The new Mental Health Act 2007 creates more rights for people with learning disabilities through its amendment of the Mental Capacity Act 2005. It introduces safeguards for deprivation of liberty, both for patients lacking capacity in hospital and residents of care homes.

This is surely a good thing, and may finally end the confusion following the Bournewood case, where the case of a patient without capacity being kept in hospital was challenged.

However, despite changing the way mental disorder was defined in the Mental Health Act 1983 by abolishing references to categories of disorder, a person with a learning disability can still be sectioned if it is deemed they behave abnormally aggressively or seriously irresponsibly, without any signs of mental illness, unlike the rest of the general public.

Although this may at times provide a preferable alternative to the criminal justice system, many in-patients will remain in hospital purely on the grounds of some antisocial or criminal behaviour. They may well not pass a new ‘appropriate medical treatment’ test and often their original behaviour continues on the units, with little possible in the way of consequences to deter them.

The private sector has perhaps stolen a march on much of the National Health Service by creating expensive specialist services for these people. With the advent of the new Act, is it time to start catching up?