Amending the Mental Capacity Act 2005 to provide for deprivation of liberty

This article considers the Government’s legislative proposals against the domestic law background, specifically their relationship with existing detention powers in the Mental Health Act 1983 (MHA) and the provisions already enacted by Parliament in the Mental Capacity Act 2005 (MCA) which expressly do not authorise deprivation of liberty. Consideration is given to whether the proposed amendments to the MCA create undesirable overlap with the existing detention powers under the MHA.The final part of the article questions the Government’s approach to demarcating the boundary between the two detention regimes. It proposes that if MCA detention were confined to those who lack capacity and do not object to their care, compliance with Article 5 could be achieved more simply and at less cost than under the Government’s proposed amendments to the MCA