Memorandum submitted by Alan Capps (MH 67)
1. My evidence submitted 16 & 22 April 2007, highlighted the lack of compulsion to admit a person to hospital or care home in the MCA.
2. In the MCA, the absence of any formal power for admission (cf. section 2 & 3 of the MHA), fails to provide the necessary safeguards for the following reasons
a. The draft code of practice states that the MHA is only applicable where objection to admission is raised.
b. It cannot be assumed that a person lacking capacity would be capable of raising an objection.
c. It cannot be assumed that if such person had capacity and were going to be deprived of their liberty, they would agree and consent to informal admission, rather than object to it.
3. In summary the lack of formal procedure for admission in the MCA, suggests that the MHA should be applied where a person who lacks capacity must be admitted to hospital and deprived of their liberty (for treatment of a mental disorder in the interest of their own or others health and safety).
4. Quite simply the informal treatment of those lacking capacity fails to afford the necessary safeguards and compensation for any deprivation of liberty.