Managing the interface between two Acts relevant to the deprivation of liberty

Disputes over whether a deprivation of liberty arising from the care and treatment of a person with a mental disorder should be authorised under the provisions of the Mental Health Act 1983 or the Mental Capacity Act 2005 have become increasing common. This has been highlighted as an area of concern in the Department of Health and Social Care's (DHSC) response to the Independent Review of the Mental Health Act (DHSC, 2021).

A lack of clarity and consistency in the application, in practice, of the interface between the Mental Health Act 1983 and the Mental Capacity Act 2005 are the main reasons for the increasing number of disputes (Gilburt, 2021).

More clarity on the operation of the interface has been provided by the judgment in Manchester University Hospitals NHS Foundation Trust v JS [2023], which should result in more consistency in the use of the legislative frameworks and reduce disputes between health staff.