The Use of Capacity Criteria in Mental Health Laws in the UK

For the first time in the UK, the Mental Health (Care and Treatment) (Scotland) Act 2003 introduced a capacity-based criterion for compulsory treatment or detention under the law, namely, impaired ability to make medical decisions. This followed the introduction of the Adults with Incapacity (Scotland) Act 2000. This is significantly different from England which has two separate Acts like Scotland but there is a lack of a capacity criterion in the Mental Health Act 2007. In Northern Ireland a Bill being put before the Assembly in 2011 aims to combine mental health and capacity laws as one piece of legislation, which will be the first of its kind in the world. This paper explores the concept of capacity in relation to mental illness, looks at the three approaches to legislation in the UK and draws together ideas around the pros and cons of using capacity criteria in mental health legislation.