Clarification

Nicholson et al say in their article that, except when a court of protection order—a consequence of which is the deprivation of liberty—is in place, the Mental Capacity Act cannot be used to give care involving deprivation of liberty (see code of practice for details).¹

This is not necessarily correct, and following this advice may make readers believe that they may not give life saving treatment entailing deprivation of liberty for physical illness to a person without mental capacity and without an existing court order when it is lawful and necessary to do so. Section 6.52 of the code of practice of the Mental Capacity Act 2005 explains the interpretation of “deprivation of liberty” derived from European Court of Human Rights judgments.² Section 50 paragraph (2) of part 2 chapter 2 of the Mental Health Act 2007 amends the Mental Capacity Act 2005 specifically to provide for situations where it is lawful and necessary for deprivation of liberty necessary for life sustaining treatment,³ including while a court decision is being sought.

The authors say that the current Mental Health Act (1983) is due to be replaced by a new one (2007) in 2008. The Mental Health Act 2007 will amend rather than replace the Mental Health Act 1983.