6: Of powers and safeguards
We generally think of the Mental Health Act 1983 (MHA) as a coercive ‘compulsory power’ to detain and involuntarily treat mental health patients. In contrast, the Mental Capacity Act 2005 (MCA) is often described as ‘empowering’, and its provisions for authorising detention are viewed as ‘safeguards...
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| פורמט: | Online |
| שפה: | אנגלית |
| יצא לאור: |
Edward Elgar Publishing
2026
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| נושאים: | |
| גישה מקוונת: | https://directory.doabooks.org/handle/20.500.12854/171003 |
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אין תגיות, היה/י הראשונ/ה לתייג את הרשומה!
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| _version_ | 1869515256172118016 |
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| author | Series, Lucy |
| author_browse | Series, Lucy |
| author_facet | Series, Lucy |
| author_sort | Series, Lucy |
| collection | Directory of Open Access Books |
| description | We generally think of the Mental Health Act 1983 (MHA) as a coercive ‘compulsory power’ to detain and involuntarily treat mental health patients. In contrast, the Mental Capacity Act 2005 (MCA) is often described as ‘empowering’, and its provisions for authorising detention are viewed as ‘safeguards’ on liberty and not a ‘compulsory power’. However, a Hohfeldian analysis of their legal fundamentals shows that – at base – both statutes modify legal relations between care-givers and care-recipients in similar ways; they just achieve this through different routes. Reflecting on the interface between these statutes, and through a critical genealogy of their interconnected histories, I argue that embedded in these contrasting cultural associations is a view that people who ‘lack capacity’ are ‘non-volitional’; that is, without a real ‘will’. I suggest that the UN Convention on the Rights of Persons with Disabilities can help unpick this history, reimagining ‘incapacitated’ people as full legal persons. |
| format | Online |
| id | doab-20.500.12854ir-171003 |
| institution | Directory of Open Access Books |
| language | eng |
| publishDate | 2026 |
| publishDateRange | 2026 |
| publishDateSort | 2026 |
| publisher | Edward Elgar Publishing |
| publisherStr | Edward Elgar Publishing |
| record_format | ojs |
| spelling | doab-20.500.12854ir-1710032026-01-20T13:09:04Z 6: Of powers and safeguards Series, Lucy Mental Capacity Act 2005; Mental Health Act 1983; UN Convention on the Rights of Persons with Disabilities; Compulsory powers; Deprivation of liberty safeguards LNTM LNTM2 We generally think of the Mental Health Act 1983 (MHA) as a coercive ‘compulsory power’ to detain and involuntarily treat mental health patients. In contrast, the Mental Capacity Act 2005 (MCA) is often described as ‘empowering’, and its provisions for authorising detention are viewed as ‘safeguards’ on liberty and not a ‘compulsory power’. However, a Hohfeldian analysis of their legal fundamentals shows that – at base – both statutes modify legal relations between care-givers and care-recipients in similar ways; they just achieve this through different routes. Reflecting on the interface between these statutes, and through a critical genealogy of their interconnected histories, I argue that embedded in these contrasting cultural associations is a view that people who ‘lack capacity’ are ‘non-volitional’; that is, without a real ‘will’. I suggest that the UN Convention on the Rights of Persons with Disabilities can help unpick this history, reimagining ‘incapacitated’ people as full legal persons. Published 2026-01-20T13:09:02Z 2026-01-20T13:09:02Z 2025-11-20 chapter 9781839104992 https://directory.doabooks.org/handle/20.500.12854/171003 eng image/jpeg Attribution-NonCommercial-NoDerivatives 4.0 International https://www.e-elgar.com/shop/gbp/reimagining-health-law-9781839104985.html https://www.elgaronline.com/edcollchap-oa/book/9781839104992/chapter6.xml Edward Elgar Publishing Edward Elgar Publishing 10.4337/9781839104992.00012 10.4337/9781839104992.00012 01ceac28-75b4-492a-8eec-f9b98bc6b28c https://creativecommons.org/licenses/by-nc-nd/4.0/ 9781839104992 Edward Elgar Publishing Cheltenham, UK open access |
| spellingShingle | Mental Capacity Act 2005; Mental Health Act 1983; UN Convention on the Rights of Persons with Disabilities; Compulsory powers; Deprivation of liberty safeguards LNTM LNTM2 Series, Lucy 6: Of powers and safeguards |
| title | 6: Of powers and safeguards |
| title_full | 6: Of powers and safeguards |
| title_fullStr | 6: Of powers and safeguards |
| title_full_unstemmed | 6: Of powers and safeguards |
| title_short | 6: Of powers and safeguards |
| title_sort | 6 of powers and safeguards |
| topic | Mental Capacity Act 2005; Mental Health Act 1983; UN Convention on the Rights of Persons with Disabilities; Compulsory powers; Deprivation of liberty safeguards LNTM LNTM2 |
| topic_facet | Mental Capacity Act 2005; Mental Health Act 1983; UN Convention on the Rights of Persons with Disabilities; Compulsory powers; Deprivation of liberty safeguards LNTM LNTM2 |
| url | https://directory.doabooks.org/handle/20.500.12854/171003 |
| work_keys_str_mv | AT serieslucy 6ofpowersandsafeguards |