ABSTRACT
This chapter describes that the test of incapacity to consent should be applied to both a person's detention and their involuntary treatment. Under the adult guardianship schemes of Australasia and Britain, incapacity to make decisions of the relevant kind is the central test for intervention. The mental health legislation will usually interact in a number of complex ways with the criminal justice system. The chapter also describes that assessing the capacity of people with mental disorders presents special difficulties and the application of incapacity principles may be specially problematic in the context of forensic care. Adult guardianship schemes show proper respect for personal autonomy, but they do not address the detention or treatment of objecting patients, nor do they address necessary interactions with the criminal justice system. Mental health legislation, on the other hand, places less emphasis on patient autonomy, but it clearly regulates emergency intervention, detention and involuntary treatment, and it establishes necessary connections with forensic care.
