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Restricting freedom of people with limited awareness of maintaining their well-being: a legal quagmire
  1. Derick Wade
  1. Correspondence to Professor Derick Wade, Oxford Centre for Enablement, Windmill Road, Oxford OX3 7HE, UK; derick.wade{at}ouh.nhs.uk

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The legal framework authorising restrictions on people who lack mental capacity and whose behaviours threaten their own safety or well-being is confused and confusing, but adherence to principles of good clinical care, acting in the legally defined best interests of a patient, is ethically sound and should take precedence over legal arguments.

Introduction

In the UK, the legal framework authorising actions to manage ill people who cannot or will not consent lacks a logically consistent way of analysing the nature and cause of behaviour. Consequently, we have both moral and legal arguments about how society should respond when people who are ill threaten the well-being of themselves and/or others. Ashby et al1 illustrate the difficulties that arise when needing to restrain people whose behaviour poses a danger to themselves. It is unclear exactly which legal framework should be used: the Mental Capacity Act 2005 or the Mental Health Acts 1983 and 2007.

The source of the difficulty

The fundamental questions about anyone's ‘abnormal’ behaviour are as follows:

  1. Is the behaviour consciously and deliberately controlled? Or

  2. Does the person have a disorder of

    1. awareness that distorts their ability to understand their situation? and/or

    2. beliefs that distorts their ability to reason?

In the absence of any distortion of awareness (eg, of perception, memory) or reasoning, people are considered responsible for their behaviours; they are either not restricted by society or subject to the criminal justice system.

However, if it is judged that they have distorted or awareness and/or reasoning, the person is deemed not (fully) responsible for any endangering behaviours. Then, in the UK, the Mental Capacity Act 2005 and the Mental Health Acts 1983 and …

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