Capacity and Consent in the Civil and Criminal Contexts

Research output: Chapter in Book/Report/Conference proceedingChapter


This chapter presents a critical overview of mental capacity in the law of England and Wales, focusing on criminal law, mental health law and mental capacity law and the right to refuse medical treatment. It demonstrates the very different underlying philosophies of the Mental Health Act (MHA) 1983 and Mental Capacity Act (MCA) 2005 and demonstrates that concepts of capacity in the criminal law are out of keeping with current understandings of mental disorder and with the MCA 2005. This is followed by an examination of the special powers to detain and treat mentally disordered offenders under the MHA 1983. Finally, proposals to modernise the criminal law and mental health law are evaluated. It is argued that these reform proposals would go some way towards resolving the problems identified but they do not fully address the challenges of the UN Convention on the Rights of Persons with Disabilities.
Original languageEnglish
Title of host publicationCambridge Handbook of Forensic Psychology
PublisherCambridge University Press
Publication statusPublished - Dec 2021


  • mental health law
  • human rights
  • criminal law
  • mental capacity law

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