The Mental Health Bill that repeals and replaces the MHA 1992 is currently working its way through Parliament having received a recommendation from the Health Select Committee that it be passed.
There are new criteria that would have to be satisfied before a person could be subject to compulsory care. In keeping with a more modern approach to compulsory care, incapacity to consent to treatment is a criterion. The person would have to have seriously impaired mental capacity that causes, or is likely to cause, in the near future serious adverse effects in the absence of care and has caused the person to lack capacity to make decisions about their own mental health care.
While there remains a presumption to have capacity to make decisions about mental health care there are some nuances that will make assessing capacity in this context, a different exercise to the approach taken under the PPPR Act 1988.
The Mental Health Bill will also apply a number of compulsory care principles including a therapeutic purpose, a least restrictive application, supported and responsive application and the dignity of risk.
This presentation will explore the new definition of “capacity to make decisions about a person’s mental health care” and the ethical principles that could apply to the assessment of mental capacity in the compulsory care context. It will consider the current approach for assessing adult decision-making capacity and the importance of consistency for fairness and transparency for those who will become subject to the new MHA.