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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
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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

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