Adults, mental illness and incapacity: convergence and overlap in legal regulation

Abstract

While not entirely congruent, there will be substantial overlap between the classes of individuals governed by the proposed Mental Incapacity and Mental Health Acts, and by the court's inherent jurisdiction. This paper argues that the mental health proposals are procedurally strong but substantively weak, while the incapacity reforms are, largely, the reverse. For individuals who may be subject to either legal régime, therefore, the safeguards of one statute may be avoided by resort to the other. Lying across both reforms is the court's inherent jurisdiction. It remains to be seen whether or how the scope of this jurisdiction will be developed in the event that the legislative reforms are passed.

Keywords:

• mental health
• mental incapacity
• inherent jurisdiction of court