Mental Capacity Diss

School of Law
PGT Dissertation Cover Sheet
This sheet must be filled in and attached to each of the TWO copies of the dissertation
submitted.
Anonymous Code:
Dissertation Supervisor: Dr Mark flear
Dissertation Title: ‘Mental capacity Bill: Considerations for Northern Ireland and the
implementation of such legislation
Actual word count (including footnotes but not bibliography or appendices) 19047
Stated submission deadline 16/09/2013
Date handed in 05/09/2013
Certification: I certify that the attached work is entirely my own, and that all material which
is not my own has been appropriately quoted and referenced. I understand that plagiarised
work may result in a mark of zero and lead to serious disciplinary measures. I agree that my
work may be submitted to anti-plagiarism databases and will provide an electronic copy of
this work if requested.
Please tick this box to agree to this statement: ¨
Ethics Approval: I certify that Ethics approval was granted by the School Ethics Committee
prior to completing the Dissertation.
Please tick this box to agree to this statement: ¨

Acknowledgements:
I would like to thank Dr Mark Flear and Dr Rory McConnell who where my project supervisors. Both
provided me with feedback on my topic and were very helpful throughout its creation.
2|Page
Abstract
Mental capacity refers to the ability to make a particular decision at the time when it needs to
be made. The current approach to mental capacity is interesting; it is interesting in the sense
that there is currently no specific legislation covering mental capacity within Northern
Ireland. This is contrary to other parts of the UK. Other influences include Article 12 of the
UN Convention on the Rights of Persons with Disabilities says that people with disabilities
have a right to equal recognition before the law. This means disabled people have the right to
make decisions about their lives. Overall the aim of new legislation in Northern Ireland is to
try and eliminate the discrimination which can presently be found within the current legal set
up in England and Wales (Mental Capacity Act 2005 and the Mental Health Act 2007).
3|Page
Contents
Introduction Overview: .......................................................................................................................... 5
Methodology ...................................................................................................................................... 7
Use of Internet resources: .............................................................................................................. 8
Chapter One Mental capacity overview: .............................................................................................. 10
Historical overview: .......................................................................................................................... 16
Chapter Two Current approach to Mental Capacity law within Northern Ireland:.............................. 19
United Nations Convention on the Rights of Persons with Disabilities ............................................ 21
Bamford Review ............................................................................................................................... 25
Chapter Three Mental Capacity Act 2005 England and Wales: ............................................................ 28
MCA 2005 interaction with Mental Health legislation: .................................................................... 30
Fusion Model the solution to discrimination which can occur between the interaction of the MCA
and MHA?......................................................................................................................................... 35
MCA relationship to the CRPD and addressing the safeguard problems regarding legislation: ...... 39
Conclusion: ....................................................................................................................................... 49
Bibliography ......................................................................................................................................... 53
Appendices ........................................................................................................................................... 59
4|Page
Introduction Overview:
When the Bamford Review of Mental Health and Learning Disability completed its work in
the autumn of 2007, it drew to a close an extensive consultation and analysis of mental health
and learning disability services and the law in Northern Ireland. Its last report on A
Comprehensive Legislative Framework made a compelling case for a major overhaul of the
law that the Review team itself described as 'quite radical'1. The report recommended a single
legislative framework for the reform of the Mental Health (Northern Ireland) Order 1986 and
the introduction of new mental capacity legislation broadly in line with the Mental Capacity
Act 2005 that applies in England and Wales. The philosophy of Professor Bamford's
recommendations was really that people who have the capacity to make a decision about their
treatment or their welfare should be allowed to do so. Where they do not have that capacity
to make a specific decision relating to their welfare, healthcare or financial matters, the Bill
will set out a legal framework for making decisions and carrying out actions.
The aim of this thesis is to explore the issues surrounding the implementation of such
legislation. Chapter one of this thesis provides an historical explanation of what is considered
mental capacity and how legislation and courts approached the topic. The aim of this chapter
is to explore how the idea of mental capacity is perceived in the eyes of legislation, and the
impact which this lack of capacity has on the judgement of the person to make decisions.
Some authors find the topic of capacity “problematic”2, because it overlaps heavily with
people who are considered mentally ill in the conventional sense; yet, it also concerns people
who are not mentally ill because of certain factors, for example a stroke. This theme is very
much present through the writing of this thesis. This chapter introduces the idea that a person
should be able to make their own decisions on a par with the general public, and explores
why this hasn’t always been the case. This chapter concludes with need for sound legislation
to help guide the courts and other stakeholders in the preserving of capacity and in turn
ensuring the autonomy of the person in question.
Chapter two explores the current approach to mental capacity in Northern Ireland, and that
being that currently there is no specific legislation covering mental capacity. At present the
mental capacity is government by a combination of common law and the Mental Health
1
The Bamford Review, A Comprehensive Legal Framework, Executive Summary, August 2007
2
P Bartlett and R Sandland, Mental health law policy and practice (3rd, Oxford University Press, Oxford 2007)
497
5|Page
(Northern Ireland) Order (1986). The chapter explores the problems currently found in this
approach that being with a common law approach the courts make the decision, yet, may not
be in the best position to make said decision. It also concludes that the Mental Health
(Northern Ireland) Order (1986), is a very powerful piece of legislation, and in certain terms
is seen as too powerful because it has the power to take away an individual’s rights; for
example to treat them against their will and to deprive them of their liberty. This chapter also
introduces a new approach to the thinking about capacity with legislation called the
Convention on the Rights of Persons with Disabilities. The Convention follows decades of
work by the United Nations to change attitudes and approaches to persons with disabilities. It
takes to a new height the movement from viewing persons with disabilities as "objects" of
charity, medical treatment and social protection towards viewing persons with disabilities as
"subjects" with rights, who are capable of claiming those rights and making decisions for
their lives based on their free, and informed consent as well as being active members of
society. The Convention is intended as a human rights instrument with an explicit, social
development dimension. It adopts a broad categorization of persons with disabilities and
reaffirms that all persons with all types of disabilities must enjoy all human rights and
fundamental freedoms. It clarifies and qualifies how all categories of rights apply to persons
with disabilities and identifies areas where adaptations have to be made for persons with
disabilities to effectively exercise their rights and areas where their rights have been violated,
and where protection of rights must be reinforced. Article 12 of the Convention will be of
most focus within this thesis; Article 12 of the UN Convention on the Rights of Persons with
Disabilities says that people with disabilities have a right to equal recognition before the law.
This means disabled people have the right to make decisions about their lives. This piece of
legislation has a significant impact on all future legislation, and this can be seen in the final
part of this chapter when the Bamford Review itself is considered.
Chapter three provides a comparison. It examines other countries approach to mental capacity
legislation, in this case England and Wales, this legislation is called the Mental Capacity act
2005. This thesis highlights the current flaws present within this framework, mainly arising
around the interaction with the mental health legislation present in the country and also the
safeguards protecting the person who is seen to lack capacity. The argument presented in this
thesis presents the advantages of ‘fusion legislation’ which is seen to combat many of the
flaws which are currently found within England and Wales. The need for adequate safeguards
6|Page
when it comes to depravation of liberty is also addressed, if a model similar to that of the
Mental Capacity Act 2005 is considered for use in Northern Ireland then this will result in a
complex system which will only result in people’s rights being removed incorrectly.
The conclusion aims to summarise the thesis and to conclude on the findings which have
been discussed. In general the argument for implementation of mental capacity law in
Northern Ireland will focus on the idea of a fusion approach. It will also stress the importance
of safeguards because, although the idea of substituted decision making is “frowned on” in
many academic circles at present, it seems illogical to remove this type of decision-making
completely.
Methodology
The aim of this thesis is to identify mental capacity issues, problem areas and successes in the
practical application of mental capacity legislation as well as identify gaps in the research.
The research was focused on the area of concern which arises around the issues which were
of concern to implementation in Northern Ireland. Emergent themes were derived from the
body of literature which may contribute to an understanding of the application of mental
capacity legislation at the ground level, as well as from more theoretical perspectives. The
main focus was to obtain meta-reviews and high quality peer-reviewed papers on issues
related to Northern Ireland, the UN Convention on the Rights of Persons with Disabilities and
the Mental Capacity Act 2005. These were obtained by searching a number of databases
which relate from varying disciplines to issues within implementing the MCA. Although the
thesis was primarily interested in Northern Ireland, the UN Convention on the Rights of
Persons with Disabilities and the Mental Capacity Act 2005, current literature from other
countries was included where they contribute learning about mental capacity issues; mainly
this was discussion around European case law.
The thesis aim was to analyze with the objective of discovering how the mental capacity was
viewed and developed through the years to a point when it became legislation. Guided by
previous research and the interest in mental capacity, broad issues become apparent:
7|Page
1. Mental capacity needs structured legislation to help combat the complexity of subject
area
2. Mental capacity in the past was very much based on the idea of substitute decisions
being made on behalf of the person who was found to lack capacity
3. Various outside legislative bodies are starting to realise the importance of mental
capacity
4. Currently the legislation which is in place has not, in terms of certain situations,
addressed the concerns of the past
5. Finally that there may have to be compromises on various levels in order to create
“good” mental capacity legislation
These issues were present in initial secondary research which was found through library
based reading, articles of interest were then located through internet based research.
Use of Internet resources:

Throughout this study internet resources will be used to support and contribute to the overall
findings. Such resources which will be used are internet journals which will provide
secondary research material. Most of the articles were obtained through searches in
September 2011 and the following databases were used:
• JSTOR
• ScienceDirect
• HeinOnline
• Queens University Database
• WestLaw
• Google Scholar
Within these databases certain search terms included:

• “mental capacity”
• “mental competence”
• “consent/treatment consent”
• “mental incapacity”
8|Page
• “patient decision-making”
• “best interest decision making”
• “history of mental capacity”
• “mental capacity legislation review”
• “Northern Ireland mental capacity legislation”
• “mental capacity act 2005”
• “UN Convention on the Rights of Persons with Disabilities”
To expand on internet resources up to date respected law magazines and respected blog will
be used to provide additional current thinking on areas in question to give a multiple level
approach to the research topic as a whole.
9|Page
Chapter One Mental capacity overview:
“No individual in any society is truly independent of the influence of others. Social
structures and hierarchies, the need for positive attention, economic necessities, and
the complexity of many financial, healthcare and personal decisions often make non-
disabled and disabled citizens dependent on others for support in making decisions.
Examples are financial consultants, medical doctors, architects and all the other
professions that provide expertise to all citizens. Many people take decisions for
themselves that are also not in their best interest. Often they are determined by
factors that are not logic-based: commercial advertisements, the wish for social
status, the preference for nice fast cars, etc. Disabled or not, all persons have the
right to make mistakes”3
Everyone has the right to make their own mistakes, and everyone makes decisions based on
influences from others. The idea is that people are entitled to accept the advice of these
influences and then base their own decisions on that influence. The key element to take from
this is that there is an ability to undertake said decision; the area of discussion arises when the
person in question may be unable to make that decision.
Mental capacity refers to the ability to make a particular decision at the time when it needs to
be made. The law says that someone lacking capacity cannot do one or more of the following
four things4:
1. They cannot understand information given to them

2. Retain that information long enough to be able to make a decision
3. Weigh up the information available to make a decision
4. Be able to communicate their decision
Capacity is said to be key to a person’s autonomy.5In order for consent to be valid, the person
must be competent to make the decision. In general terms, a person has capacity if they are
3
Equal recognition before the law and equal capacity to act: understanding and implementing Article 12 of the
UN Convention on the Rights of Persons with Disabilities EDF Position paper - October 2009: available at:
http://cms.horus.be/files/99909/MediaArchive/library/EDF_positon_on_equal_recognition_before_the_law_
under_Article12_UNCRPD.doc
4
Mental Health Foundation Website. What is mental capacity? Available online at:
http://www.amcat.org.uk/what_is_mental_capacity/
5
Assessing decision-making capacity: children under 16. Nurse Prescribing. Vol 6, No 6. p266
10 | P a g e
able to comprehend, retain, use and weight the information in the decision-making process,
and to communicate their decision6
It important to realise that that people may lack the capacity to make some decisions for
themselves but may have the capacity to make other decisions, i.e. people could process the
capacity to make simply more mundane decisions but may not have the capacity to evaluate
and understand a more complex decision for example a financial decision or other decisions
of that nature.
It also has to be considered that mental capacity can be affected only temporarily, meaning
that the person who has been affected could be able to make decision at a later date.
Alternatively, it may be because at the time the decision needs to be made, they are
unconscious or barely conscious whether due to an accident or being under anaesthetic or
their ability to make a decision may be affected by the influence of alcohol or drugs.
Another consideration around capacity is in terms of people who have a condition that may
currently affect their decision making ability, but who may have the ability to learn new skills
in order to possibly undertake these decisions in the future
Some authors find the topic of capacity “problematic”7, because it overlaps heavily with
people who are considered mentally ill in the conventional sense; yet, it also concerns people
who are not mentally ill because of certain factors, for example a stroke. In the case of RE S
(Hospital Patient: court’s Jurisdiction)8 , S, aged 76, was a Norwegian citizen who had, in
1991, set up house with his companion (the plaintiff) in England. In 1993 he suffered a severe
and disabling stroke. The plaintiff arranged for S to have treatment and care at a private
hospital where she visited him regularly. His wife and only son wished for him to be returned
to Norway to be cared for in a nursing home there. Hale, J. ruled that the court had
jurisdiction to grant the plaintiff declaratory relief in respect of S's future care and granted an
interlocutory injunction restraining S's removal to Norway pending trial of the substantive
cause. The wife and son appealed, arguing that the court had no jurisdiction to grant relief to
the plaintiff against themselves. It was held, dismissing the appeal that recent cases in which
declaratory relief had been granted showed that the court could intervene to determine the
6
DHSSPS (2003) Reference Guide to consent for examination, treatment or care, p3.
7
497
8
[1995] 3 All ER 290 (CA)
11 | P a g e
best interests of persons who, like S in the present case, lacked the capacity to express their
own preference.
The RE S (Hospital Patient: court’s Jurisdiction) case is very interesting because from the
case it can be seen that even though someone like S may not in typical terms fall into the
realm of mental health law, the fact that there is a mental capacity issue means that the person
will fall under the umbrella of the same legal provisions in regards to mental capacity9. In the
broader aspect of the subject incapacity is not assumed or coincides with the diagnosis of a
mental disability, in fact people with mental disabilities are presumed to be competent until
shown otherwise. Consider the case of Re C (Adult: Refusal of Medical Treatment)10 A
patient whose mental capacity to refuse an operation had not been so impaired as to render
him incapable of understanding the purpose of the treatment was entitled to an injunction to
prevent it. The patient was diagnosed as a chronic paranoid schizophrenic while serving a
sentence of imprisonment and was transferred to a secure hospital. He was found to be
suffering from an ulcerated foot which became gangrenous and was transferred to a general
hospital where a surgeon advised amputation below the knee, failing which his chances of
survival were small. He refused consent to that treatment but allowed conservative treatment
and his condition improved. However, the hospital refused to give an undertaking that the leg
would not be amputated at some future time. He applied for an injunction to prevent
amputation without his written consent. In this case Thorpe J. considered it helpful in
applying Dr. Eastman's analysis of the decision-making process into three stages: first,
comprehending and retaining treatment information, second, believing it and, third, weighing
it in the balance to arrive at choice. Having applied this test Thorpe J stated the following:
Applying that test to my findings on the evidence, I am completely satisfied that the
presumption that Mr C has the right of self-redetermination has not been displaced.
Although his general capacity is impaired by schizophrenia, it has not been
established that he does not sufficiently understand the nature, purpose and effects of
the treatment he refuses. Indeed, I am satisfied understanding the nature, purpose and
9
View point shared by P Bartlett and R Sandland in their book: P Bartlett and R Sandland, Mental health law
policy and practice (3rd, Oxford University Press, Oxford 2007) 497
10
[1994] 1 All ER 819
12 | P a g e
effects of the treatment information that in his own way believes it and that in the
same fashion he has arrived at a clear choice11.
The above makes sense when the Mental Capacity Act 2005 Code of Practices12 definition of
“lacking capacity” is applied:
When the term ‘a person who lacks capacity’ is used, it means a person who lacks
capacity to make a particular decision or take a particular action for themselves
at the time the decision or action needs to be taken.13
From the points mentioned above it can be seen the importance of “at the time the decision or
action needs to be taken”, this gives the idea that the decision is not taken from the person at
a premature time or for an indefinite period of time, but at a exact time when the decision
deemed is necessary. The idea of removing the decision making process from the person for
an indefinite period of time is contrary to human rights. Denzil Lush14 makes an interesting
point. He argues that just because a person may be suffering from a condition could restrict
their “ability to govern”15 or to make independent choices, if there is a basic ability to
consider the options and make choices, there has to be a very limited interference with their
will. He furthers his argument by suggesting that if there was inference against their decision
and therefore their will, it would be showing them “less respect”16 if they had made their own
decision albeit even it lead to a mistake, as mentioned before people with full capacity who
based their decisions on outside influence can lead to mistakes. Overall the point which
Denzil Lush was making is that just because a condition may be present this does not justify
the removal of decision making privileges17.
11
Ibid via Thorpe J; Thorpe J test was approved by the court of appeal a few years later in the case of Re
MB(an Adult: Medical treatemenet) (1997) 38 BMLR 175 (CA)
12
Mental Capacity Act 2005 Code of Practices: available at
http://www.direct.gov.uk/prod_consum_dg/groups/dg_digitalassets/@dg/@en/@disabled/documents/digital
asset/dg_186484.pdf
13
Ibid, pg3
14
Denzil Lush, The Mental Capacity Act and the new Court of Protection, J. Mental Health L, 2005, 31
15
Ibid pg 34
16
Ibid
17
The prime principle which underpins both current law and medical practice with regards to issues of mental
capacity is, as the Law Commission for England and Wales has stated, that people should be “enabled and
encourage to take for themselves those decisions which they are able to take” see: Law Commission Mental
incapacity London: HHMSO, 1995 (Law Com No 231) para 2.46; also consider the case of re T (Adult: Refusal of
Treatment), [1993] Farn. 95 (Eng.) English judges have emphasized that the right not to be treated against your
13 | P a g e
The complex nature of this idea that people with a mental health problem can be seen to have
the capacity and the right to make their own decisions is still an area for discussion, for
example consider the recent case of Re SB (A patient; capacity to consent to
termination)18this case involved a 37-year-old, who is 23 weeks pregnant and suffers from
bipolar disorder, an illness marked by sharp mood swings and depression. She suffers
“persecutory and paranoid delusions” 19about her mother, her husband and social services and
has threatened to kill herself if she is prevented from having a termination20, the Court of
Protection in London has heard. She has consistently asked for a termination for several
weeks and has sought one in a number of ways. The court heard that up to a point she had
“acted in the caring and conscientious way of any mother who is expecting a wanted baby”.21
Soon after this she stopped taking her medication and decided she wanted a termination; at
this stage the NHS trust responsible for her care has asked the court to determine whether she
lacks the capacity to make a decision and, if so, whether a termination is “in her best
interests”. They stated their concern:
They all note an association between that change in position and the patient ceasing to
take her medication and displaying a relapse in her illness, coupled with what is said
to be paranoid ideas about her husband and mother in the last six or eight weeks. Thus
Dr Smith said "there is a strong temporal relationship between the patient stopping
medication, developing paranoid ideas about her husband or mother and deciding to
opt for a termination of her pregnancy.22"
As can be seen the question once again arises surrounding the mental capacity of a person
with a mental illness and their ability to make decisions. In this case the judge recognises and
accepts that there is a mental illness present:
I wish to make crystal clear that I do not in any way whatsoever question or reject the
evidence of either Dr T or Dr Smith in so far as it is evidence within their professional
domain. I unreservedly accept that the patient is currently mentally unwell, and I
will may be exercised even if the reasons for the decision are "rational, irrational, unknown or even non-
existent." This is expanded further in the case of R (Burke) v. Gen. Med. Council, [2005] EWCA 1003 (Eng.) at
61: that the right exists even if the decision will lead to death. '
18
[2013] EWHC 1417 (COP)
19
Re SB (A patient; capacity to consent to termination) [2013] EWHC 1417 (COP) para 32
20
Re SB (A patient; capacity to consent to termination) [2013] EWHC 1417 (COP) Para 43
21
Re SB (A patient; capacity to consent to termination) [2013] EWHC 1417 (COP) Para 20
22
Re SB (A patient; capacity to consent to termination) [2013] EWHC 1417 (COP) Para 34 via MR JUSTICE
HOLMAN
14 | P a g e
accept their diagnosis. I unreservedly accept, therefore, that she does currently suffer
"an impairment of, or a disturbance in the functioning of, the mind or brain."23
This shows a recognition that mental illness can have the potential to affect the decision
making process of person through the symptoms which may present themselves as a result of
said illness. But in this case Mr Justice Holman held that these symptoms did not justify the
removal of the autonomous decision making of the patient:
“It seems to me, therefore, that even if aspects of the decision making are influenced
by paranoid thoughts in relation to her husband and her mother, she is nevertheless
able to describe, and genuinely holds, a range of rational reasons for her
decision……….. It seems to me that this lady has made, and has maintained for an
appreciable period of time, a decision. It may be that aspects of her reasons may be
skewed by paranoia. There are other reasons which she has and which she has
expressed. My own opinion is that it would be a total affront to the autonomy of this
patient to conclude that she lacks capacity to the level required to make this decision.
It is of course a profound and grave decision, but it does not necessarily involve
complex issues. It is a decision that she has made and maintains; and she has defended
and justified her decision against challenge. It is a decision which she has the capacity
to reach.”24
This judgement enforces the fact that the presence of a mental illness is not an instant factor
which justifies the removal of decision making powers albeit, the situation i.e. the facts
surrounding the case will be valuable. Lawyers have the responsibility to ensure the
protection of people who are incapable of deciding matters for themselves and to promote the
choices of those who can and should regulate their own lives25.
23
Re SB (A patient; capacity to consent to termination) [2013] EWHC 1417 (COP) Para 37 via MR JUSTICE
HOLMAN
24
[Re SB (A patient; capacity to consent to termination) 2013] EWHC 1417 (COP) Para 44 via MR JUSTICE
HOLMAN
25
Assessment of mental capacity Guidance for Doctors and lawyers (British medical association and the law
society, 2nd ed, 2004, BMJ Publishing Group) 3
15 | P a g e
Historical overview:
Up until 1959, it was the doctrine of parens patriae which provided the legal basis for
surrogate decision-making on behalf of incapacitated adults. The expression (which literally
means “the parent of the country‟) refers to the Crown’s power and duty to protect the
persons and property of those unable to do so for themselves, including both the category of
minors and persons of unsound mind.26 This ancient jurisdiction, codified at the beginning of
the fourteenth century, gave the Crown the power and responsibility to manage the estates
and persons of ‘lunatics’ and ‘idiots’.27This shows that parens patriae was much more than
merely a ‘fiscal prerogative’28, this was in fact address by Sir Edward Coke, for example, in
Beverley's Case (1603) states that, in the case of an idiot or fool natural, [...] the law has
given the custody of him, and all that he has, to the King29. This in the context of this paper is
of a very historical nature but the emphasis which needs to be drawn from this is that parens
patriae commits the care of [a non compos30] person, with a suitable allowance for his
maintenance, to some friend, who is then called his committee. Historically it can be seen that
mental capacity was an area of discussion/debate which also could lead to the person in
question having decision making privileges removed. An issue which had to be addressed
was if the decision making ability was removed from the person, would the person who was
appointed make the decisions in the best interest of the person, to prevent sinister practices
within parens patriae, the next heir is never permitted to be this committee of the person;
because it is his interest that the party should die. The heir is generally made the manager or
committee of the estate, it being clearly his interest by good management to keep it in
condition.31 What this paper is trying to establish here using the historical view point is the
importance of the decisions being made in the interest of the person who has not got the
capacity to make the decisions him/herself.
The move towards the Mental Capacity Act as known today was started in the case of Re F
(Mental patient sterilisation)32. In this case, F, 36, was a seriously mentally disabled woman
26
Re F [1990] 2 AC 1 p. 57 (opinion of Lord Brandon of Oakbrook).
27
499
28
Best interests decision-making under the Mental Capacity Act The Essex Autonomy Project Green Paper
Technical Report Lead Author: Antal Szerletics
29
Beverley’s Case 4 Coke‟s Rep. 126b, 76 E.R. 1118 (at p. 1124) as quoted in para. 40 of E. (Mrs.) v. Eve [1986]
2 S.C.R. 388 (La Forest JJ).
30
Non compos mentis is a term meaning "not of sound mind".
31
Sir William Blackstone, Commentaries on the Laws of England (1765-1769), Book 1, Chapter 8, Branch 18.
Available at http://www.lonang.com/exlibris/blackstone/
32
[1990] 2 AC 1
16 | P a g e
with the mental capacity of a five-year-old child. She lived in a mental hospital, where she
had formed a sexual relationship with another patient, and as a result her mother argued that
she should be sterilised. Her mother and medical staff at the hospital were concerned that she
would not cope with pregnancy and child birth and would not be able to raise a child herself.
Other methods of contraceptives were not practical for her. They sought a declaration that it
would be lawful for her to be sterilised. F was incapable of giving valid consent since she did
not appreciate the implications of the operation.
It was held under the common law doctors were able to operate on adults unable to consent
to or to refuse treatment by reason of emergency or mental disability if the treatment was in
the patient's best interest. Although court involvement was not strictly necessary, the court
should be consulted where sterilisation was the operation under consideration due to its
special characteristics and effects. Lord Griffiths emphasised
The common law has, in the public interest, been developed to forbid the infliction of
injury on those who are fully capable of consenting to it. The time has now come for a
further development to forbid, again in the public interest, the sterilisation of a woman
with healthy reproductive organs who, either through mental incompetence or youth,
is incapable of giving her fully informed consent unless such an operation has been
enquired into and sanctioned by the High Court………. I would myself declare that
on grounds of public interest an operation to sterilise a woman incapable of giving
consent either on grounds of age or mental incapacity is unlawful if performed
without the consent of the High Court.33
It was also held in this case that neither the parens patriae jurisdiction, nor the Mental Health
Act 1983 Part 7, nor RSC Ord.80 were appropriate to confer jurisdiction. Lord Goff
expressed concern that:
...there is no English authority on the question whether as a matter of common law

(and if so in what circumstances) medical treatment can lawfully be given to a person
who is disabled by mental incapacity from consenting to it. Indeed, the matter goes
further; for a comparable problem can arise in relation to persons of sound mind who
are, for example, rendered unconscious in an accident or rendered speechless by a
33
Ibid via Lord Griffiths
17 | P a g e
catastrophic stroke.... In the case of mentally disordered persons, they may require
care of a more basic kind - dressing, feeding, and so on - to assist them in their daily
life, as well as routine treatment by doctors and dentists.34
The problem which a case like this raised, as highlighted by Lord Goff, was that there was a
significant lack of statutory provisions. Bridgit Dimond argues that this lack of statutory
provisions forced the courts to make declarations on the absence of mental capacity, and to
determine what actions ‘appear’ to be in the best interests of the mentally incapacitated
person on the basis of existing case law or the common law35. Another problem Bridgit
highlighted was the fact that once the patient went above the age of eighteen, there was no
statutory right for a person to make care/treatment decisions on behalf of the mentally
incapacitated person, this principle included the parent/guardians of the person who no longer
had the right to make decisions once the person turned 1836.
Statutory provisions provide“clarity”37 and provide the courts with “details”38, which may be
lacking when making certain decisions surrounding the mental capacity of the person. 39
34
Ibid via Lord Goff
35
B Dimond , Legal Aspects of Mental Capacity (1st, Blackwell Publishing , Oxford 2008) 14
36
ibid
37
ibid
38
ibid
39
Other cases worth mentioning are: Airedale National Health Service Trust v Bland, [1993] 1 All ER 821; and
Norfolk v Norwich Healthcare (NHS) Trust [1996] 2 FLR 613; both cases show the consideration the courts gave
when deciding mental capacity and the decisions surrounding the providing of treatment on behalf of a person
with a mental capacity issue. These cases occurred after the case of Re F (Mental patient sterilisation) [1990] 2
AC 1, and therefore resulting in the conclusion in Re F (Mental patient sterilisation) have more of an influence
in the case which followed it
18 | P a g e
Chapter Two Current approach to Mental Capacity law within
Northern Ireland:
The current approach to mental capacity is interesting; it is interesting in the sense that there
is currently no specific legislation covering mental capacity. This is contrary to other parts of
the UK; Northern Ireland does not have legislation to enable an intervention to be made in the
life of a person lacking capacity to make their own decisions40. Instead, mental capacity is
governed by common law (case law) which presumes that every person has the capacity to
make their own decisions, including decisions that are deemed unwise.
Within Northern Ireland the current law is more equivalent to the pre Mental Capacity Act
2005. This basically means that whether an individual has or lacks capacity to do something
is ultimately a question for a court to answer. This view basically removes the input from
family, the proprietor of a residential care home; a social worker; a solicitor; and even a
doctor, although this group of people may be consulted by the court in order to arrive at their
decision41. The courts are, as previously mentioned, keen to safeguard their overall
jurisdiction in matters of mental capacity42, this is considering that there are a lot of decisions
regarding capacity which may never get as far as a court.
If considering that Northern Ireland’s approach to mental capacity is similar to the pre Mental
Capacity Act 2005, then when dealing with the property of a patient, the courts tried to put
themselves in the place of the patient in order to decide what that patient would have done. It
was assumed that the patient would be having a brief lucid interval during which they would
remember the past and understand their prognosis. In this case a substitute judgement was
used, a substitute judgement being that decisions be made as they would have been by the
incapacitated person, but for the incapacity43. In the case of Re D(J) [1982] Ch 237 five
principles for making decisions in this way, in the context of the authority of the court to
make a will for a person lacking capacity, was established by Sir Robert Megarry V-C:
40
Northern Ireland stands alone within the United Kingdom in not having a statute dealing with Capacity.
Bamford Review of Mental Health and Leaning Disability (NI). August 2007,Pg 16, available at
www.dhsspsni.gov.uk/bamford.htm
41
society, 2nd ed, 2004, BMJ Publishing Group)
42
See for example: Re MB (medical treatment) [1997] 2 FLR 426; R(on the application of Wilkinson) v
Broadmoor Special Hospital authority and others [2002] 1 WLR 419; Re B (Adult: refusal of Medical Treatment)
[2002] 2 All ER 449; Martin Masterman-Lister (1) Jewell (2) Home Counties Dairies and Martin Masterman-
Lister v Brutton & Co [2002] Op cit
43
P Bartlett, R Sandland , Mental Health Law Policy and Practice (3rd, Oxford University Press, Oxford 2007)
529
19 | P a g e
1. It is to be assumed that the patient is having a brief lucid interval at the time when the
will is made
2. During the lucid interval, the patient has full knowledge of the past, and a full
realisation that as soon as the will is executed he or she will relapse into the actual
mental status
3. It is the actual patient who has to be considered and not a hypothetical patient
4. During the hypothetical lucid interval, the patient is to be envisaged as being advised
by competent solicitors
5. In all normal cases, the patient is to be envisaged as taking a broad brush to the
claims on his bounty, rather than an accountant’s pen
Where there was no information about the patient’s past views, the Court would assume that
he was “a normal decent person, acting in accordance with contemporary standards of
morality”44. In contrast, when considering a patient’s personal welfare, a ‘best interests’ test
was adopted, which required a balance sheet approach, considering each benefit and dis-
benefit of any particular course of action and then drawing a conclusion as to the correct way
to proceed45.
At present, the Mental Health (Northern Ireland) Order (1986) (MHO) provides the legal
framework regarding the compulsory admission and treatment of patients suffering from
a mental disorder. It covers three main areas namely46:
• Compulsory admission, detention, care and treatment of patients suffering from a
mental disorder, who pose a serious risk to themselves or others.
• Guardianship and management of the patients’ property and affairs.
• Individuals with a mental disorder within the criminal justice system.
This is a very powerful piece of legislation because it has the power to take away an
individual’s rights; for example to treat them against their will and to deprive them of their
liberty. By making a decision on capacity, anyone with authority over an individual can
deprive that person of civil rights and liberties enjoyed by most adults and safeguarded by the
44
Re C [1992] 1 FLR 51
45
Re F [1990] 2 AC 1: discussed in chapter one
46
Dr. Lesley-Ann Black, Research and Information Service Research Paper The Mental Capacity Bill and
Children under 16, NIAR 366-12, papers 146-12, pg 6
20 | P a g e
Human Rights act 199847. Currently within Northern Ireland as things stand under mental
health law you do not have the right to refuse treatment. If you have a mental disability or
severe learning disability you can be treated compulsorily against your will48see Appendix
One.
United Nations Convention on the Rights of Persons with Disabilities

The United Nations adopted in December 2006 the Convention on the Rights of Persons with
Disabilities49 that entered into force on 3 May 2008. A Convention is an internationally
agreed legally binding treaty, which provides directions for the international community. It is
a tool and a driver for domestic changes50. One of the core messages of the CRPD is that
persons with disabilities are not objects but human subjects deserving equal respect and
treatment51. The CRPD offers a response to the concern that without legal capacity people are
seen as non-persons in the eyes of the law and that their decisions have no legal force,52which
is still considered a reality for hundreds of thousands (possibly millions) of citizens of
European countries.53The bulk of European countries, not just Northern Ireland’s, legal
capacity systems are out-dated and in need of some form of review and reform54. Reform is
so important because legal capacity is one of the most significant human right’s issues in
Europe today, it goes beyond decision making; it is about what it means to be human55. The
CRPD differs from other UN treaties in that it has been ratified by the EU, which means that
47
society, 2nd ed, 2004, BMJ Publishing Group)pg 27
48
Centre on Human Rights for People with Disabilities, Mental Capacity (Health, Welfare and Finance) Bill
report, Page 2, Found at: http://www.disabilityaction.org/fs/doc/publications/mental-capacity-bill-briefing-
paper.pdf
49
Known as the CRPD
50
Equal recognition before the law and equal capacity to act: understanding and implementing Article 12 of
the UN Convention on the Rights of Persons with Disabilities EDF Position paper - October 2009
51
Article 1 of the UN Convention on the Rights of Persons with Disabilities states that the purpose of the
Convention is “to promote, protect and ensure the full and equal enjoyment of all human rights and
fundamental freedoms by all persons with disabilities ……”
52
Who gets to decide? Right to legal capacity for persons with intellectual and psychosocial disabilities,
commissioner for human rights, CommDH/IssuePaper(2012)2 page 5 , found at:
https://wcd.coe.int/ViewDoc.jsp?id=1908555
53
Peter Bartlett, Oliver Lewis and Oliver Thorold, 'Mental Disability and the European Convention on Human
Rights' [2007] Human Rights Law Review, pg 155. Figures are based on research conducted by the mental
Disability Advocacy Centre on guardianship in Bulgaria, Croatia, Czech Republic, Georgia, Hungary, Russia and
Serbia; found in: Who gets to decide? Right to legal capacity for persons with intellectual and psychosocial
disabilities, commissioner for human rights, CommDH/IssuePaper(2012)2 page 12 , found at:
54
ibid
55
Gerard Quinn, ‘personhood & Legal Capacity perspectives on the paradigm shift of Article 12 CRPD’,HPOD
conference Harvard Law school, 20 February 2010
21 | P a g e
it will now be used as a standard in the development of EU legislation relating to people with
disabilities56. In Northern Ireland, the independent monitoring mechanism for the Convention
comprises the Human Rights Commission and the Equality Commission.
Article 12 of the UN Convention on the Rights of Persons with Disabilities says that people
with disabilities have a right to equal recognition before the law. This means disabled people
have the right to make decisions about their lives:
Article 1257
1. States Parties shall reaffirm that persons with disabilities have the right to
recognition everywhere as persons before the law.
2. States Parties shall recognize that persons with disabilities enjoy legal capacity on
an equal basis with others in all aspects of life.
3. States Parties shall take appropriate measures to provide access by persons with
disabilities to the support they may require in exercising their legal capacity.
4. States Parties shall ensure that all measures that relate to the exercise of legal
capacity provide for appropriate and effective safeguards to prevent abuse in
accordance with international human rights law. Such safeguards shall ensure that
measures relating to the exercise of legal capacity respect the rights, will and
preferences of the person, are free of conflict of interest and undue influence, are
proportional and tailored to the person's circumstances, apply for the shortest time
possible and are subject to regular review by a competent, independent and impartial
authority or judicial body. The safeguards shall be proportional to the degree to which
such measures affect the person's rights and interests.
5. Subject to the provisions of this article, States Parties shall take all appropriate and
effective measures to ensure the equal right of persons with disabilities to own or
inherit property, to control their own financial affairs and to have equal access to bank
56
Research and Information Service Briefing Paper 1 Paper 27/12 3 February 2012 NIAR 057-12 Michael Potter
Disability Legislation and Policy Found at:
http://www.niassembly.gov.uk/Documents/RaISe/Publications/2012/ofmdfm/2712.pdf
57
UN Convention on the Rights of Persons with Disabilities Article 12
22 | P a g e
loans, mortgages and other forms of financial credit, and shall ensure that persons
with disabilities are not arbitrarily deprived of their property.
Article 12 of the UN Convention on the Rights of Persons with Disabilities says that people
with disabilities have a right to equal recognition before the law. This means disabled people
have the right to make decisions about their lives. Article 12 of the Convention says that
people with disabilities have legal capacity on an equal basis with others in all aspects of life.
This is currently not the case in Northern Ireland. Article 12 is a highly significant article in
the Convention, sometimes even being referred to as the ‘heart’ of the CRPD. Many of the
issues engaged by Article 12 are currently being addressed through the process of the reform
of the Northern Ireland Mental Health Order and the development58. The CRPD has a
principle of equality under-pinning the entire convention59, the creation of a ‘level playing
field’ is the aim. It is not about creating separate or special rights60for people with disabilities
but simply including them in the current human rights context and tailoring these rights to the
needs of persons with a disability. Article 2 of the CRPD states:
any distinction, exclusion or restriction on the basis of disability which has the
purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on
an equal basis with others, of all human rights and fundamental freedoms in the
political, economic, social, cultural, civil or any other field. It includes all forms of
discrimination, including denial of reasonable accommodation61
58
Disability programmes and policies: How does Northern Ireland measure up? Monitoring Implementation
(public policy and programmes) of the United Nations Convention on the Rights of Persons with Disabilities
(“UNCRPD”) in Northern Ireland. Colin Harper, Simon McClenahan, Dr Bronagh Byrne and Hannah Russell
page126 Found at: http://www.disabilityaction.org/fs/doc/publications/uncrpdfullreportfinal260112.pdf
59
60
ibid
61
Article 2 of the CRPD
23 | P a g e
Considering the following:
Creates an understanding of equality that is closely linked with the perception that
disability is a disadvantage that occurs when persons with an impairment meet an
inaccessible environment and not a characteristic simply imputable to the individual62
In terms of capacity, the CPRD can be seen as a way of empowering or trying to overcome
the idea that a person with a disability or other form of mental illness does not have the
capacity to make their own decisions. It is laying the foundation that is brought to attention in
the quote above that capacity is being measured in regards to the persons disability and or
mental illness, yet the idea that incapacity and disability/mental illness go “hand in hand” is
limiting the human rights of the person i.e. if a disability is discovered why should it be
assumed that in certain circumstances it automatically deems that person incapable of making
a decision? The idea of adaption in regards to capacity is interesting in terms of the CRPD,
which addresses the idea of “reasonable accommodation” in article 5(3):
In order to promote equality and eliminate discrimination, States Parties shall take all
appropriate steps to ensure that reasonable accommodation is provided
Article 5(3) shows the need for creation of a system of accommodating the person with
appropriate modification of the current system in order to reduce the burden and make sure
the person with disabilities enjoys the same human rights and fundamental freedoms of others
in society. Article 12(4) provides the opportunity to of replacing the guardianship with a
support system which will enable the transfer of power to return to the individual63 . People
whose abilities to make complex decisions or to communicate their decisions to others are
either temporarily or permanently impaired may need high levels of support in most or all
areas of life. In such cases they must be provided with such support that ensures that their
legal capacity is nevertheless enjoyed on an equal basis with others while helping them to
evaluate the implications and consequences of some of their actions or inactions64.
It is noteworthy that Article 12(4) does not apply to measures which relate to the exercise of
legal capacity of persons with disabilities, but to measures which affect any person’s legal
62
63
Ibid page 23
64
the UN Convention on the Rights of Persons with Disabilities EDF Position paper - October 2009 page 5
24 | P a g e
capacity. This is clear when Article 12(4) is read in the light of Articles 12(1) and 12(2)
which forbid distinctions with respect to legal capacity (and by implication to the safeguards
required) on the basis of disability. The protection of the human rights of persons with
disabilities is here to be achieved partly through the elimination of legal, policy or
programmatic measures which distinguish on the basis of disability.65
This is in contrast to the situation within Northern Ireland currently as previous mentioned if
someone has a physical health issue, they have the right to make a decision to refuse
treatment, even if this is for a life threatening illness. However, if someone has mental ill
health and is subject to the Mental Health Order they lose the right to refuse treatment. As
things stand under mental health law you do not have the right to refuse treatment. If you
have a mental disability or severe learning disability you can be treated compulsorily against
your will. This right to refuse unwanted treatment does not apply to children, nor to persons
within the criminal justice system who have a mental disorder which requires treatment and
where without such treatment they would pose a substantial risk of serious harm to self and
others.66
Bamford Review
The message of the Bamford Review was that the 1986 Order had significant gaps, and it
suggested that the opportunity be taken to provide a comprehensive legislative framework
based on a number of central principles. The Committee set out four over-arching principles
that provided a "sound ethical basis for legislation" and "recognise and support the dignity of
the person", namely67:
i. Autonomy - respecting the person's capacity to decide and act on his own and his
right not to be subject to restraint by others.
ii. Justice - applying the law fairly and equally.
iii. Benefit - promoting the health, welfare and safety of the person, while having
regard to the safety of others.
iv. Least Harm - acting in a way that minimises the likelihood of harm to the person."
65
Disability programmes and policies: How does Northern Ireland measure up? Monitoring Implementation
(public policy and programmes) of the United Nations Convention onthe Rights of Persons with Disabilities
(“UNCRPD”) in Northern Ireland. Colin Harper, Simon McClenahan, Dr Bronagh Byrne and Hannah Russell page
125 Found at: http://www.disabilityaction.org/fs/doc/publications/uncrpdfullreportfinal260112.pdf
66
ibid
67
The Bamford Review, A Comprehensive Legal Framework, Executive Summary, August 2007 para 1.8;
25 | P a g e
Currently the Bamford Review of Mental Health and Learning Disability Services has
concluded that there is clear evidence of inequalities in investment in the area of mental
capacity when compared with other regions in the UK68. With regards to the CRPD ,which as
mentioned above, takes a “rights based approach” to dealing with people who may be lacking
capacity, the Bamford Review also proposed a rights-based approach, as the guiding principle
for the reform of mental health legislation, which respects the decisions of all who are
assumed to have capacity to make their own decisions:
“Grounds for interfering with a person’s autonomy should be based primarily on

impaired decision-making capacity…A principled, human rights-based approach
moves from public protection as the priority towards safeguarding the rights and
dignity of people with mental disorder and ensuring their access to appropriate care
and treatment. It will be necessary in some situations to balance these individual
rights with the rights of others who may be placed at risk through the individual’s
behaviour”69.
Within the reason for suggesting this approach the Bamford Review said that the current
Mental Health order 1986 allows the individual’s autonomy to be over-ridden in the interests
of his own or other’s safety, with the powers focusing on compulsory assessment based on a
relatively narrow definition of risk, rather than ensuring appropriate treatment70. The move
towards a rights based approach could be down to the evolution of the understanding of
mental health. The Review proposes that the:
1986 Order is not based on this approach71as it allows the individual’s autonomy to be
over-ridden in the interests of his own or other’s safety, with the powers focusing on
compulsory assessment based on a relatively narrow definition of risk, rather than
ensuring appropriate treatment72
As can be seen from the Bamford Review the idea of continuing with the current Northern
Ireland setup that is the Mental Health 1986 Order is not the most beneficial to people who
may be seen to be lacking capacity. The idea of removing the legal capacity of the person as
mentioned before removes the person’s power or possibility to act within the framework of
68
69
The Bamford Review, A Comprehensive Legal Framework, Executive Summary, August 2007, page 3
70
71
the rights based approach similar to that which was developed in the CRPD
72
26 | P a g e
the legal system, the 1986 Order, at present, as discussed in the Bamford Review does not
provide this.
27 | P a g e
Chapter Three Mental Capacity Act 2005 England and Wales:
In order to expand on the understanding of mental capacity legislation within Northern
Ireland this thesis will now examine England and Wales who recently went through a similar
process and in turn implemented mental capacity legislation in the form of the Mental
Capacity Act 2005.
The Mental Capacity Act 2005 (MCA 2005) was fully implemented in England and Wales on
1 October 2007, having arrived in two stages. In April 2007, the new Code of Practice (Code)
was made available (the Code supports the framework of the MCA 2005); the Independent
Mental Capacity Advocate (IMCA) service began in England; the new test for assessing
capacity, the five key principles and the best interests test were all introduced (only for the
purpose of the new IMCA service) and there was a new criminal offence of ill treatment or
wilful neglect. The remainder of the MCA 2005 came into force in October 2007. For
example, the new assessment of capacity test and best interests' principle were extended for
all other purposes and there were new statutory provisions for advance decisions to refuse
medical treatment.
The Mental Capacity Act (2005) is underpinned by five key principles73. Essentially these
principles reflect what is currently considered good, patient-centred, non-paternalistic
practice. However, the MCA reinforces the importance and value of these principles by
enshrining them within a statutory framework – i.e. it makes adherence to these principles a
legal requirement74:
• Every adult has the right to make his or her own decisions and must be assumed to
have capacity to do so unless it is proved otherwise. This encourages the idea that the
person has the right to make their own decisions if he/she has the capacity to do so.
Although it has to be considered that a person may have capacity to make decisions
about certain issues but not others. Likewise, a person who needs help to make or
communicate a decision may still have the capacity to make that decision75.
• People must be supported as much as possible to make a decision before anyone
concludes that they cannot make their own decision. This avoids people being too
73
Section 1 of the Mental Capacity Act 2005
74
J Cowan, 'CLINICAL RISK MANAGEMENT Are we prepared for the Mental Capacity Act?' [2007] CGIJ 64, 65
75
A Alonzi, 'THE MENTAL CAPACITY ACT 2005 AND THE CODE OF PRACTICE: AN INTRODUCTION' [2008]
NOTTINGHAM LAW JOURNAL 44, 45 Found at: http://www.ntu.ac.uk/nls/document_uploads/113201.PDF
28 | P a g e
quickly labelled as lacking capacity to make the decision in question and it helps to
prevent unnecessary interventions into a person's life76
• People have the right to make what others might regard an unwise or eccentric
decision. The practitioner must consider whether unwise decisions are being made
repeatedly: perhaps the decision in question is very irrational or out of character for
that person77
• Anything done for or on behalf of a person who lacks mental capacity must be done
in their best interests. There is no definition of "best interests" in the Code. This is
because a person's best interests will vary from case to case78. There is a best
interest’s checklist in section 4 of the MCA 2005, and further guidance is contained
in the Code, paragraphs 5.13 et seq.
• Anything done for, or on behalf of, people without capacity should be the least
restrictive of their basic rights and freedoms.
By having a statutory provisions like that of the Mental Capacity Act 2005 it addresses the
concern of Lord Goff, as mentioned previously in the case of Re F (Mental patient
sterilisation)79, that is, his concern surrounding the lack of “English authority on the question
whether as a matter of common law (and if so in what circumstances) medical treatment can
lawfully be given to a person who is disabled by mental incapacity from consenting to it”.80
Statutory provisions also addresses Bridgit Dimond’s argument81 that a lack of statutory
provisions forced the courts to make declarations on the absence of mental capacity, and to
determine what actions ‘appear’ to be in the best interests of the mentally incapacitated
person on the basis of existing case law or the common law82.
In summary The MCA starting point is to confirm in legislation that it should be assumed that
an adult (aged 16 or over) has full legal capacity to make decisions for themselves (the right
to autonomy) unless it can be shown that they lack capacity to make a decision for
themselves at the time the decision needs to be made. This is known as the presumption of
76
ibid
77
ibid
78
ibid
79
[1990] 2 AC 1
80
Ibid via Lord Goff
81
Discussed in chapter one
82
B Dimond , Legal Aspects of Mental Capacity (1st, Blackwell Publishing , Oxford 2008) 14
29 | P a g e
capacity83. The Act also states that people must be given all appropriate help and support to
enable them to make their own decisions or to maximise their participation in any decision-
making process. It also calls for any decision which has to be made is in the best interest of
the person.
MCA 2005 interaction with Mental Health legislation:

Currently within England and Wales there are two sets of legislation, they are the Mental
Capacity Act 2005 and the Mental Health Act 2007. The two statutes are underpinned by
different philosophies. The MCA operates to empower people to make decisions for
themselves wherever possible and the Act is aimed to protect incapacitous adults. The Code
of Practice (2007) enshrines these principles and reinforces the notion that any decisions
made should be in the individual’s best interests using the least restrictive measures.
Conversely the MHA provides a legislative framework along with the MHA Code of Practice
aimed at providing medical treatment for patients suffering from a mental disorder. Under
that legislation, the usual criteria for intervention - by way of both detention and involuntary
treatment - are that the person concerned is 'mentally disordered' (or 'mentally ill') in the
necessary sense and that they present a serious risk to themselves or others. If a person meets
those complex criteria, the legislation will usually authorise their certification by medical
practitioners, their emergency detention and transportation to a hospital or clinic, their
compulsory assessment, their involuntary psychiatric treatment, and their compulsory
community care, provided the person's involuntary status as a whole is kept under regular,
continuing review by a court or tribunal84.
But it is argued that mental health legislation, as currently conceived in most jurisdictions,
discriminates against people with a mental illness. It carries underlying assumptions that
people with such illnesses are not fully autonomous and that they are dangerous to others.
Thus such legislation reinforces damaging stereotypes of people with a mental
illness.Although the Mental Capacity Act and Mental Health Act are grounded in very
different principles - patient autonomy and best interests v. paternalism and risk reduction -
there is significant overlap in coverage of the two statutes. This undoubtedly leads to
83
Mental capacity act 2005 code of practice page 15
84
G Szmukler, R Daw, J Dawson, 'A model law fusing incapacity and mental health legislation' [2010] Journal of
Mental Health Law 1
30 | P a g e
confusion about which regime to use in which situations.85Within the Bamford report it was
highlighted the concerns which were present in England:
In England and Wales, the Joint Scrutiny Committee on the Draft Mental Health Bill
2004, which reported in April 2005, emphasised both the confusion reported between
Mental Health and Mental Capacity legislation and the need for clarity. The three
areas specified were: which legislation to use where a person was deprived of liberty
in protective care (Bournewood cases), where treatment without consent for mental
disorder was required; and the extent to which advance decisions refusing, and
advance statements requesting medical treatment for mental disorder, should be
recognised86.
To some extent England and Wales have tried to address these concerns, for instance in the
mental capacity act 2005 code of practice it has laid out guide lines for when to use the
Mental Health Act instead of the MCA, although as mentioned in the Bramford report:
Some of the situations described in the Code point to possible injustice as well as
confusion. For example, a person who has refused treatment for mental disorder
under the 2005 Act, through a valid advance decision, could still be treated under the
Mental Health Act, as there are no provisions in that Act to respect such refusals87.
Confusion surrounding the MCA seems to be a common theme (complexity surrounding the
MCA will be discussed later). Below is the idea of now Mental Health Legislation usually
operates in countries like England and Wales, George Szmukler explains:
Under that legislation, the usual criteria for intervention - by way of both detention
and involuntary treatment - are that the person concerned is 'mentally disordered' (or
'mentally ill') in the necessary sense and that they present a serious risk to themselves
or others. If a person meets those complex criteria, the legislation will usually
authorise their certification by medical practitioners, their emergency detention and
transportation to a hospital or clinic, their compulsory assessment, their involuntary
psychiatric treatment, and their compulsory community care, provided the person's
involuntary status as a whole is kept under regular, continuing review by a court or
85
R Cairns, G Richardson, M Hotopf, 'Deprivation of liberty: Mental Capacity Act safeguards versus the Mental
Health Act' [2010] Psychiatrist 247
86
87
Ibid pg 46
31 | P a g e
tribunal. Patients who retain, or regain, their capacity to consent may still receive
psychiatric treatment without their consent as long as they remain involuntary patients
under the scheme88.
Contrast this to what George Szmukler describes as mental capacity legislation which is
usually present in countries:
Treatment without consent is not permitted for those with capacity; for those who lack
capacity reliance is placed on common law powers (or justifications) for intervention
whose origins lie in the defence of necessity in the law of crime and tort, or we act
under adult guardianship (or incapacity) legislation, such as the Mental Capacity Act
2005 (MCA 2005). Under these regimes the fundamental criterion for intervention is
not the presence of any specific disorder or the imminent threat of harm. Instead, the
test for intervention is the incapacity of the person to make necessary treatment
decisions. If the person lacks that capacity, treatment that is in their 'best interests'
may generally be provided without their consent89.
Where a patient meets criteria for admission under Mental Health Act Sections 2 or 3 and
objects to either admission or treatment, the Mental Capacity Act Schedule 1A states that the
Mental Health Act should be used. In GJ v The Foundation Trust 90 Charles J emphasised in
the GJ case that you cannot “pick and choose” between the MHA and MCA stating that the
MHA should have “primacy” if it can be used. The critical point here being that the threshold
criteria in s2 and /or s3 of the MHA must be met. Section 3(2)(a) requires that the patient
must be “suffering from a mental disorder of a nature and degree which makes it appropriate
for him to receive medical treatment in a hospital” and per s3(2)(c) “it is necessary for the
health and safety of the patient or for the protection of other persons that he should receive
such treatment and it cannot be provided unless he is detained under this section; and (d)
appropriate medical treatment is available to him”91.
88
G Szmukler, R Daw, J Dawson, 'A model law fusing incapacity and mental health legislation' [2010] Journal of
Mental Health Law 1
89
ibid
90
[2009] EWHC 2972 (Fam) para. 45
91
An example of when it could be appropriate to use the MCA rather than the MHA is set out in Chapter 13
(page 231) of the Code of Practice1.
32 | P a g e
The above is a good example of how the two act differ, but it also shows that there could now
be difficulties in deciding which act to follow. It can be argued that there was the curious
situation of having two schemes for detention, the first under the Mental Health Act 198392
ignoring capacity and the second, under the Mental Capacity Act 2005, based on best
interests and lack of capacity. With two different detention methods in place i.e. the two acts,
the mismatch between the two laws causes many problems and with these problems comes
unfairness. For example unfairness can arise when considering a patient with a physical
disorder compared to a patient with a mental disorder, the MHA allows involuntary treatment
if the person who is suffering from a mental disorder (very broadly defined); the disorder is
of ‘a nature or degree which makes it appropriate…to receive medical treatment’; and,
treatment is ‘necessary in the interests of the health or safety of the patient or for the
protection of other persons’ (MHA section 3). This seems to show discrimination i.e. why are
the rules so different between the two disorders, with a mental disorder the legislation is
assuming that the person is incapable of making decisions for themselves and this could lead
to easy detention under the MHA. A mentally ill person with capacity should not be treated
involuntarily on account of risk to others. By definition, such a person understands the
consequences and risks that their illness entails and takes responsibility for them. For persons
with capacity, their personal values are given dominion. Those with mental disorder are not
accorded this privilege93.
Further interaction between the MCA and the MHA can be seen when addressing the
Bournewood Gap. Prior to the MHA (2007) amendments, the MCA could not be used to
justify deprivation of liberty. The so-called ‘‘Bournewood Gap’’ was named after a landmark
legal case94 about Mr L, a man with autism who was deprived of his liberty in a learning
disability unit but not detained under the MHA. The Deprivation of Liberty Safeguards
95plugged this gap by providing a legal framework for the deprivation of liberty of the
92
Now Mental Health Act 2007
93
George Szmukler, 'How mental health legislation discriminates unfairly against people with mental illness '
(barristermagazine 2012) <http://www.barristermagazine.com/archive-articles/issue-45/how-mental-health-
legislation-discriminates-unfairly-against-people-with-mental-illness.html> accessed 28 July 2013
94
The deprivation of liberty safeguards address the October 2004 European Convention on Human Rights
judgment in HL v the United Kingdom 45508/99 (2004) ECHR 471 (the Bournewood judgment), which requires
that people may only be deprived of their liberty through a process set out in law, with safeguards to prevent
arbitrary detention and speedy access to a Court to review the detention.
95
Ministry of Justice. Deprivation of liberty safeguards. Code of Practice to supplement the main Mental
Capacity Act 2005 Code of Practice. London: The Stationery Office; 2008. Also available at:
http://www.dh.gov.uk/en/ Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/
33 | P a g e
incapacitated individual. DOLS96 apply only to actions by a ‘‘public authority’’ and have no
relevance to what goes on in people’s homes.97 During the committee stage of the Mental
Health Bill in the House of Lords the responsible minister stated that the purpose of the
proposed amendments was not to increase the number of people deprived of their liberty, but
rather that the legal position of those necessarily deprived of their liberty will be regularised:
"This is not about making new powers to detain people. It is about giving safeguards
to the most vulnerable in care homes and hospitals who need to have their liberty
curtailed and considered and who, in some cases, need to be deprived of aspects of
their liberty in order to keep them safe and protected and to provide the highest
quality care.98 '
The Government's response to the problems thrown up by the Bournewood case in the
ECtHR is limited and pragmatic. Robert Robinson addresses this situation well:
While recognising the necessity to regularise the legal position of people who are
unlawfully being deprived of liberty under common law powers, it does not wish to
extend the full MHA detention regime to everyone who may be deprived of liberty. It
therefore proposes to fill the Bournewood gap but to leave the scope of MHA
detention powers unchanged. There are serious disadvantages in approaching law
reform in this way. Legislation which is not underpinned by clear principles and legal
definitions is likely to result in unforeseen consequences, for example an increased
number of detentions of compliant patients under the MHA. By failing to define who
will come within the new MCA provisions, it risks creating an unnecessarily complex
and costly detention regime under the MCA with little discernible benefit to the
people whose interests it is intended to protect99.
DH_085476. Also see: A Zigmond, 'Deprivation of liberty safeguards and the Mental Capacity Act' [2009] BMJ
2009; 338 found at: http://www.bmj.com/content/338/bmj.b1888
96
Deprivation of Liberty Safeguards
97
D.P Herlihy, F Holloway, 'The Mental Health Act and the Mental Capacity Act: untangling the relationship'
[2009] Psychiatry 478
98
Baroness Ashton of Upholland House of Lords Hansard 17th January 2007, column 763
99
R Robinson , 'Amending the Mental Capacity Act 2005 to provide for deprivation of liberty ' [2007] Journal of
Mental Health Law 27, 40
34 | P a g e
Northern Ireland will have to address these concerns when it comes to drawing up their own
legislation, especially the safeguards surrounding the use of DOLS (addressed later in the
chapter).
Fusion Model the solution to discrimination which can occur between the
interaction of the MCA and MHA?
The question which arises is what can be done to remove this stigma towards mental
disorders and the confusion which is created when the two acts interact with each other? This
leads to the thought of whether it is possible for statute to be able to legislate for the many
different circumstances that might arise in regards to mental capacity?100 In fairness to
framers of legislation it is a complex area to legislate, so therefore legislation may not be
perfect but a best approach solution for current problems may be embraced i.e. legislation
may not be perfect but it is better than having no legislative protection. One solution which is
being embraced is that of a fusion model i.e. the fusion of mental health and mental capacity
legislation, which argues that maintenance of separate regimes is no longer acceptable. In
particular, this 'two-track' approach is inconsistent with general principles of health care
ethics and with basic notions of human rights, particularly the right of people with mental
disorders to be free of unnecessary discrimination in the law. Mental disorder is not always
associated with incapacity to consent, and the capacity of mentally disordered people is
already assessed for many other legal purposes. Furthermore, there is good research evidence
that the assessment of capacity in people with a 'mental disorder' is as reliable as for those
with a 'physical disorder'101.The Bamford report in Northern Ireland has a preference for one
legal framework that dealt with all issues arising in relation to capacity and mental health
which
The Review considers that these principles of Autonomy, Justice, Benefit and Least
Harm underpinning substitute decisions should apply in a non-discriminatory way to
both physical and mental health decisions, as well as welfare and financial needs.102
100
O Ward, 'THE MENTAL CAPACITY ACT 2005 (ENGLAND AND WALES) - A NEW LEGAL FRAMEWORK FOR
DECISION-MAKING' [2005] N. Ir. Legal Q. 275, 279
101
Caims R, Maddock C, Bucharila A. AS David, P Hayward, G Richardson, G Szrnukler, M Hotf , ''Reliability of
mental capacity assessment in psychiatric in-patients' [2005] British Journal of Psychiatry 372
102
The Bamford Review, A Comprehensive Legal Framework, Executive Summary, August 2007, para 5.3
35 | P a g e
In other words, the separate area of law relating to mental health law should become a sub-set
of the law relating to what happens when someone has a loss of capacity to act
autonomously. Capacity law should develop and incorporate mental health law "whilst
ensuring appropriate protections"103. The Mental Capacity (Health, Welfare and Finance) Bill
is unique because, for the first time in the UK, mental capacity and mental health law will be
fused together.
Considering that a fused system may be beneficial what then is the best way to approach such
a system? George Szmukler, Rowena Daw and John Dawson present a template for such
fusion:
we advocate is to abandon the two-track approach, and, instead, to fuse the two
together into a single, comprehensive involuntary treatment scheme, which preserves
the strengths of each104.
The thinking behind this is that by using a fusion technique it preserves the benefits of both
systems therefore giving a best of both worlds approach. The aim of the fused model is to
eliminate the difference between ‘physical’ and ‘mental’ disorders (previously discussed and
introduced the idea that there was discrimination between the two disorders). The fusion
concept proposes the recognition that many people with mental disorders retain their capacity
to consent to treatment105. Once again the aim is to reduce discrimination against people with
mental disorders by not making psychiatric treatment, unnecessarily, the subject of special
legislation, and, instead, to apply consistent principles concerning involuntary treatment
across all fields of medical law. Considering the two acts the MCA 2005 strong point is that
when a person is considered to have capacity then the act ensures their autonomy without e.g.
if the person has the capacity to make decisions then there is no justifiable reason to remove
decision making powers. But the counter balance can be seen in other situations, for example
as discussed by George Szmukler in an article he wrote for the barrister magazine:
the lack of sufficient attention to powers governing emergency treatment, forced

treatment and detention in hospital. For example, in the MCA, one section only (out
103
K Gledhill, 'The Role of Capacity in Mental Health Laws- Recent Reviews and Legislation' [2010] Special Ed. J.
Mental Health L 129, 139
104
G Szmukler, R Daw, J Dawson, 'A model law fusing incapacity and mental health legislation' [2010] Journal
of Mental Health Law 1
105
it should be noted that in many respects the law already requires the capacity of people with mental
disorders to be assessed for many purposes, including their capacity to manage property, make a will, drive a
car, stand trial, and so on
36 | P a g e
of 69 in total) deals with the use of force: ‘restraint’ is permitted when it is a
‘proportionate response’ to the ‘likelihood of the patient suffering harm’ and the
‘seriousness of that harm’106
In the same article George combines the MCA and the MHA, and in his opinion removing
the weakness of one piece of legislation and replacing it with the strength of the other for
example:
the use of force and the detention in relation to objecting patients is clearly authorised
and regulated by mental health legislation – who can authorise the detention, for how
long, where it may occur, how it should be monitored107
As can be seen from the thinking above the idea of fusion is used to eliminate the weakness
of a double approach system. Anothey Holland addresses the requirements for a piece of
legislation which would be need to be addressed:
First, it would have to provide the means for making decisions on behalf of people
who at the time lack the capacity to make such decisions for themselves, such
decisions going beyond simply those relating to health, needing to include areas such
as welfare and financial matters. Secondly, whatever the principles guiding such
legislation, they must be compatible with international standards and with national
and European law - this includes respect for human rights and a robust and efficient
means of challenge. Thirdly, the legislation should not discriminate on the basis of
whether the decision in question is related to a physical or a psychiatric disorder.
Fourthly, it must be flexible enough to enable substitute decision-making under very
different circumstances - the person in A & E who is drunk and lacks capacity; the
unconscious, anaesthetised, or sedated person; the person with advanced dementia or
with an acute psychotic illness; or the person with profound intellectual disabilities in
need of day-to-day support and lacking the capacity to consent to this. It must also
enable action to be taken (such as restraint or the transportation of a person), with the
106
George Szmukler, 'How mental health legislation discriminates unfairly against people with mental illness '
(barristermagazine 2012) <http://www.barristermagazine.com/archive-articles/issue-45/how-mental-health-
legislation-discriminates-unfairly-against-people-with-mental-illness.html> accessed 28 July 2013
107
ibid
37 | P a g e
necessary safeguards, when such action is necessary and in the individual's best
interests. Finally, it must have robust safeguards and a ready means of challenge108.
These steps provide a logical set of requirements which has to be addressed when it comes to
creating a fusion piece of legislation. Of course, on paper, these steps can seem somewhat
easy and on the face of it considered “the best way forward”, but there has been some
“rumblings” of concern when it comes to the creation of fusion legislation. This concern was
mentioned in the report “Delivering the Bamford vision” which suggested:
after discussions between interested departments within the Northern Ireland

Government, it was accepted that there was a need for a new framework for mental
health and capacity law, but it was proposed that there should be two pieces of
legislation, the first amending the 1986 Order because of the "urgent need" for that -
though the timescale was given as it being enacted only in 2011 - and then new
mental capacity legislation was to follow. The suggestion made was that putting both
together in a single statute "would lead to a very complex piece of legislation which
may be difficult to implement"; unfortunately, no reason is given for this assertion'109
Within this document the complexity of a single piece of legislation was mentioned,
unfortunately the point surrounding the complexity of the concern wasn’t expanded on within
the document itself. Complexity may be seen as an issue but as will be seen later on in this
thesis and as has already been addressed above, complexity exists presently in a dual model
as with the MCA and the MHA. It should be noted that currently the position within Northern
Ireland has since changed once again in the document of “Legislative Framework for
Mental Capacity and Mental Health Legislation in Northern Ireland”110, which retains the
idea that there will be separate legislation on mental health and questions of capacity but
proposes that the two relevant bills should be introduced at the same time. It is also noted that
the legislation relating to mental health matters, which may be in the form of an amendment
108
A Holland, 'The model law of Szmukler, Dawson and Daw - the next stage of a long campaign.?' [2010]
Special Ed. J. Mental Health L 63
109
DELIVERING THE BAMFORD VISION THE RESPONSE OF NORTHERN IRELAND EXECUTIVE TO THE BAMFORD
REVIEW OF MENTAL HEALTH AND LEARNING DISABILITY, page 27, Found at:
www.dhsspsni.gov.uk/bamford_action_plan_2009-2011.pdf
110
LEGISLATIVE FRAMEWORK FOR MENTAL CAPACITY AND MENTAL HEALTH LEGISLATION IN NORTHERN
IRELAND, found at: www.dhsspsni.gov.uk/legislative-framework-for-mental-capacity.pdf
38 | P a g e
to the 1986 Order or be a new statute, will be harmonised with the mental capacity legislation
"to form a coherent framework”111.
MCA relationship to the CRPD and addressing the safeguard problems

regarding legislation:
Having previously discussed the CRPD in relation to Northern Ireland it will be discussed in
relation to the MCA 2005; the reason for this comparison is to highlight issues surrounding
mental capacity legislation in relation to fulfilling the suggestions that were presented in the
CRPD.
In her blog Lucy Series112 introduces the compelling argument that the MCA 2005 and the
CRPD concern themselves with very different issues, and in reality they do not seem
particularly “receptive”113 to acknowledging the concerns posed on the other side. Lucy
makes the point that on first sight it appears that the Mental Capacity Act 2005 (MCA) can
feel a bit “smug”114 within the framework of Article 12115 – and indeed, that appears to be the
view of the UK government in their draft report to the UN on the implementation of the
CRPD. After all, the MCA encodes various principles that seem to accord with the social
model of disability, chiefly116:
• The presumption of capacity (s1(2));

• Caution against prejudiced assumptions that a person lacks capacity by reference to
their age, behaviour or ‘condition’ (s2(3));
• A caution that decisions should not be regarded as non-capacitous just because they
may appear unwise (s1(4));
• A general requirement to provide support for decision making (s1(3));
• A requirement to communicate information relevant to the decision in an appropriate
way (s3(2)).
111
Ibid para 6.1
112
Lucy Series A challenge: Re-imagining capacity[Thesmallplaces] Friday, 4 May 2012
http://thesmallplaces.blogspot.co.uk/2012/05/challenge-re-imagining-capacity.html (accessed 8/08/2013)
113
ibid
114
Lucy Series Is Article 12 keeping you awake at night? [Thesmallplaces] 26 September
2011http://thesmallplaces.blogspot.co.uk/2011/09/is-article-12-keeping-you-awake-at.html (accessed
8/08/2013)
115
CRPD article 12
116
Lucy Series Is Article 12 keeping you awake at night? [Thesmallplaces] 26 September
2011http://thesmallplaces.blogspot.co.uk/2011/09/is-article-12-keeping-you-awake-at.html (accessed
8/08/2013)
39 | P a g e
One of the most fundamental challenges posed by the CRPD is whether or not imposing
‘substituted decisions’ on disability related grounds are ever permissible; it is this
challenge that potentially sets the MCA on its head. Amita Dhanda is sceptical about the
potential of the kinds of reform efforts for mental capacity law manifest in the MCA; she
writes:
The legal redesigning has been prompted by the development of means and methods
by which the law does not take over but only assists persons in living their lives in
accordance with their own genius. However, as these efforts have not done away with
the notion of incompetence, they continue to deny full personhood to some persons117.
Dhanda rejects the very concept of incompetence, and argues that whilst it is entirely
appropriate to provide support for decision-making for persons with disabilities, it is never
appropriate to impose substitute decisions upon people on grounds of incompetence. This is
seen as a problem for the MCA, because whilst on the one hand it aims to encourage
supported decision making, it takes away with the other hand because it also makes
provisions for substitute decisions in a person’s ‘best interests’ where they have been found
to lack capacity. It is inevitable that academics are pointing to potential conflict between
MCA 2005 and the UN Convention on the Rights of Persons with Disabilities because of this
conflict which seems to be present in the MCA.
Article 12 itself wants to encourage the right to equal recognition before the law; this has
been interpreted as prohibiting the use of disability as a ground for a declaration of legal
incapacity, thereby calling into question the diagnostic threshold of MCA 2005. The Centre
for Disability Law & Policy NUI Galway Submission on Legal Capacity the Oireachtas
Committee on Justice, Defence & Equality addresses this by saying:
The CRPD through Article 12 clearly rejects the status and outcome approaches to
legal capacity and insists that the functional approach must focus on supports to
enable persons to exercise legal capacity. In the past the “functional approach”118 was
117
A Dhanda, 'LEGAL CAPACITY IN THE DISABILITY RIGHTS CONVENTION: STRANGLEHOLD OF THE PAST OR
LODESTAR FOR THE FUTURE?' [2006-2007] Syracuse J. Int'l L. & Com 429, 435
118
Functional Test: In this formulation disability is treated as a threshold condition. However, the fact of
disability alone, does not result in a finding of incompetence. Instead, the person with disability is considered
incapable if, by reason of the disability, he or she is unable to perform a specified function. For example, this
test would deny legal capacity to one who, due to cognitive deficits, is unable to understand the nature of a
contract7 or to understand that an act is wrong or contrary to law. Via: A Dhanda, 'LEGAL CAPACITY IN THE
40 | P a g e
used to determine exactly where a deficiency lay and to put in place a very narrowly
tailored regime of guardianship to enable a third party make decisions with certain
procedural and substantive safeguards. Instead, a functional approach keeping with
the spirit of Article 12 should determine what supports a person might need in order
to enable them to exercise their legal capacity.119
Article 12 CRPD sets the principle that all disabled people, like other citizens, have the right
to have their status and capacity recognised in the legal order. It enables all persons to hold,
exercise and benefit from equal and inalienable rights irrespective of the nature and degree of
their disability120. Legal personhood is therefore intended as a characteristic inherent to
human beings. Without this right, the individual would no longer be a person in the legal
sense and thus be deprived of all other rights.121 Disadvantages of the function tests include
difficulties with deciding on the appropriate threshold for decision making. On the one hand
there is a risk that, if the criteria are too lax then vulnerable people may not be protected and
on the other hand if the criteria are too strict then competent peoples' decisions will not be
respected. Importantly the European Court of Human Rights through its case law has
highlighted the trend away from the Status approach. In Shtukaturov v Russia it stated “…the
existence of a mental disorder, even a serious one cannot be the sole reason to justify full
incapacitation”.122 This is an important statement by the ECtHR acknowledging that there
was a lack of proportionality in the legal response to the person’s capacity in that case.
Moreover, the Shtukaturov decision is important in that ECtHR acknowledges that the
deprivation of legal capacity constitutes a serious intrusion into a person’s right to respect for
their private and family life under Article 8 and domestic legislation has to provide “a
DISABILITY RIGHTS CONVENTION: STRANGLEHOLD OF THE PAST OR LODESTAR FOR THE FUTURE?' [2006-2007]
Syracuse J. Int'l L. & Com 429
119
The Centre for Disability Law & Policy NUI Galway Submission on Legal Capacity the Oireachtas Committee
on Justice, Defence & Equality available at:
http://www.nuigalway.ie/cdlp/documents/cdlp_submission_on_legal_capacity_the_oireachtas_committee_o
n_justice_defence_and_equality_.pdf
120
the UN Convention on the Rights of Persons with Disabilities EDF Position paper - October 2009, Page 4
121
M. Nowak, U.N. Covenant on Civil and Political Rights : CCPR Commentary, 2nd revised edition, N.P. Engel
Publisher, 2005, p.369.
122
Shtukaturov v Russia [EHRR, 44009/05, 27 March 2008] at paragraph 94. Also see Winterwerp v Netherlands
6301/73 (1979) ECHR 4: in the court’s opinion, except in emergency cases, the individual concerned should not
be deprived of his liberty unless he has been reliably shown to be of ‘unsound mind’. The very nature of what
has to be established before the competent national authority – this is, a true mental disorder – calls for
objective medical expertise. Further, the mental disorder must be of a kind or degree warranting compulsory
confinement. What is more, the validity of continued confinement depends upon the persistence of such a
disorder.
41 | P a g e
tailored-made response” in this area. This decision brings the jurisprudence of the European
Court of Human Rights into line with the vision of capacity embodied in the UN Convention
on the Rights of Persons with Disabilities. This view is shared with the Council of Europe
Commissioner for Human Rights who stated:
“This judgment must be interpreted to promote an approach in line with the UN

Convention. Any restrictions of the rights of the individual must be tailor-made to the
individual’s needs, be genuinely justified and be the result of rights-based procedures
and combined with effective safeguards.”123
So it is clear that the European Court of Human Rights has been edging closer to the core of
legal capacity and has already explicitly invoked the CRPD as an interpretive aid to the
European Convention on Human Rights.
Article 12 of the CRPD retains the individual as the primary decision maker, while
recognizing that the individual with a disability may need some assistance—and perhaps a
great deal of it—in making and communicating a decision. The paradigm shift reflected in
the move from substitute to supported decision making aims to retain the individual as the
primary decision maker but recognises that an individual’s autonomy can be expressed in
multiple ways, and that autonomy itself need not be inconsistent with having individuals in
one’s life to provide support, guidance and assistance to a greater or lesser degree, so long as
it is at the individual’s choosing124.Edah Wangechi Maina, Vice-Chairperson of the
Committee on the Rights of Persons with Disabilities at the UN, writes that:
What the Convention requires is that the support should be based on trust, be provided
with respect and not against the will of the person with disabilities125.
and
Whereas... substituted decision making legally takes the place of an individual,

supported decision making may involve providing advice or information, discussing
123
Thomas Hammarberg, 'Persons with mental disabilities should be assisted but not deprived of their
individual human rights' (Council of Europe 2009)
<http://www.coe.int/t/commissioner/viewpoints/090921_en.asp> accessed 3 August 2013.
124
RD Dinerstein, 'Implementing legal capacity under Article 12 of the UN Convention on the Rights of Persons
with Disabilities: the difficult road from guardianship to supported decision-making' [2012] Human Rights Brief
8
125
CRPD Conference of Parties 2-4 September 2009 New York “The right to equal recognition before the law,
access to justice and supported decision making” Presentation by Ms. Edah Wangechi Maina, Vice-Chairperson
of the Committee on the Rights of Persons with Disabilities, page 2
42 | P a g e
options and consequences, communicating an individual's wishes or decisions to third
parties in order to interpret the will of an individual. All forms of personal support
shall empower the individual, give effect to his or her wishes and be free from
conflicts of interest126.
It is the requirement that the support available to help persons with disabilities should be
based on trust, not be provided against the will of the person with disabilities and should give
effect to his or her wishes. That is problematic for practice in England and Wales127. A good
example of a case which took place in the UK which shows this problematic area is that of
PCT V P128in which the:
The applicant’s primary care trust (T), supported by the local authority, sought an order for it
to provide independent living accommodation for the first respondent (P). The second
respondent (H), P's foster mother, opposed the application and sought to resume full-time
care of P. P was a 24-year-old man who had lived with H for some 18 years. P suffered from
a severe form of uncontrolled epilepsy and some learning disability and had been born into a
severely dysfunctional family. He had had at least 10 separate foster placements before being
placed with H. P suffered a life-threatening seizure after H withheld medication from him.
That episode prompted an application to the Court of Protection, which ordered that P be
assessed for ME, from which H claimed he suffered. The assessment found that P did not
suffer from ME. P had made clear that he did not want to leave H. H resented interference
from the healthcare professionals, whom she mistrusted. T argued that P did not have
capacity and could only regain capacity and begin to make true choices about what he wanted
for himself if he was removed from his current relationship with H.
In this case the Official Solicitor made a decision which he/she thought was in the best
interest of the person in question, but the interesting thing was that this decision was against
the wishes of the person on whose behalf the decision was being taken. This type of decision
shows that (in this case) a substitute decision was made in place of the CRPD recommended
supported decision making. This is precisely what is prescribed by the mechanisms of the
MCA - if a person lacks capacity to make a particular decision (in this case, decisions about
litigation), then decisions should be taken on their behalf in their best interests (MCA
126
ibid
127
Lucy Series, Is the Mental Capacity Act 2005 too paternalistic? [Thesmallplaces] Wednesday, 24 August
2011http://thesmallplaces.blogspot.co.uk/2011/08/just-how-liberal-is-mental-capacity-act.html (accessed
8/08/2013)
128
[2011] 1 F.L.R. 287
43 | P a g e
s1(5))129. Decision takers must make efforts to take into account the past and present views of
the relevant person but they are not determinative of best interests (MCA s4). With the use of
substitute decisions the question has to arise of protection against decisions which go against
the will of the person to whom the decision is being made about, in other words what
safeguards are present in the current MCA 2005. Currently within the MCA 2005 the
safeguards which are present are an application to the Court of Protection, a minimal degree
of monitoring of formal care settings by Care Quality Commission and other complaints
mechanisms. According to Lucy Series the ‘general defence’ mechanism of s5 and s6 MCA
effectively ‘fractures’ the authority for different types of decisions, and hands it to a whole
range of organisations and individuals, meaning it is much harder to keep track of and
monitor who decides what130. This is resulting in a complex system of challenging decisions
made as substitute in the best interest of the person, for example considering the Court of
Protection in regards to The Deprivation of Liberty Safeguards (DoLS)131
“The DOL Safeguards are cumbersome and unpopular with nearly all those who have
to deal with them. The only appeal avenue is to the Court of Protection at
considerable expense. Often, the case has to be heard in London, a long way from
where the person subject to the DOLS (and their family and the professionals
concerned) is based. DOLS cases are mainly still heard before the senior judiciary,
with the effect that counsel is often relied upon. The costs are often many times in
excess of the costs of even the most complex tribunal.”132
Complex safeguards in situations like these could lead to the deprivation of liberty, because if
you consider situations like the ones Dunn et al133 provided; potential difficulties with the
129
An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done,
or made, in his best interests.
130
Lucy Series, 'Is the Mental Capacity Act 2005 out of step with the Council of Europe?'
(mentalhealthandcapacitylaw.wordpress, March 7, 2012)
<http://mentalhealthandcapacitylaw.wordpress.com/2012/03/07/is-the-mental-capacity-act-2005-out-of-
step-with-the-council-of-europe/> accessed 8th August 2013
131
The Deprivation of Liberty Safeguards (DoLS) is an addition to the 2005 Mental Capacity Act, introduced as
part of the 2007 Mental Health Act. They were designed to remedy the incompatibility between English law
and the European Convention on Human Rights identified in HL v UK, the “Bournewood” case, by creating a
procedure whereby people who lack capacity and who need to be protected from harm can, if it is deemed to
be necessary in their best interests, be lawfully detained in a hospital or care home.
132
Mental Health Lawyers Association, 'MHLA response to Consultation on Legal Aid, Sentencing and Punishing
of Offenders Bill' (Mental Health Lawyers Association 2011) <http://www.mhla.co.uk/legal-aid/mhla-response-
to-consultation-on-legal-aid-sentencing-and-punishing-of-offenders-bill/> accessed 8th August 2013
133
M. C. DUNN, , I. C. H. CLARE, A. J. HOLLAND, M. J. GUNN, , 'Constructing and reconstructing ‘best interests’:
An interpretive examination of substitute decision-making under the Mental Capacity Act 2005' [2007] Journal
of Social Welfare & Family Law 117
44 | P a g e
implementation of the best interests principles of the MCA, including decision-making by
family/friends who hold strong religious or moral positions leading to decisions based on the
carers’/relatives’ values, and/or social or cultural stereotypes based on age, gender or
disability134, or where social care staff are very personally involved over long periods of time.
Dunn et al argued that in such instances, there may be conflict in practice as a best interests
determination should ideally be “a detached and reflective procedure that is potentially
incompatible” with a personalised relationship. The best interests ‘checklist’ loses sensitivity
with specific scenarios and its relevance for practitioners was called into question. From the
scenarios provided above it can be seen why the access to safeguards are very important but
at present the safeguards are very much under question. David Behan, Chief Executive of the
Care Quality Commission said135:
“If someone has dementia or has a severe learning disability they can still contribute
to decisions about their care. If this is done properly then people will receive
appropriate care; if it is not done then people can be deprived of their liberty.
Understanding the Mental Capacity Act and the way it is applied is critical to good
quality, safe care. Those providing services, must ensure that their staff understand
the Act and what it means for the care and treatment of people.”
But the report found some concerning findings in respect to the MCA:
There is still a lack of understanding of the MCA among some staff in hospitals and
care homes. If mental capacity is poorly understood, staff may be too quick to assume
that people they are caring for lack capacity in respect of all decision-making (for
example someone may lack capacity to make financial decisions but still be able to
make decisions about their care or treatment). They may not look for ways to
maximise people’s capacity and decisions made on their behalf may not always be
carried out within the best interest’s framework of the MCA. We know there have
134
Should be noted that there are safe guards present in the MCA 2005 to prevent this but it is argued that
situations like this could occur
135
Quote found at: The Care Quality Commission, 'CQC finds Mental Capacity Act not well understood across
all sectors and calls for more work by providers and commissioners to improve' (The Care Quality Commission
2013) <http://www.cqc.org.uk/media/cqc-finds-mental-capacity-act-not-well-understood-across-all-sectors-
and-calls-more-work-provi> accessed 9th August 2013
45 | P a g e
been instances where relatives and friends have been excluded from decision making
or asked to consent on behalf of the person in a way that is not lawful136.
This type of finding leads to the aspect of safeguards and in turn the report provided equally
concerning review of safeguards which are currently present under the MCA by saying:
The Safeguards have only been in operation for three years, and so are still relatively
new. In previous reports CQC has noted concerns about the complexity of the systems
surrounding the Safeguards…….. there was also evidence that, on some mental
health hospital wards, staff still did not understand the differences between the powers
of the MHA and the Safeguards and how to decide which legislation is the
appropriate one to use…… not always treated or cared for in ways that respect their
human rights – especially the right to liberty137
From these official reports there is a defined undertone of complexity running through the
MCA, and with complexity comes the inability to properly apply safeguards to substituted
decisions. With this uncertainty it leads to a piece of legislation, which in terms of taking
decisions on behalf of people in their best interests, not having the safeguards which are
easily assessable to challenge said decisions. In terms of the CRPD the supportive decisions
making process which has been suggested could be seen as the way to approach these
circumstances and its focus on the implementation of safeguards. Peter Bartlett addressed
this:
article 12(4) speaks of the importance of safeguards in the provision of capacity

legislation. It remains to be seen whether the safeguards provided in the existing
legislation are sufficient to meet the 12(4) requirements, but, even if they do not,
correction could be by way of fine-tuning the existing legislation, not fundamental
alteration of approach138.
It is interesting to read this because on the one hand the complexity of the current legislation
is under question yet Peter Bartlett says that in order for the current legislation to be in line
with that of a supportive decision making approach and the increase of safeguards to make
sure this supportive approach is possible only requires ‘fine-tuning the existing legislation’. It
136
Care Quality Commission Monitoring the use of the MCA DOLS in 2011/12, page 6, found at:
http://www.cqc.org.uk/sites/default/files/media/documents/dols_report_-_main_-_final.pdf
137
ibid
138
P Bartlett, 'The United Nations Convention on the Rights of Persons with Disabilities and the future of
mental health law' [2009] psychiatry journal 496
46 | P a g e
should also be noted that, it is difficult to see how one could entirely eliminate the need for
involuntary treatment for those who lack decision-making capacity and where it would be
clearly in their best interests. I know of no society that does not accept this position as
morally justified. The text of Article 12 does not prohibit substituted decision- making and
there is language which could even be used to justify139, this debate will continue, from this
thesis point of view the idea discriminatory application of substitute decision making when it
comes to the interaction of the MCA and the MHA is a concern. If substitute decision making
is required then having easy accessible, suitable safeguards in place to prevent
“misapplication” and easy continuous revaluation of the person state of capacity is of the
upmost importance.
In terms of Northern Ireland who said they will take this legislative opportunity to address the
need for safeguards for those who lack the capacity to consent to care in a hospital or care
home and who are deprived of their liberty in their best interests. At present, the detailed
proposals have not been developed. The Mental Health and Learning Disability Alliance have
recommended a single system of safeguards to apply in a unified bill to those who lack
capacity and are subject to compulsory interventions140. It notes that the complexity of two
separate systems of safeguards which apply under mental health and mental capacity
legislation elsewhere in the UK need not be replicated in Northern Ireland." They argue that
legislation should ensure that all those who lack capacity enjoy equal protection of the law by
being subject to one system of safeguards.' These safeguards should reflect the vulnerability
of those subject to the legislation and should be commensurate with the gravity of the
intervention141.
At this stage it is impossible to fully gauge the full implementation of the CRPD (especially
article 12) in Northern Ireland since the legislation is still being considered. But following the
logic of what was said above i.e. a single system of safeguards and and the best qualities of
the MCA are follow ( Peter Bartlett said that the MCA merely required fine tuning) then
concerns around safeguards could be addressed with Northern Irelands new legislation. What
this thesis would like to enter at this stage is that the present idea within Northern Ireland as
previously discussed is the implementation of a ‘fusion Legislation’. Within the fusion model
the idea of incapacity is still very much present and the use of substitute decision making is
139
A Dhanda, 'LEGAL CAPACITY IN THE DISABILITY RIGHTS CONVENTION: STRANGLEHOLD OF THE PAST OR
LODESTAR FOR THE FUTURE?' [2006-2007] Syracuse J. Int'l L. & Com 429
140
141
ibid
47 | P a g e
still present. The CRPD has the aim of removing the idea of substitute decision making to
supportive therefore it could be argued that the same problems surrounding this area could
still be present even within the fusion model that is being proposed within Northern Ireland.
What conditions then would need to be met for involuntary treatment to be justified under the
terms of the CRPD? The following appear key:
1. There must be ‘respect for inherent dignity and individual autonomy including the
freedom to make one’s own choices’ (as stated in Art 3).
2. There must be no ‘discrimination of any kind on the basis of disability’ (Art 4).
3. Persons must ‘enjoy legal capacity on an equal basis with others in all aspects of life’
(Art 12).
Fusion legislations main aim is to remove discrimination between physical disorders and
mental disorders with the aim of treating everyone as equals in the eyes of the law no matter
what the cause of the impairment of capacity.
48 | P a g e
Conclusion:
It is argued that liberty is a basic good. Isaiah Berlin captured this in a famous passage:
I wish my life and decisions to depend on myself, not on external forces of whatever
kind. I wish to be the instrument of my own, not of other men's, acts of will. I wish to
be a subject, not an object; to be moved by reasons, by conscious purposes, which are
my own, not by causes which affect me, as it were, from outside. I wish to be ... a
doer--deciding, not being decided for, self-directed and not acted upon by external
nature or by other men as if I were a thing, or an animal, or a slave incapable of
playing a human role, that is, of conceiving goals and policies of my own and
realising them.... I wish, above all, to be conscious of myself as a thinking, willing,
active being, bearing responsibility for my choices and able to explain them by
reference to my own ideas and purposes142
Isaiah Berlins vision of liberty is the ideal goal of all mental capacity legislation, the idea that
the person in question will have complete control of their own destiny should be the goal of
any piece of legislation when considering capacity to make decisions.
The reform project in Northern Ireland presents an opportunity to develop an ethically

consistent framework for the treatment and care of all those who lack the capacity to consent
to such treatment. This opportunity has been described by some writers as a “once-in-a-
generation opportunity to craft new legislation”143. This creates the incentive to be able to
change the views of how care and treatment of people who have impaired decision-making
capacity is administered. Introducing the type of legislation which has been discussed in the
Bamford review would put Northern Ireland at the forefront of incapacity legislation
especially in comparison to the rest of the UK. The opportunity currently before the
governing bodies in Northern Ireland, calls for policy innovation and political determination
to deliver the transformational approach to mental health and mental capacity law that will
serve as a lasting legacy of the local administration.
The current problem with the opportunity in relation to Northern Ireland and the new
incapacity legislation is that it is very much still an opportunity i.e. the legislation is still
under consideration and nothing has been finalised. It could be argued this is very much
142
Isaiah Berlin, Four Essays on Liberty (1st, Oxford Paperbacks, Oxford 1969)
143
R Daw, 'The Mental Health Act 2007 - The Defeat of an Ideal' [2007] J. Mental Health L 131, 147; also see: M
McCallion, U O'Hare, 'A new legislative framework for mental capacity and mental health legislation in
Northern Ireland: an analysis of the current proposals' [2010] Special Ed. J. Mental Health L 84, 88
49 | P a g e
understandable because of the various influences which are in need of being addressed. The
influences which this thesis has highlighted are:
1. the interaction between mental capacity and mental health laws and the
discrimination which can arise in this separation of the two,
2. the shadow which is being currently cast by the UN Convention on the Rights of
Persons with Disabilities and the movement they want to a more supportive
framework from a guardianship/substitute framework
3. the safeguards which surround said legislation
Currently under consideration within Northern Ireland is the idea of using fusion legislation
i.e. the fusion of mental capacity legislation and mental health legislation. The idea of this is
to try and eliminate the discrimination which can presently be found within the current legal
set up in England and Wales (Mental Capacity Act 2005 and the Mental Health Act 2007).
Mental health legislation, as currently conceived in most jurisdictions, discriminates against
people with a mental illness. It carries underlying assumptions that people with such illnesses
are not fully autonomous and that they are dangerous to others. Thus such legislation
reinforces damaging stereotypes of people with a mental illness. The fusion legislation model
introduces the idea that decision-making capacity is at its centre, but which clearly defines
how the use of detention and force are to be governed. This comprehensive law is designed to
apply to all persons who lack capacity, from whatever cause and in whatever healthcare
setting. The fusion legislation at present is the chosen route of Northern Ireland and with the
issues surrounding separate legislation as highlighted in England and Wales then this thesis
agrees that this is the best approach currently available.
With regards to the CRPD the influence is wide spreading and as discussed Northern Ireland
is very much taking this piece of legislation seriously when it comes to the formulation of
new legislation. In terms of capacity, the CPRD can be seen as a way of empowering or
trying to overcome the idea that a person with a disability or other form of mental illness does
not have the capacity to make their own decisions. Article 5(3) CRPD shows the need for
creation of a system of accommodating the person with appropriate modification of the
current system in order to reduce the burden and make sure the person with disabilities enjoys
the same human rights and fundamental freedoms of others in society. This seems to remove
the idea of guardianship/substitute framework to supportive process, but the argument exists,
is it possible to fully embrace supportive decision making? The answer seems to be presently
50 | P a g e
no. The idea of deprivation of legal capacity can still be justified, albeit in controlled
circumstances. Considering deprivation of legal capacity on the European level the European
court of Human Rights144 continues to recognise mental disorders as a possible justification
for limiting legal capacity (although it is being addressed). The issue seems to revolve around
weighting of interference for example at what point should the need to support someone with
decision making cease in order to benefit the greater social issue that may need addressing?
The final issue highlighted was the safeguards surrounding mental capacity legislation.
Various aspects in respect to the MCA 2005 were concerning. The main concern surrounded
the complexity of the safeguards, which have lead to accusations that they are cumbersome
and unpopular by nearly all those who have to deal with them. The only appeal avenue is to
the Court of Protection at considerable expense. Often, the case has to be heard in London, a
long way from where the person subject to the DOLS (and their family and the professionals
concerned) is based. DOLS cases are mainly still heard before the senior judiciary, with the
effect that counsel is often relied upon. The costs are often many times in excess of the costs
of even the most complex tribunal. This lack of understanding of the MCA among some staff
in hospitals and care homes has lead to staff assuming that people they are caring for lack
capacity in respect of all decision-making (for example someone may lack capacity to make
financial decisions but still be able to make decisions about their care or treatment). And the
staff may not look for ways to maximise people’s capacity and decisions made on their behalf
may not always be carried out within the best interest’s framework of the MCA. This is very
much one area in need of a major rethink when it comes to the implementation of new
legislation in Northern Ireland. At present the idea is a single system of safeguards to apply in
a unified bill to those who lack capacity and are subject to compulsory interventions145. This
should ensure that all those who lack capacity enjoy equal protection of the law by being
subject to one system of safeguards.' These safeguards should reflect the vulnerability of
those subject to the legislation and should be commensurate with the gravity of the
intervention.
Overall incapacity legislation is very complex; it is a balancing act between supporting

people to make their own decisions and making the correct decision on behalf of someone in
their best interest. But is law focusing too much on establishing autonomy? Is this really what
144
See: Stanev v Bulgaria application No.36760/06, 17 January 2012, para 244 and 250-252; Salontaji-Drobnjak
v. Serbia (application no. 36500 / 05 ) para 144
145
51 | P a g e
people who may be lacking capacity really want? Researchers that have talked to those
suffering dementia have reported that what was most important to those persons was that they
were regarded as of value and of use. Sufferers reported their major concern being not so
much a loss of cognition or identity, but the loss of value and the loss of relationships with
others146. Legal systems which have an emphasis on rationality and individuality reinforces
these concerns rather than seeking to address them. Rational decisions are not the only forms
of human interaction that deserve protection and respect. Current law may have elevated
autonomy to such a status that the other ways of relating to the world outside the rational
have been ignored by the law. It can be argued that the law does not respect the humanity of
incompetent people by attaching no legal weight to their feelings and wishes, beyond what
they may reveal about a person's best interests.147In general this thesis agrees with the
approach of the CRPD as in supportive decision making should be encouraged that even
when decisions are made mistakes may occur, it is part of human nature to make bad
decisions. But it also realises that supportive decision making may not always be possible,
and truly a decision will have to be made on behalf of the person in question. In terms of
Northern Ireland the fusion legislation, at present, is the best route in advancing new
incapacity legislation; it removes discrimination, makes the safeguards less complex and yet
understands that there may be the need for intervention when it comes to the best interests of
the person. The concern for legislation is that yes it may address one issue of mental capacity
but is it impossible to address every concern which arises under mental capacity law; in truth
compromise may be the only solution currently available.
146
E Steeman, J Godderis, M Grypdonck, N De Bal & BDierckx De Casterld, 'Living with Dementia from the
Perspective of Older People: Is it a Positive Story?' [2007] Aging & Mental Health 119
147
J Herring, 'Entering the Fog: On the Borderlines of Mental Capacity' [2008] Ind. L.J. 1619, 1648
52 | P a g e
Bibliography
• A Alonzi, 'THE MENTAL CAPACITY ACT 2005 AND THE CODE OF

PRACTICE: AN INTRODUCTION' [2008] NOTTINGHAM LAW JOURNAL 44
• A Dhanda, 'LEGAL CAPACITY IN THE DISABILITY RIGHTS CONVENTION:
STRANGLEHOLD OF THE PAST OR LODESTAR FOR THE FUTURE?' [2006-
2007] Syracuse J. Int'l L. & Com 429
• A Holland, 'The model law of Szmukler, Dawson and Daw - the next stage of a long
campaign.?' [2010] Special Ed. J. Mental Health L 63
• A Zigmond, 'Deprivation of liberty safeguards and the Mental Capacity Act' [2009]
BMJ 2009; 338
• Assessing decision-making capacity: children under 16. Nurse Prescribing. Vol 6, No
6
• Assessment of mental capacity Guidance for Doctors and lawyers (British medical
association and the law society, 2nd ed, 2004, BMJ Publishing Group)
• B Dimond , Legal Aspects of Mental Capacity (1st, Blackwell Publishing , Oxford
2008)
• Baroness Ashton of Upholland House of Lords Hansard 17th January 2007, column
763
• Best interests decision-making under the Mental Capacity Act The Essex Autonomy
Project Green Paper Technical Report Lead Author: Antal Szerletics
• Beverley’s Case 4 Coke‟s Rep. 126b, 76 E.R. 1118
• Caims R, Maddock C, Bucharila A. AS David, P Hayward, G Richardson, G
Szrnukler, M Hotf , ''Reliability of mental capacity assessment in psychiatric in-
patients' [2005] British Journal of Psychiatry 372
• Care Quality Commission Monitoring the use of the MCA DOLS in 2011/12, found at:
http://www.cqc.org.uk/sites/default/files/media/documents/dols_report_-_main_-
_final.pdf
• Centre on Human Rights for People with Disabilities, Mental Capacity (Health,
Welfare and Finance) Bill report, Found at:
http://www.disabilityaction.org/fs/doc/publications/mental-capacity-bill-briefing-
paper.pdf
53 | P a g e
• CRPD Conference of Parties 2-4 September 2009 New York “The right to equal
recognition before the law, access to justice and supported decision making”
Presentation by Ms. Edah Wangechi Maina, Vice-Chairperson of the Committee on
the Rights of Persons with Disabilities
• D.P Herlihy, F Holloway, 'The Mental Health Act and the Mental Capacity Act:
untangling the relationship' [2009] Psychiatry 478
• DELIVERING THE BAMFORD VISION THE RESPONSE OF NORTHERN
IRELAND EXECUTIVE TO THE BAMFORD REVIEW OF MENTAL HEALTH
AND LEARNING DISABILITY, Found at:
www.dhsspsni.gov.uk/bamford_action_plan_2009-2011.pdf
• Denzil Lush, The Mental Capacity Act and the new Court of Protection, J. Mental
Health L, 2005, 31
• DHSSPS (2003) Reference Guide to consent for examination, treatment or care
• Disability programmes and policies: How does Northern Ireland measure up?
Monitoring Implementation (public policy and programmes) of the United Nations
Convention on the Rights of Persons with Disabilities (“UNCRPD”) in Northern
Ireland. Colin Harper, Simon McClenahan, Dr Bronagh Byrne and Hannah Russell
Found at:
http://www.disabilityaction.org/fs/doc/publications/uncrpdfullreportfinal260112.pdf
• Dr. Lesley-Ann Black, Research and Information Service Research Paper The Mental
Capacity Bill and Children under 16, NIAR 366-12, papers 146-12
• E. (Mrs.) v. Eve [1986] 2 S.C.R. 388
• E Steeman, J Godderis, M Grypdonck, N De Bal & B Dierckx De Casterld, 'Living

with Dementia from the Perspective of Older People: Is it a Positive Story?' [2007]
Aging & Mental Health 119
• Equal recognition before the law and equal capacity to act: understanding and
implementing Article 12 of the UN Convention on the Rights of Persons with
Disabilities EDF Position paper - October 2009: available at:
http://cms.horus.be/files/99909/MediaArchive/library/EDF_positon_on_equal_recogn
ition_before_the_law_under_Article12_UNCRPD.doc
• G Szmukler, R Daw, J Dawson, 'A model law fusing incapacity and mental health
legislation' [2010] Journal of Mental Health Law 1
54 | P a g e
• Gerard Quinn, ‘personhood & Legal Capacity perspectives on the paradigm shift of
Article 12 CRPD’,HPOD conference Harvard Law school, 20 February 2010
• George Szmukler, 'How mental health legislation discriminates unfairly against
people with mental illness ' (barristermagazine 2012)
<http://www.barristermagazine.com/archive-articles/issue-45/how-mental-health-
legislation-discriminates-unfairly-against-people-with-mental-illness.html>
• GJ v The Foundation Trust [2009] EWHC 2972 (Fam)
• HL v the United Kingdom 45508/99 (2004) ECHR 471
• Isaiah Berlin, Four Essays on Liberty (1st, Oxford Paperbacks, Oxford 1969)
• J Cowan, 'CLINICAL RISK MANAGEMENT Are we prepared for the Mental
Capacity Act?' [2007] CGIJ 64
• J Herring, 'Entering the Fog: On the Borderlines of Mental Capacity' [2008] Ind. L.J.
1619
• K Gledhill, 'The Role of Capacity in Mental Health Laws- Recent Reviews and
Legislation' [2010] Special Ed. J. Mental Health L 129
• Law Commission Mental incapacity London: HHMSO, 1995 (Law Com No 231)
• LEGISLATIVE FRAMEWORK FOR MENTAL CAPACITY AND MENTAL
HEALTH LEGISLATION IN NORTHERN IRELAND, found at:
www.dhsspsni.gov.uk/legislative-framework-for-mental-capacity.pdf
• Lucy Series A challenge: Re-imagining capacity[Thesmallplaces] Friday, 4 May 2012
http://thesmallplaces.blogspot.co.uk/2012/05/challenge-re-imagining-capacity.html
• Lucy Series Is Article 12 keeping you awake at night? [Thesmallplaces] 26 September
2011http://thesmallplaces.blogspot.co.uk/2011/09/is-article-12-keeping-you-awake-
at.html
• Lucy Series, Is the Mental Capacity Act 2005 too paternalistic? [Thesmallplaces]
Wednesday, 24 August 2011http://thesmallplaces.blogspot.co.uk/2011/08/just-how-
liberal-is-mental-capacity-act.html
• Lucy Series, 'Is the Mental Capacity Act 2005 out of step with the Council of
Europe?' (mentalhealthandcapacitylaw.wordpress, March 7, 2012)
<http://mentalhealthandcapacitylaw.wordpress.com/2012/03/07/is-the-mental-
capacity-act-2005-out-of-step-with-the-council-of-europe/>
• M. C. DUNN, , I. C. H. CLARE, A. J. HOLLAND, M. J. GUNN, , 'Constructing and
reconstructing ‘best interests’: An interpretive examination of substitute decision-
55 | P a g e
making under the Mental Capacity Act 2005' [2007] Journal of Social Welfare &
Family Law 117
• Martin Masterman-Lister (1) Jewell (2) Home Counties Dairies and Martin
Masterman-Lister v Brutton & Co [2002] Op cit
• M. Nowak, U.N. Covenant on Civil and Political Rights : CCPR Commentary, 2nd
revised edition, N.P. Engel Publisher, 2005
• M McCallion, U O'Hare, 'A new legislative framework for mental capacity and
mental health legislation in Northern Ireland: an analysis of the current proposals'
[2010] Special Ed. J. Mental Health L 84
• Mental Capacity Act 2005
• Mental Capacity Act 2005 Code of Practices
• Mental Health Act 2007
• Mental Health (Northern Ireland) Order (1986)
• Mental Health Foundation Website. What is mental capacity? Available online at:
http://www.amcat.org.uk/what_is_mental_capacity/
• Mental Health Lawyers Association, 'MHLA response to Consultation on Legal Aid,
Sentencing and Punishing of Offenders Bill' (Mental Health Lawyers Association
2011) <http://www.mhla.co.uk/legal-aid/mhla-response-to-consultation-on-legal-aid-
sentencing-and-punishing-of-offenders-bill/>
• Ministry of Justice. Deprivation of liberty safeguards. Code of Practice to supplement
the main Mental Capacity Act 2005 Code of Practice. London: The Stationery Office;
2008
• National Health Service Trust v Bland, [1993] 1 All ER 821
• Norfolk v Norwich Healthcare (NHS) Trust [1996] 2 FLR 613
• O Ward, 'The Mental Capacity Act 2005 (England And Wales) - A New Legal
Framework For Decision-Making' [2005] N. Ir. Legal Q. 275
• P Bartlett, 'The United Nations Convention on the Rights of Persons with Disabilities
and the future of mental health law' [2009] psychiatry journal 496
• P Bartlett and R Sandland, Mental health law policy and practice (3rd, Oxford
University Press, Oxford 2007)
• PCT V P [2011] 1 F.L.R. 287
56 | P a g e
• Peter Bartlett, Oliver Lewis and Oliver Thorold, 'Mental Disability and the European
Convention on Human Rights' [2007] Human Rights Law Review
• R (Burke) v. Gen. Med. Council, [2005] EWCA 1003 (Eng.)
• R Cairns, G Richardson, M Hotopf, 'Deprivation of liberty: Mental Capacity Act
safeguards versus the Mental Health Act' [2010] Psychiatrist 247
• R Daw, 'The Mental Health Act 2007 - The Defeat of an Ideal' [2007] J. Mental
Health L 131, 147
• R(on the application of Wilkinson) v Broadmoor Special Hospital authority and
others [2002] 1 WLR 419
• R Robinson , 'Amending the Mental Capacity Act 2005 to provide for deprivation of
liberty ' [2007] Journal of Mental Health Law 27RD Dinerstein, 'Implementing legal
capacity under Article 12 of the UN Convention on the Rights of Persons with
Disabilities: the difficult road from guardianship to supported decision-making'
[2012] Human Rights Brief 8
• Re B (Adult: refusal of Medical Treatment) [2002] 2 All ER 449
• Re C [1992] 1 FLR 51
• Re C (Adult: Refusal of Medical Treatment) [1994] 1 All ER 819
• Re F (Mental patient sterilisation) [1990] 2 AC 1
• Re MB (medical treatment) [1997] 2 FLR 426
• Re S (Hospital Patient: court’s Jurisdiction) [1995] 3 All ER 290 (CA)
• Re SB (A patient; capacity to consent to termination) [2013] EWHC 1417 (COP)
• Re T (Adult: Refusal of Treatment), [1993] Farn. 95 (Eng.)
• Research and Information Service Briefing Paper 1 Paper 27/12 3 February 2012
NIAR 057-12 Michael Potter Disability Legislation and Policy Found at:
http://www.niassembly.gov.uk/Documents/RaISe/Publications/2012/ofmdfm/2712.pd
f
• Salontaji-Drobnjak v. Serbia (application no. 36500 / 05 )
• Shtukaturov v Russia [EHRR, 44009/05, 27 March 2008]
• Sir William Blackstone, Commentaries on the Laws of England (1765-1769), Book 1,
Chapter 8, Branch 18. Available at http://www.lonang.com/exlibris/blackstone/
• Stanev v Bulgaria application No.36760/06, 17 January 2012
• The Bamford Review, A Comprehensive Legal Framework, Executive Summary,
August 2007
57 | P a g e
• The Care Quality Commission, 'CQC finds Mental Capacity Act not well understood
across all sectors and calls for more work by providers and commissioners to improve'
(The Care Quality Commission 2013) http://www.cqc.org.uk/media/cqc-finds-mental-
capacity-act-not-well-understood-across-all-sectors-and-calls-more-work-provi
• The Centre for Disability Law & Policy NUI Galway Submission on Legal Capacity
the Oireachtas Committee on Justice, Defence & Equality available at:
http://www.nuigalway.ie/cdlp/documents/cdlp_submission_on_legal_capacity_the_oi
reachtas_committee_on_justice_defence_and_equality_.pdf
• Thomas Hammarberg, 'Persons with mental disabilities should be assisted but not
deprived of their individual human rights' (Council of Europe 2009)
• UN Convention on the Rights of Persons with Disabilities
• Who gets to decide? Right to legal capacity for persons with intellectual and
psychosocial disabilities, commissioner for human rights,
CommDH/IssuePaper(2012)2 , found at:
• Winterwerp v Netherlands 6301/73 (1979) ECHR 4
58 | P a g e
Appendices
Appendix 1:
59 | P a g e

Mental Capacity Diss

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Mental Capacity Diss

Uploaded by

Copyright:

Available Formats

School of Law

PGT Dissertation Cover Sheet

Dissertation Supervisor: Dr Mark flear

Stated submission deadline 16/09/2013

Date handed in 05/09/2013

Please tick this box to agree to this statement: ¨

Please tick this box to agree to this statement: ¨

Use of Internet resources:

• Queens University Database

Within these databases certain search terms included:

1. They cannot understand information given to them

...there is no English authority on the question whether as a matter of common law

• Guardianship and management of the patients’ property and affairs.

• Individuals with a mental disorder within the criminal justice system.

United Nations Convention on the Rights of Persons with Disabilities

“Grounds for interfering with a person’s autonomy should be based primarily on

MCA 2005 interaction with Mental Health legislation:

the lack of sufficient attention to powers governing emergency treatment, forced

after discussions between interested departments within the Northern Ireland

MCA relationship to the CRPD and addressing the safeguard problems

• The presumption of capacity (s1(2));

“This judgment must be interpreted to promote an approach in line with the UN

Whereas... substituted decision making legally takes the place of an individual,

article 12(4) speaks of the importance of safeguards in the provision of capacity

The reform project in Northern Ireland presents an opportunity to develop an ethically

Overall incapacity legislation is very complex; it is a balancing act between supporting

• A Alonzi, 'THE MENTAL CAPACITY ACT 2005 AND THE CODE OF

• E Steeman, J Godderis, M Grypdonck, N De Bal & B Dierckx De Casterld, 'Living

You might also like