Mental capacity assessments in secure care: An unnecessary complication?

Abstract

This is a review of the key criteria and implications of the Mental Capacity Act 2005 for patients in forensic care detained under the Mental Health Act 1983. Both Acts were amended by the Mental Health Act 2007 and its subsequent Code of Practice; the impact of these changes will be explored here. Through review of the Code of Practice and hypothetical clinical scenarios, I argue that capacity judgements in mental disorder are inherently complex, unreliable and inextricably linked to risk assessment, and that an overemphasis on capacity when making decisions about patient management in secure care can paradoxically obscure the more central issue of risk and proportionality. The key clinical implication is a call for secure services to be balanced in how they adopt best practice principles from the new Mental Capacity Act so that the spirit of the Act, such as valuing patient autonomy, is preserved and that the debate about what practices in secure care are truly proportionate and justified remains at the forefront of clinical thinking.