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37 The medicolegal challenges in neuropsychiatry: an evaluation of mental capacity and legal frameworks
  1. Julie Moonga
  1. Kings College, London


Assessments of mental capacity pose various legal challenging in neuropsychiatry. Currently, over two million individuals lack capacity to make decision for themselves in the UK. Those are vulnerable individuals, often subjected to deprivation of their liberty. The UN Declaration of Human Right (UNDHR) outlines the fundamental rights and freedom of all individuals. Furthermore, Article 5 of the European Convention on Human Rights (ECHR) prohibits arbitrary deprivation of liberty. The Mental Capacity Act (MCA) 2005, was introduced as a legal instrument for decision making on behalf of those lacking capacity. Subsequently, the Deprivation of Liberty Safeguards (DoLS), amended the MCA 2007, to protect liberty vulnerable individuals following the ‘Bournewood’ judgement. However, reports indicate a higher number of people are detained in hospital under the Mental Health Act (MHA). The interface between the two legislations (MHA and MCA) often causes confusions in their applications and arrangements within clinical practice. Since its implementation into the MCA in 2009, DoLS received many criticisms for being too narrow-focused, nor fit- for-purpose, and raise human rights concerns. Recent proposal from the Law Commission led the UK government to approve the Liberty Safeguards Protection (LPS) framework to replace DoLS. However, it remains unclear whether the new framework would efficiently address the medicolegal issues. This systematic review provides an in-depth evaluation of mental capacity, decision-making and the challenges implicating the legal framework and safeguarding challenges and their complex interplay in neuropsychiatry.


  • To evaluate the MCA legal frameworks, DoLS and the new LPS as safeguarding instruments.

  • To assess their application and effectiveness in protecting individuals lacking capacity to make decision for themselves.

  • To outline the complexity and medicolegal implications.

Methods The PRISMA framework is used for this systematic review. This research presents an in-depth analysis of the necessary steps in the decision-making process and application of the MCA.

Result The MCA provides empowering mechanisms for decision-making in the best interests of individuals lacking capacity. However, the safeguarding process remains problematic. Both DoLS and LPS offer principles with justifiable steps. The narrow focus of DoLS intensified criticisms for its incompatibility. LPS as a simpler and easier guidance is designed for a better fit into the empowering framework of the MCA. The best interests approach is valuable exercise for the decision-maker.

Conclusion The MCA is an important legal instrumental in neuropsychiatry. However, many challenges remain in the steps toward decision-making. Applications of legal frameworks are not necessarily always about the restriction of rights but rather a best interest’s mechanism to protect those lacking capacity to decide for themselves.

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