The proportionality principle and what it means in practice

Abstract

The Mental Health Act 2007 and the Mental Capacity Act 2005 have been made compatible with the European Convention on Human Rights (as enacted in the UK by the Human Rights Act 1998). The respective Codes of Practice have now embedded within them a human rights-based approach. Central to this is the principle of proportionality, which is regarded as the dominant theme underlying the Convention. This article explores the legal basis of proportionality, specifically analysing its use in relation to the Mental Health Act and the Mental Capacity Act. In doing so, it considers the use of the principle of proportionality in clinical practice.