THE CONCEPT OF ‘BEST INTERESTS’ IN THE TREATMENT OF MENTALLY DISORDERED PATIENTS IN THE UNITED KINGDOM: A LEGAL ANATOMY

Abstract

Mental disorder is simply any disorder or disability of the mind. The concept of best interests requires that a decision maker should make decisions which will be in the overall best interests of the incapacitated person. Until the coming into existence of the Mental Capacity Act (MCA), there was no statutory framework for making decisions for persons who lack capacity especially the mentally disordered persons. However, the concept of best interests has no place in the MHA as patients may be detained, assessed and treated without consent and certification. This research considered the concept of best interests in the treatment of mentally disordered patients in the United Kingdom by reviewing the Mental Health Act and the Mental Capacity Act as well as the provisions of the European Convention on Human Rights. The writer found as its key recommendations that Section 131 of the Mental Health Act be amended to incorporate the best interests reasoning and that both the Mental Health Act and the Mental Capacity Act (MCA) should be amended to contain an appraisal of the eminence of the European Convention on Human Rights especially Articles 5 and 8 of the Convention.