Interplay with the MHA 1983(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:physical disordersMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, andMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:physical disordersMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:mental disordersMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:mental disordersMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:treating mental disorders without consentMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:scheme set out in original MCAMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:mental disordersMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:treating mental disorders without consentMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:scheme set out in original MCAMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:mental disordersMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, andMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:treating mental disorders without consentMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:scheme set out in original MCAMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:mental disordersMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, andMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:treating mental disorders without consentMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:scheme set out in original MCAMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:mental disordersMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:treating mental disorders without consentMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:scheme set out in original MCAMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:mental disordersMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, andMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:treating mental disorders without consentMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:scheme set out in original MCAMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:mental disordersMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, andMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:treating mental disorders without consentMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:scheme set out in original MCAMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:mental disordersMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:treating mental disorders without consentMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:scheme set out in original MCAMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:mental disordersMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:treating mental disorders without consentMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:scheme set out in original MCAMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:mental disordersMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:treating mental disorders without consentMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:scheme set out in original MCAMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:mental disordersMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:treating mental disorders without consentMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:scheme set out in original MCAMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:mental disordersMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:treating mental disorders without consentMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:scheme set out in original MCAMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:mental disordersMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, andMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:treating mental disorders without consentMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:scheme set out in original MCAMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:mental disordersMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, andMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 2007, and:community treatment orderMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:treating mental disorders without consentMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:scheme set out in original MCAMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:mental disordersMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, andCommunity treatment orderMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:treating mental disorders without consentMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:scheme set out in original MCAMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:mental disordersMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, andMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:treating mental disorders without consentMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:scheme set out in original MCAMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:mental disordersMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 2007, andMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:treating mental disorders without consentMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:scheme set out in original MCAMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:mental disordersMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, andMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 2007, andMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:treating mental disorders without consentMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:scheme set out in original MCAMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:mental disordersMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, andMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 2007, andMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:treating mental disorders without consentMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:scheme set out in original MCAMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:mental disordersMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, andMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:treating mental disorders without consentMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:scheme set out in original MCAMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:mental disordersMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:treating mental disorders without consentMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:scheme set out in original MCAMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:mental disordersMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:deprivation of liberty, andMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, andDeprivation of liberty:MHA 1983, andCodes of Practice:Deprivation of Liberty Safeguards (DOLS) Code of Practice to supplement the main Mental Capacity Act 2005 Code of Practice (2008)(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, and:deprivation of liberty, andMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:MHA 1983, andDeprivation of liberty:MHA 1983, and
3.205The final matter to deal with in any overview of the personal welfare provisions is the interplay between the MCA 2005 and the MHA 1983.
Treating physical disorders
3.206We have seen that it is relatively easy to understand when the MCA 2005 mechanisms apply in the case of care or treatment for a physical disorder such as a heart or liver disorder:
3.207Because the MHA 1983 is only concerned with the treatment of mental disorders, (subject to one small caveat) the legal position of ‘sectioned’ patients with regard to treating their physical health problems is exactly the same as for everyone else, and is that set out in the diagram above.
Treating mental disorders
3.208What then is the legal position where the proposed treatment is treatment for a mental disorder? Does the MHA 1983 or the MCA 2005 apply?
3.209It is easier to understand the position if one considers first the simpler scheme set out in the MCA 2005 as originally enacted, before considering the modifications introduced by subsequent amendments.
The scheme set out in the original MCA 2005
3.210The simpler scheme set out in the MCA 2005 as originally enacted was as follows:
•The general rule is (and remains) that the MCA 2005 applies whenever you wish to give care or treatment to an incapacitated person outside the terms of the MHA 1983.
•In other words, if the patient’s treatment is covered by the terms of the MHA 1983 then that Act applies.
•If their treatment falls outside the MHA 1983 then the MCA 2005 will apply.
•Treatment may fall outside the MHA 1983 because it is treatment for a physical health problem (see above); or it may fall outside because it is treatment for a mental health problem but the MHA 1983 does not authorise giving it without the person’s consent.
•In the second case, one then has to see if there is legal authority outside the MHA 1983 to give the treatment without the person’s consent, which takes us to the MCA 2005.
•When then is treatment for mental disorder without consent not authorised under the MHA 1983? The simple answer is: when the individual is not subject to a section of that Act which authorises psychiatric treatment without consent.
•As is well-known, if a person has been ‘sectioned’ under the MHA 1983 the fact that the person is ‘under a section’ may permit professionals to give them psychiatric treatment without consent. If this is the case then the treatment is authorised under the MHA 1983 and it is not necessary to establish whether it is authorised under the MCA 2005.
•However, relatively few sections of the MHA 1983 in fact authorise treating an individual without their consent:
TREATING MENTAL DISORDER WITHOUT CONSENT |
Authorised by the MHA 1983 (or MHA 1983 rules apply) | Not authorised – apply the MCA 2005 |
Section 2 patients (those liable to be detained in hospital for assessment and any necessary treatment for up to 28 days) | Informal patients (those in hospital and in the community who are not presently subject to a section of the MHA 1983) |
Section 3 patients (those liable to be detained in hospital for treatment for up to six or 12 months at a time) | Patients detained under the short-term sections of the MHA 1983 that have a maximum duration of 72 hours or less (ss4, 5(2), 5(4), 135, 136) |
Patients subject to a Community Treatment Order | Patients subject to guardianship under the MHA 1983 |
| Conditionally discharged restricted patients |
| Persons remanded to hospital by a criminal court for a report on their mental condition under MHA 1983 s35 |
| Persons in prison, eg prison medical units |
3.211Naturally, many people find this confusing. When studying the right-hand column, it seems odd to them that a person may be detained or subject to a MHA 1983 ‘order’ – such as short-term detention or guardianship – but their treatment or care be governed by a different Act, the MCA 2005.
3.212The reason for this relates to the framework of the MHA 1983 and its interplay with the old common law rules which the MCA 2005 replaced. As enacted, the framework constructed by the MHA 1983 was more liberal than much of today’s legislation.
3.213Subject to complying with various procedural safeguards set out in Part IV of the Act, such as obtaining a second-opinion, persons who were liable to be detained in hospital for up to 28 days (section 2) or for up to six months or more (section 3 and its criminal law equivalents) could be treated without their consent. In their case, their compulsory admission was founded on an application made, in most cases, by an independent approved social worker supported by two medical recommendations, one provided by a specialist.
3.214People who were not considered to be so unwell as to require detention in hospital for those sorts of period were not liable to treatment without their consent under the Act, and therefore could only be so treated in the limited circumstances then permitted by the common law. These are all the people in the right-hand column now covered by the MCA 2005.
3.215As can be seen from the right-hand column, the vast majority of people with mental health problems fell within this category, because on any given day relatively few people are subject to one of the more Draconian sections in the left-hand column.
3.216Looking at who is in the right-hand column, the purpose of the holding sections with a maximum duration of 72 hours or less is to enable a person to be assessed, most often with a view to making an application under section 2 or 3. Because they have not yet been detained on the basis of an application supported by two medical recommendations, the MHA 1983 does not authorise their treatment without consent. Any treatment during this period had to be justifiable under common law.
3.217The MCA 2005 replaced the common law in this area; hence the person is detained under one Act but potentially treatable under another.
3.218Similarly, the MHA 1983 did not authorise giving treatment without consent to persons on community orders such as guardianship and those who had been conditionally discharged. Only patients who were liable to detention were liable to treatment without consent under the Act; and only then if the person was subject to the longer sections and certain legal formalities were observed. Similarly, therefore, any treatment without consent was given under the common law, which now has been replaced by the MCA 2005.
3.219In diagrammatic form, therefore, the relationship with the MHA 1983 set out in the MCA 2005 in its original form was as follows:
3.220Looking at the diagram, where it was proposed to give a person treatment for mental disorder – antipsychotics, antidepressants, other medication, ECT, etc – that person’s situation would come within one of three legal groups, each of which is represented by a segment of the circle:
•If the person was subject to section 2 or one of the treatment orders in the MHA 1983, such as section 3, the rules in (Part IV of) the MHA 1983 applied and, subject to complying with the procedural safeguards set out there, the patient was liable to treatment without their consent.
•If the citizen was not subject to one of those MHA 1983 sections, they retained a citizen’s usual rights and were in the same legal position as everyone else. If they had capacity (or, strictly speaking, it could not be established that they lacked it) then treatment required their consent; in short, they could refuse it. If they lacked capacity to make a decision about the treatment then the MCA 2005 applied – unless the patient was ‘sectioned’ at that point and taken into section 2 of the Act or one of its treatment sections, such as section 3.
3.221And that is the purpose of the connectors in the diagram. The individual’s situation is fluid, not static – the membranes (lines) separating the three segments are permeable and the individual will move across the lines from one segment to another as their mental health and capacity fluctuates, they are sectioned under section 2 or 3 or released from liability to detention under section 2 or 3.
3.222That was the situation when the MCA 2005 first came into force but it has now been complicated by the MHA 2007.
3.223There were two main changes to the simpler structure just described.
3.224First, the MHA 2007 inserted a new ‘community treatment order’ (CTO) in the MHA 1983. The legal rules governing the treatment of patients on a CTO are set out in Parts 4 and 4A of the MHA 1983. The general rule is that if it is proposed to give treatment for mental disorder to a person on a CTO you apply the legal framework in Parts 4 and 4A of the MHA 1983. Our diagram now becomes:
3.225As can be seen, the individual may now be in one of four groups, and be moving between four groups.
3.226As with most post-1983 mental health legislation, it is questionable whether the practical benefits justify the extra complexity and the legislation is poorly constructed.
3.227The second significant change related to ECT. As far as antipsychotic and other medication for mental disorder is concerned, sectioning a person under section 2 or 3 still has the same effect as before: the MHA rules apply, not the MCA 2005. Because, as we have seen, the former permit treatment without consent, from a psychiatrist’s point of view this may be a ‘trump card’ in terms of overcoming a patient’s refusal to take prescribed medication. (Once the section comes to an end and the patient reverts to informal status, the same problem may of course represent itself.)
3.228When it comes to ECT, however, taking a person into one of the treatment sections of the MHA (ss2, 3, etc) no longer necessarily has the effect of ‘trumping’ or circumventing the protections of the MCA 2005.
3.229The new ECT rules inserted into the MHA 1983 by the MHA 2007 provide that a section 2 or treatment order patient with capacity cannot be given ECT to which they do not consent unless it can be justified as urgent treatment which is necessary to save their life or immediately necessary to prevent a serious deterioration of their condition.
1For the precise criteria, see MHA 1983 s62.3.230Likewise, unless it can be justified as urgent treatment on these terms, an incapacitated section 2 or treatment order patient cannot be given ECT if it would conflict with a relevant advance decision or with a decision made by the Court of Protection, a Court of Protection appointed deputy or a donee appointed under a personal welfare LPA.
3.231What we see here for the first time is the autonomy provisions in the MCA 2005 starting to infiltrate and cut down the compulsory treatment provisions in the MHA 1983, at least as far as ECT is concerned, and the position is very similar with regard to CTOs.
2See eg MHA 1983 s64D.Deprivation of liberty and the MHA 1983
3.232Turning to the interplay between the detention provisions in the MHA 1983 and the deprivation of liberty provisions in the MCA 2005, the MHA 1983 only permits detention in a hospital. The standard authorisation scheme in the MCA 2005 applies to hospitals and care homes; and the Court of Protection can also authorise deprivation of liberty in any other location.
3.233Where a person requires detention in a hospital for psychiatric treatment, the MCA 2005 is not to be used (in preference to the MHA 1983) if the individual falls within any of the following groups:
•People who are currently detained in a hospital under one of the following sections of the MHA 1983: sections 2, 3, 4, 35–38, 44, 45A, 47, 48, 51.
•People who, though not currently detained, are subject to one of these sections or to a CTO, if the care or treatment in question consists wholly or partly of medical treatment for mental disorder in a hospital.
•People who, though not currently detained, are subject to one of these sections, or to a CTO or guardianship, if accommodating them in the hospital or care home under the MCA 2005 would conflict with a requirement imposed on them under their MHA 1983 section.
•People who are subject to guardianship under the MHA 1983, if they object to being accommodated in the particular hospital for the purpose of being given some or all of the proposed medical treatment for their mental disorder (unless they have a donee or deputy who consents to each matter to which they objects).
•People who meet the criteria for being sectioned under section 2 or 3 of the MHA 1983, if they object to being accommodated in the particular hospital for the purpose of being given some or all of the proposed medical treatment for their mental disorder (unless they have a donee or deputy who consents to each matter to which they object).