CASC Knowledge Essentials17 · Mental health law and capacity
17 · Mental health law and capacity
10 min read
Written by Resident Doctor Committee · Published
Jurisdiction: England and Wales. Checked 7 October 2026. Their Codes and administration differ; CQC guidance applies to England. Scotland and Northern Ireland use different legislation.
17.1 The 2025 Act and what is actually in force
Royal Assent is not commencement. The 2025 Act changes the 1983 Act in stages. The operative framework here still uses section 2: 28 days; initial section 3: six months; medication safeguard: three months. Prospective changes to detention periods, nominated persons and certification should not be applied before commencement.
Some changes are in force: conditional discharge with deprivation-of-liberty conditions for specified restricted patients from February 2026; specified private-provider human-rights duties and a review duty concerning under-18 inpatient notifications from April.
Separately, the June 2026 Supreme Court judgment changed the deprivation-of-liberty test. See 17.9; this is not the introduction of Liberty Protection Safeguards.
17.2 Civil detention powers
Power | Purpose and authorisation | Ordinary maximum |
|---|---|---|
2 | Assessment ± treatment; AMHP/nearest-relative application, two medical recommendations | 28 days, ordinarily not renewable |
3 | Hospital treatment; AMHP/nearest-relative application, two recommendations | Six months, then six months, then yearly |
4 | Urgent assessment where a second recommendation would cause undesirable delay; one recommendation | 72 hours; second recommendation can convert to section 2 |
5(2) | Hold an existing inpatient pending an admission application; doctor/approved clinician in charge or nominated deputy | 72 hours |
5(4) | Prescribed nurse holds an inpatient receiving mental-disorder treatment when immediate clinical attendance is impracticable | Six hours, ending earlier when the authorised clinician arrives |
135(1) | Magistrate's warrant for police entry/removal or assessment in specified circumstances | Place-of-safety detention generally 24 hours, limited extension |
136 | Police removal to/keeping at a place of safety outside private living accommodation, if criteria met | Generally 24 hours, limited extension |
AMHP: approved mental health professional. RC: responsible clinician. Neither role is necessarily a doctor. The usual two-doctor application needs at least one section 12-approved doctor. Doctors recommend; the applicant applies.
Detention needs criteria, not just a diagnosis
Section 2: mental disorder of a nature/degree warranting hospital assessment, with detention needed for health, safety or protection of others. Section 3: hospital treatment must be appropriate, necessary for health/safety or protection of others, and unavailable without detention, with appropriate medical treatment actually available. Incapacity is not a prerequisite.
Alcohol/drug dependence alone is excluded; an associated mental disorder may qualify. Under the current section 3 framework, learning disability alone also requires association with abnormally aggressive or seriously irresponsible conduct. Autism does not have that same present exclusion. Prospective reforms affect this area.
Holding and police powers: limits to remember
5(2)/5(4) are inpatient powers, not general A&E/outpatient powers. If 5(2) follows 5(4), its 72 hours run from the start of the nurse's hold. End the hold when no longer required.
The extra 12 hours under place-of-safety powers depends on the person's condition preventing assessment within 24 hours, not staffing shortages. Police stations cannot be used for under-18s and are tightly restricted for adults. Police powers do not themselves authorise medication without consent.
17.3 Rights, nearest relatives and discharge
Nearest relative ≠ next of kin. It is a statutory role determined by family hierarchy and relevant living/caring arrangements. They can object to an AMHP's section 3 application; unresolved objection may need county-court displacement. There is no equivalent veto over section 2.
Ordinary civil discharge routes include the RC, hospital managers, tribunal and the nearest relative's defined powers. After the relative's 72 hours' written notice, the RC may bar discharge if the statutory dangerousness test is met. Barring discharge and displacing the relative are different processes.
Tribunal applications: section 2 ordinarily within 14 days; section 3 during the initial six months, with further opportunities on renewal. The tribunal is independent. IMHA support, legal advice and managers' reviews are separate safeguards.
17.4 Medication and the three-month rule
Part 4 generally concerns treatment for mental disorder under relevant detention powers. It generally excludes sections 4, 5, 35, 135 and 136. Holding someone therefore does not itself authorise medication.
Unrelated physical treatment needs its own consent/capacity basis. Treatment closely connected with mental disorder, such as feeding for anorexia, can fall within MHA powers.
The medication clock starts with first administration during the relevant period of liability to detention. Changing drug or moving from section 2 to 3 does not restart it.
After three months, section 58 certification is required. In England:
Certificate | Basis |
|---|---|
T2 | Capacity and consent |
T3 | Independent SOAD assessment when consent is absent or capacity lacking |
SOAD means second-opinion appointed doctor, not simply another team doctor. The certificate must cover the proposed treatment. Withdrawn consent cannot be treated as continuing consent.
17.5 ECT and exceptional treatment safeguards
ECT has no three-month grace period. Under section 58A:
A capacitous adult's refusal ordinarily prevents ECT.
A relevant detained patient lacking capacity needs SOAD certification, without conflict with a valid applicable advance refusal or authorised attorney/deputy/Court of Protection decision.
An under-18 needs SOAD involvement even if consenting; an informal young person also needs the appropriate underlying legal authority.
Section 62: tightly defined urgent exceptions. For ECT, immediate necessity to save life or prevent serious deterioration, with statutory qualifications. This is not routine permission to bypass refusal for a planned course.
Section 57: specified exceptional treatments, including neurosurgery for mental disorder. Consent and independent safeguards are required, including for informal patients. A SOAD cannot simply approve psychosurgery for someone unable to consent.
17.6 Leave, CTOs, guardianship and aftercare
Section 17 leave: RC-authorised leave while the patient remains liable to detention. Restricted patients also need relevant Ministry of Justice agreement. Leave is not discharge.
CTO: follows eligible treatment detention, not section 2. The RC makes it with AMHP agreement. Recall lasts up to 72 hours; revocation with the required agreement restores inpatient detention. Missing a dose does not automatically meet recall grounds. Failure to attend a mandatory examination has a separate recall basis.
A capacitous adult on a CTO cannot ordinarily be forcibly medicated in the community. Part 4A has separate provisions for incapacity and emergencies; neither “always force” nor “never treat without consent” is correct.
Guardianship, age 16+: residence, attendance and professional access. It does not itself authorise forced treatment or deprivation of liberty.
Section 117: aftercare following relevant detention under 3, 37, 45A, 47 or 48, not section 2 alone. It meets mental-disorder-related needs and reduces deterioration/readmission, jointly arranged by health and social care. Qualifying aftercare is not chargeable as ordinary means-tested care; not every service automatically qualifies.
17.7 Capacity under the Mental Capacity Act
This decision, at this time. Diagnosis, IQ or a cognitive score cannot decide capacity globally. Choosing a meal and managing complex finances require different information and abilities.
The five principles:
Presume capacity.
Take all practicable steps to support decision-making.
An unwise decision is not incapacity.
Act in best interests when capacity is lacking.
Consider a less restrictive way to achieve the purpose.
The abilities are understand, retain, use or weigh, and communicate by any means. An inability must result from an impairment/disturbance of mind or brain. Include foreseeable consequences of choosing, refusing or not deciding. Short retention may suffice; perfect recall is unnecessary.
Best interests are the person's interests
Include wishes, feelings, values and beliefs; involve the person, consult appropriate others and consider whether capacity may return. It is not a family vote or simply the clinician's preferred option.
MCA restraint must be necessary to prevent harm to the person lacking capacity, and be proportionate to the likelihood and seriousness of that harm. Risk to others alone is not this test.
17.8 Attorneys, advance refusals and advocacy
Concept | Essential distinction |
|---|---|
Health/welfare LPA | Registered attorney acts within scope when donor lacks capacity; life-sustaining-treatment authority must be explicit |
Property/financial LPA | Money/property; different scope and activation rules |
Deputy | Authority comes from the court order, not an unrestricted role |
Advance decision to refuse treatment | Prior adult refusal of specified treatment; binding when valid/applicable and capacity is now lacking |
Advance statement | Preferences/values to consider, not the same as binding refusal |
IMCA | Independent advocate for qualifying MCA decisions, not the decision-maker |
Life-sustaining-treatment refusal: written, signed, witnessed and expressly applicable even if life is at risk. An advance decision cannot demand inappropriate treatment. Later decisions/a relevant later LPA may affect validity; a current capacitous choice takes priority. MHA powers can override some refusals, but ECT has specific protections.
IMCA: specified serious medical-treatment/accommodation decisions, absent capacity and no suitable unpaid person to consult, subject to exceptions. Relevant accommodation thresholds are planned hospital stays over 28 days, care-home stays over eight weeks. IMHA instead supports eligible MHA patients.
17.9 Deprivation of liberty after June 2026
The old Cheshire West shorthand (continuous supervision/control + not free to leave) is no longer sufficient as a stand-alone test. The June 2026 judgment requires the person's concrete circumstances and the type, duration, effect and manner of restrictions; no single factor settles it.
Lack of MCA capacity does not automatically exclude valid subjective consent for Article 5 purposes. Basic understanding, awareness of surroundings and meaningful acceptance may matter; serious doubt prevents a finding of valid consent. This does not turn passive compliance into medical-treatment consent. The treatment-capacity test remains separate.
DoLS point | Number/scope |
|---|---|
Age and setting | Eligible adults 18+, hospitals/care homes |
Standard authorisation | Up to 12 months |
Urgent authorisation | Normally seven days, possible further seven-day extension |
Other settings; ages 16–17 | Generally the appropriate court route |
Representation and a right to challenge remain important. DoLS authorises deprivation of liberty, not treatment. MHA eligibility/objection to mental-disorder treatment affect which route is available. LPS has not replaced DoLS. Apply current legal advice to borderline cases after the judgment.
17.10 Children and young people
Gillick competence: under-16 maturity/understanding for a particular decision. Fraser: the specific contraceptive-advice framework. At 16–17, the MCA generally applies; LPAs and statutory advance decisions require adulthood.
A parent cannot simply override a capacitous 16–17-year-old's refusal of informal psychiatric admission. Parental consent alone cannot authorise deprivation of liberty for an incapable 16–17-year-old. Disputed life-saving treatment may need court involvement; MHA powers may apply if criteria are met.
MHA: no general lower age limit, but guardianship starts at 16; care must be age-appropriate and ECT has extra safeguards.
Children Act: section 20 accommodation does not transfer parental responsibility; a 31 care order gives the local authority parental responsibility alongside existing holders; 47 concerns enquiries into suspected significant harm.
17.11 Forensic hospital powers
Section | Recall point |
|---|---|
35 | Remand for a report: initially up to 28 days, maximum total 12 weeks; no Part 4 treatment power |
36 | Crown Court remand for treatment: initially up to 28 days, maximum total 12 weeks; Part 4 applies |
37 | Court hospital order for treatment |
38 | Interim hospital order: initially up to 12 weeks, extendable to maximum 12 months |
41 | Crown Court restriction added to section 37 for public protection; no fixed expiry |
45A | Hospital direction alongside a prison sentence: hybrid order |
47 | Sentenced prisoner transferred to hospital |
48 | Transfer of specified other detainees, including remand prisoners |
49 | Restrictions attached to relevant hospital transfers |
Restricted patients need Ministry of Justice involvement in leave, transfer and discharge. Conditional discharge ≠ CTO. Commenced 2025 reforms permit deprivation-of-liberty conditions for specified restricted patients meeting serious-harm criteria, not ordinary community patients generally.
Fitness to plead: participate in proceedings now. Insanity: legal defence concerning the act. Diminished responsibility: partial defence to murder. Diagnosis alone establishes none of them.
17.12 Driving and confidentiality
Acute psychosis, mania/hypomania: stop driving and notify DVLA. Relicensing depends on stability, adherence, driving-relevant insight and medication effects. Group 2 bus/lorry standards are stricter than Group 1 car/motorcycle standards. Dementia requires notification and individual assessment.
Acute ECT course: no driving. Afterwards the underlying illness must meet the licensing standard; anaesthetic recovery alone is insufficient.
The driver usually notifies. If unable to understand the advice, the clinician should notify. If driving continues against advice and risks death/serious harm to others, disclose relevant information to the medical adviser after reasonable attempts to persuade the person to stop. Try to inform them before disclosure; explain afterwards in writing. DVA is the Northern Ireland authority.