When admitting patients to hospital and treating them, psychiatrists and other health professionals may need to deprive them of their liberty. Where this occurs, professionals will need to work within a statutory framework to practice legally and protect their patients’ right to liberty under Article 5 of the European Convention on Human Rights. Within England and Wales, some clinical scenarios will require a choice to be made between the Mental Health Act 1983 (MHA) and the Mental Capacity Act 2005 (MCA) and its Deprivation of Liberty Safeguards (DoLS). This choice can be complex, is often overlooked and frequently misunderstood in clinical practice. Deciding between the two frameworks must be done on a case-specific basis. With the use of code of practice guidelines, case law and an unfolding clinical scenario we aim in this article to support clinicians in taking a clear-sighted approach to the dilemma and the factors to consider when deciding between the two regimes.

Many authors have considered the ethical dilemmas of a doctor being both the treating physician and expert witness in litigation. The debate has often focused on the potential for bias and the adverse impact being an expert witness can have on the therapeutic alliance. Much of this debate seems rooted in the ethic of non-maleficence. In this article we attempt to examine the other end of this ethical quandary. Using a pragmatic approach, we explore these conflicts and consider biases from other sources. Ultimately, taking on the mantle of both roles is becoming increasingly unavoidable. Hence we argue that, although there are challenges, embracing this dual role can be an important part of holistic treatment, risk management and the pursuit of the ethical principle of justice.

This commentary reflects on two articles on consent in those under 18 years of age, known in law as ‘minors’. I consider why the language and landscape of the law in relation to consent in this age group can be alienating to psychiatrists, interrogate the legal complexities regarding consent in children and adolescents, refer to key aspects of relevant case law and end with practical suggestions that might improve clinical practice with cases that have the potential for legal complexity.

The interface between the Mental Health Act 1983 (MHA) and the Mental Capacity Act 2005 (MCA) can throw up complex issues. This article reviews a Court of Protection case that considered this interface specifically in the context of physical healthcare for a patient detained under the MHA. The court analysis also included consideration of the European Convention on Human Rights, the Mental Health Units (Use of Force) Act 2018 and the concept of residual liberty. The judgment describes principles to be applied when considering whether non-consensual physical health treatment for detained patients could result in a further deprivation of liberty. Discussion of other Court of Protection cases considers the issue of communication during a capacity assessment, the MHA/MCA interface in obstetric cases and what test to apply in determining whether a patient could be detained under the MHA. Such principles and guidance are helpful in clinical practice for healthcare professionals who deal with the MHA/MCA interface.

Liaison psychiatrists have identified that conducting capacity assessments in general hospital patients with alcohol-related brain damage (ARBD) can be challenging. This educational article uses the fictitious case of a man with ARBD, alcohol dependence and significant self-neglect, focusing on assessment of his capacity to decide about moving into a care home on discharge. We provide an overview of clinical, legal and ethical literature relevant to decision-making and capacity assessment in individuals with ARBD, with the aim of guiding clinicians approaching complex capacity assessments.

The past decade has seen a significant growth in attention to the human rights of persons with disabilities, taken to include mental health conditions. Consequently, challenges to important areas of current psychiatric practice have emerged, with which the profession has, in general, shown limited engagement.

The recent Draft Mental Health Bill for England and Wales proposes changes to the Mental Health Act 1983 which will include, for the first time, a legal definition of autism. This article explores the specific potential issue that the definition, owing to its breadth, potentially encompasses a number of conditions other than autism, consequently leaving the definitionally dependent concept of ‘psychiatric disorder’ significantly narrowed in scope. The potential implications of this – primarily the concern that a range of other conditions and presentations could be unintentionally excluded from the scope of the civil powers in the Mental Health Act – are discussed.

This is the first of two articles reviewing consent in those under the age of 18 (also referred to as ‘minors’ in UK law). This can be a complex issue in clinical practice because the law endows competent/capacitated minors with the absolute right to accept treatment, but a limited right to refuse. This first article summarises recent cases of refusal of treatment in minors. It uses them to ask two central questions: how do we, as clinicians, think about autonomous self-determination in minors and to what extent does the rights agenda support minors’ autonomous self-determination? Autonomy as one of the principles of biomedical ethics is explored. How the minors’ rights agenda supports the development of autonomy is considered. The amount of weight given in the domestic courts to the rights of minors with reference to the Human Rights Act 1998 and the United Nations Convention on the Rights of the Child is described. These considerations demonstrate the way that the courts are giving the views of the minor greater weight in decision-making in keeping with age and maturity. This article introduces the second article, which comprehensively reviews decision-making in minors, explores competence and capacity in minors and examines the differential treatment of acceptance and refusal.

This is the second of a pair of articles reviewing the topic of consent in minors. Both articles have a particular emphasis, drawing on theory and case law, on the differential treatment of acceptance and refusal in minors. This article considers the concept of capacity in young people (aged 16 and over) and competence in children (under the age of 16) by reviewing underpinning statute and case law with particular reference to England and Wales. This provides a platform for consideration of the reach of capacity in minors with regard to acceptance and refusal of treatment. In doing so the article explores the key, but still elusive, ingredient of maturity, which has significance to the process. Fictitious vignettes allow consideration of the application of the concepts of maturity and autonomy in clinical practice. The article also considers the potential for the UK's Parliament to make changes to current statute regarding consent in minors.

Domestic abuse often begins or escalates during the perinatal period, increasing the risk of adverse pregnancy outcomes and death of the woman and infant. The hidden nature of domestic abuse, compounded by barriers to disclosure, means many clinicians are likely to have unknowingly encountered a patient who is being abused and missed a vital opportunity for intervention. This educational article presents the experience of a woman who was abused during pregnancy. It describes how to facilitate a disclosure and conduct an assessment and illustrates safeguarding duties alongside interventions.

Significant problems exist in understanding and implementing the Mental Capacity Act 2005 (MCA) despite it having been in place in England and Wales for more than 15 years. Although many guidelines exist on the assessment of capacity, it is difficult to apply such guidance in practice, given the complexity of actual situations. We may know the stages of the test for capacity, but do we really understand what they mean and how to assess them? In this, the first of two articles examining the MCA and challenges in its application, we add to existing legal guidance to explore capacity assessment in detail using a clinical scenario, and use case law and case studies to illustrate the subtleties and difficulties that may arise.

This article is the second of two looking at assessment of mental capacity in clinical practice. In it, we explore capacity assessments in the context of suicidal thoughts and acts. The laws governing doctors’ responsibility to suicidal patients in England and Wales are poorly understood, with tensions at the interface between the Mental Health Act 1983 (MHA) and the Mental Capacity Act 2005 (MCA). Dynamics of the clinical encounter (including the countertransference) further exacerbate uncertainty about how clinicians should balance patients’ autonomy with protection of life. We use a case example of a patient presenting with suicidality to describe good practice, based on a balance of legal and clinical principles and up-to-date case law. We discuss the difficulty in applying the MCA in relation to patients who appear to lack a consistent and coherent sense of self and others and consider whether the MCA is fit for purpose in determining whether someone with a personality disorder diagnosis should be permitted to end their own life.

Small financial incentives have been proven effective at promoting healthy behaviours across medicine, including in psychiatry. There are a range of philosophical and practical objections to financial incentives. Drawing on the existing literature, specifically attempts to use financial incentives to promote antipsychotic adherence, we propose a ‘patient-centred’ view of evaluating financial incentive regimes. We argue that there is evidence that mental health patients like financial incentives, considering them fair and respectful. The enthusiasm of mental health patients for financial incentives lends support to their use, although it does not invalidate all objections against them.

The pressure on mental health services has not gone unremarked and is of widespread concern in England and Wales. This can have implications when a bed is being sought for a patient who has undergone a Mental Health Act assessment and is deemed to meet the criteria for being formally admitted to hospital. Once the 24 h period for assessment under section 136 of the Act has lapsed, the ongoing detention of the patient can lead to a legal grey area. Through a fictional example this paper examines the relevant case law and statute that may be used to continue the detention and explores the ethical problems that this may cause.

Clinicians should be aware of the inherent jurisdiction of the High Court in providing a ‘safety net’ to protect ‘vulnerable’ adults who are not within the scope of the Mental Capacity Act 2005 (MCA) or the Mental Health Act (MHA) 1983. Many situations in which the inherent jurisdiction has been deployed have been to safeguard vulnerable adults where there is abuse, coercion or undue influence, but the person does not lack decision-making capacity under the MCA. We explain the nature of the inherent jurisdiction, including descriptions of concepts surrounding ‘vulnerability’; as an intervention of last resort, we consider what statutory alternatives may exist, including safeguarding law under the Care Act 2014; we discuss decision-making capacity in relation to contact with others and, using real cases, the types of order that may be made under the court's inherent jurisdiction. It is important to be mindful that although there may be a legal remedy to safeguard this ‘vulnerable but capacitous’ group, there is a delicate and challenging balance between protecting those at risk and respecting their autonomy.

Criminal sanctions including court orders, prosecution and imprisonment persist as responses to suicidality in the UK even where there is no public danger. Their prevalence, the level of clinical involvement and outcomes are unclear. There is an urgent need to examine the national picture of harms, benefits and the responsibilities of mental health professionals.

There has been a series of judgments in recent years emanating from the Court of Protection in England and Wales involving sexual relations. One such judgment is unique in that it is the first time the court has assessed capacity in the sexual practice of autoerotic asphyxiation in a person with a diagnosis of autism spectrum disorder. This article reviews the judgment and specifically the key section of the Mental Capacity Act 2005, section 27, which applies to capacity decisions in the context of family relationships, including sexual relationships. The practice of autoerotic asphyxia can be a complex and emotive subject and dangerous to individuals undertaking it. The judgment provides guidance and a framework for applying the Act to assess the capacity of someone practising autoerotic asphyxia that can be used in clinical practice for people with any mental disorder.