (2018). Modernising the Mental Health Act: Increasing choice, reducing compulsion. Final report of the Independent Review of the Mental Health Act 1983 (The Wessely Review). Department of Health and Social Care. www.gov.uk/government/publications/modernising-the-mental-health-act-final-report-from-the-independent-reviewGoogle Scholar
Dinenage, C. (2019). Letter from Minister of State for Care to Members of Parliament 10 June 2019. London: House of Commons Library. http://data.parliament.uk/DepositedPapers/Files/DEP2019-0635/letter_from_Caroline_Dinenage_Liberty_Protection_Safeguards.pdfGoogle Scholar
Freeman, M. C., Kolappa, K., Caldas de Almeida, J. M., Klienman, A., Makhashvili, N., Phakathi, S., Saraceno, B., & Thornicroft, G. (2015). Reversing hard won victories in the name of human rights: A critique of the General Comment on Article 12 of the UN Convention on the Rights of Persons with Disabilities. The Lancet, 2(9), 844–850.Google ScholarPubMed
Hale, B. (2017). Mental health law (6th ed.). Sweet & Maxwell.Google Scholar
Haw, C., Stubbs, J., Bickle, A., & Stewart, I. (2011). Coercive treatments in forensic psychiatry: A study of patients’ experiences and preferences. Journal of Forensic Psychiatry & Psychology, 22(4), 564–585.CrossRefGoogle Scholar
HM Chief Inspector of Prisons. (2019). Annual report 2018–19. House of Commons.Google Scholar
House of Commons Committee of Public Accounts. (2017). Mental health in prisons: Eighth report of session 2017–19. House of Commons.Google Scholar
Khan, N. N., Yahya, B., Bakar, A. K. A., & Ho, R. C. (2015). Malaysian mental health law. British Journal of Psychiatry International, 12(2), 40–42.Google Scholar
Law Commission. (2010). Unfitness to plead: A consultation paper (Consultation Paper No. 197). The Stationery Office.Google Scholar
Law Commission. (2012). Insanity and automatism: Supplementary material to the scoping paper. The Stationery Office.Google Scholar
Law Commission. (2013) Criminal liability: Insanity and automatism. A discussion paper. The Stationery Office.Google Scholar
Law Commission. (2016a). Unfitness to plead: Vol. 1. Report. HM Stationery Office.Google Scholar
Law Commission. (2016b). Unfitness to plead: Vol. 2. Draft legislation. HM Stationery Office.Google Scholar
Law Commission. (2017). Mental Capacity and Deprivation of Liberty (Law Com No. 372). HM Stationery Office.Google Scholar
Loughnan, A. (2012). Manifest madness: Mental incapacity in the criminal law. Oxford University Press.Google Scholar
Mackay, R., & Mitchell, B. (2017). The new diminished responsibility plea in operation: Some initial findings. Criminal Law Review, 1, 18–35.Google Scholar
Mackay, R. D. (1990). Fact and fiction about the insanity defence. Criminal Law Review, April, 247–255.Google Scholar
Mackay, R. D. (1995). Mental condition defences in the criminal law. Clarendon Press.Google Scholar
Mackay, R. D. (2014). The insanity defence in operation. Northern Ireland Legal Quarterly, 65, 153–166.Google Scholar
Mackay, R. D. (2016). Unfitness to plead: Appendix A unfitness to plead – Data on formal findings from 2002 to 2014. Law Commission.Google Scholar
Mackay, R. D., Mitchell, B. J., & Howe, L. (2007, July). A continued upturn in unfitness to plead – More disability in relation to the trial under the 1991 Act. Criminal Law Review, 530–545.Google Scholar
Merkin, R., & Saintier, S. (2019). Intention to be legally bound, formalities, and capacity to contract. In Poole’s textbook on contract law (14th ed.). Oxford University Press.Google Scholar
Ministry of Justice. (2017). Safety in custody statistics bulletin, England and Wales, deaths in prison custody to December 2016, assaults and self-harm to September 2016. Ministry of Justice.Google Scholar
Ministry of Justice. (2019). Safety in custody statistics, England and Wales: Deaths in prison custody to June 2019 assaults and self-harm to March 2019. Ministry of Justice.Google Scholar
Okai, D., Owen, G., McGuire, H., Singh, S., Churchill, R., & Hotopf, M. (2007). Mental capacity in psychiatric patients: Systematic review. British Journal of Psychiatry, 191(4), 291–297.CrossRefGoogle ScholarPubMed
Ormerod, D., & Laird, K. (2018). Mental conditions, intoxication and mistake. In Smith, Hogan & Ormerod’s criminal law (15th ed.). Oxford University Press.Google Scholar
Peay, J. (2015). Mental incapacity and criminal liability: Redrawing the fault lines? International Journal of Law and Psychiatry, 40, 25–35.Google Scholar
Peay, J. (2016). Responsibility, culpability and the sentencing of mentally disordered offenders: Objectives in conflict, Criminal Law Review, 3, 152–164.Google Scholar
Scholten, M., & Gather, J. (2018). Adverse consequences of article 12 of the UN Convention on the Rights of Persons with Disabilities for persons with mental disabilities and an alternative way forward. Journal of Medical Ethics, 44(4), 226–233.Google Scholar
Select Committee on the Mental Capacity Act 2005. (2014). Mental Capacity Act 2005: Post-legislative scrutiny (HL Paper No. 139). The Stationery Office.Google Scholar
Senon, J. L., Jonas, C., & Botbol, M. (2016). The new French mental health law regarding psychiatric involuntary treatment. British Journal of Psychiatry International, 13(1), 13–15.Google Scholar
Stavert, J. (2018). Paradigm shift or paradigm paralysis? National mental health and capacity law and implementing the CRPD in Scotland. Laws, 7(3), 26.CrossRefGoogle Scholar
Szmukler, G., Daw, R., & Callard, F. (2014). Mental health law and the UN Convention on the Rights of Persons with Disabilities. International Journal of Law and Psychiatry, 37(3), 245–252.Google Scholar
UN Committee on the Rights of Persons with Disabilities. (2014). General comment No. 1 (2014) Article 12: Equal recognition before the law. United Nations. www.ohchr.org/en/hrbodies/crpd/pages/gc.aspxGoogle Scholar
UN High Commissioner for Human Rights. (2009, January 26). Annual report (A/HRC/10/48). Author.Google Scholar
Wilson, K. (2018). The call for the abolition of mental health law: The challenges of suicide, accidental death and the equal enjoyment of the right to life. Human Rights Law Review, 18(4), 651–688.Google Scholar
Wilson, K. E. (2020). The abolition or reform of mental health law: How should the law recognise and respond to the vulnerability of persons with mental impairment? Medical Law Review, 28(1), 30–64.Google Scholar
Zielasek, J., & Gaebel, W. (2015). Mental health law in Germany. British Journal of Psychiatry International, 12(1), 14–16.Google Scholar

Save book to Kindle

To save this book to your Kindle, first ensure [email protected] is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×