Mental capacity and mental health acts part 3: deprivation of liberty

Following the introduction of the deprivation of liberty safeguards, the courts initially insisted that a deprivation of liberty for the treatment of a mental disorder was authorised under a section of the Mental Health Act 1983 as it had primacy in matters concerning mental disorder (GJ v The Foundation Trust [2009]). The courts later refined that approach to primacy and accepted that, where appropriate, decision makers could use either the Mental Health Act 1983 or the Mental Capacity Act 2005 deprivation of liberty safeguards to authorise a deprivation of liberty for the treatment of a mental disorder. In this third article on the interface between the Mental Health Act 1983 and Mental Capacity Act 2005, the author considers when it would be necessary to detain an adult who lacked capacity under the Mental Health Act 1983 instead of the Mental Capacity Act 2005 deprivation of liberty safeguards.