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’ 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.