Reforming the Mental Health Act – the interface between the MHA and MCA

In our latest blog we are going to look at Chapter 7 of the White Paper.

Mental Health Act or Mental Capacity Act?

Professor Sir Simon Wessely’s Independent Review of the MHA (the Review) found that within the interface between these two pieces of legislation is not always clear for practitioners whether the MHA or DoLS should be used if a person lacks capacity and does not appear to be objecting. It noted that this meant decisions varied depending on how a patient presented and who was taking the decision. The Government agreed that a clearer dividing line could reduce some inappropriate uses of the MHA and clarify a grey area. It would also go some way to addressing rising rates of detention under the MHA.

Given the impending Liberty Protection Safeguards (LPS) the Government intend to assess the impact of its implementation before introducing reforms to the MHA / MCA interface.

However their consultation question now is – How should the legal framework define the dividing line between the MHA and MCA so that patients may be made subject to the powers which most appropriately meet their circumstances?

Prior consent?

The Review recommended that the Government should consult on whether the MHA should give individuals the right to consent in advance to admission to hospital for treatment for a mental illness. This would mean that if an individual had given prior consent but later became unwell and lost the relevant capacity, then they would be admitted as an informal patient as opposed to being detained under the MHA or DoLS / LPS.

However the Review also identified concerns relating to this proposal such as:

  • patients not having access to safeguards that would be available if they were detained under the MHA or subject to DoLS / LPS;
  • an individual consenting in advance not being fully aware of conditions, setting, care and treatment; and
  • an individual not feeling able to object once admitted informally.

So the Government wants to hear your views on this.

Accident & Emergency

The Government want to ensure that health professionals are able to temporarily hold individuals in A&E when they are in crisis and need a mental health assessment but are trying to leave. 

They appreciate that this will partly be addressed when changes to section 4B MCA come into force in 2022. These would enable a health professional to take steps to deprive a person of their liberty, if necessary to provide life sustaining treatment / prevent a serious deterioration in their condition. However section 4B would cease to apply if a referral was made for a MHA assessment and it can only be used if the patient lacks capacity, is over 16 and, in non-urgent cases, an LPS referral has been made…

The Government therefore think that section 5 MHA could be extended. At present it cannot be applied unless the person is already admitted as an inpatient. They know this was ruled out by the Review because it was considered overtly restrictive.

So lots to think about as we hurtle towards 21 April when the consultation on the White Paper closes.

You can read our series of blogs on the MHA reforms below:

Our content explained

Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.

Posted by


Mills & Reeve Sites navigation
A tabbed collection of Mills & Reeve sites.
My Mills & Reeve navigation
Subscribe to, or manage your My Mills & Reeve account.
My M&R


Register for My M&R to stay up-to-date with legal news and events, create brochures and bookmark pages.

Existing clients

Log in to your client extranet for free matter information, know-how and documents.


Mills & Reeve system for employees.