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SUMMARY When admitting patients to hospital and treating them, psychiatrists and other health professionals may need to deprive them of their liberty. Where this occurs, professionals will need to work within a statutory framework to practice legally and protect their patients’ right to liberty under Article 5 of the European Convention on Human Rights. Within England and Wales, some clinical scenarios will require a choice to be made between the Mental Health Act 1983 (MHA) and the Mental Capacity Act 2005 (MCA) and its Deprivation of Liberty Safeguards (DoLS). This choice can be complex, is often overlooked and frequently misunderstood in clinical practice. Deciding between the two frameworks must be done on a case-specific basis. With the use of code of practice guidelines, case law and an unfolding clinical scenario we aim in this article to support clinicians in taking a clear-sighted approach to the dilemma and the factors to consider when deciding between the two regimes.
Cave et al. (2024) studied this question.