Let me ask you an unpalatable but pertinent question. Would you rather be sectioned under the Mental Health Act in a secure hospital, or detained at a rural care home? And while I’m asking, which option would you want for your elderly parents? Unless I'm mistaken, you’d probably go for the care home. It just sounds nicer, softer. It conjures up images of a gentle decline into senility and death, whereas sectioning raises the spectre of straitjackets, ECT and Jack Nicholson in One Flew Over the Cuckoo’s Nest.

Now I don’t want to scaremonger, but you may be surprised to learn that if you or your parents suffer dementia and lose what the law calls “mental capacity”, your rights and protections when detained in the nursing home are far weaker than if you were sectioned.

Once sectioned under the Mental Health Act, a raft of important rights kick in automatically. You are entitled to a hearing in front of the hospital managers, which could result in you being discharged. You have the right to have a second set of doctors review your treatment. And you can go to the highly experienced mental health review tribunal, which could order your release. If you are detained in a care home because you lack “capacity”, you get none of these.

The contrasting treatment of those who are sectioned because they are suffering from a defined mental illness and those who are detained because they lack capacity was brought to light in an extraordinary legal case. In 1994 a devoted middle-aged couple answered an advertisement to become the full-time carers of a 44-year-old man who could not speak or care for himself. He can only be referred to as H. Extraordinarily, the couple were not told at the time that H was autistic or that he had severe behavioural problems.

Who cares?

When Liz Penny’s father fell and her mother developed dementia, it was the start of a nightmare

• Scandal of a care system that no one understands

H had lived in institutions for most of his adult life, but soon settled into a loving family life with his carers. Then one fateful day in 1997, on a visit to a day centre, a combination of a new driver, a different route and a fellow passenger becoming unruly caused H to become agitated. He was taken to Bournewood Hospital in Surrey. The hospital judged that he lacked capacity to make a decision on his detention and treatment, so kept him there.

For three months his carers were not allowed to see him. When they did, they were horrified. They told me that they found H in a room stained with his own blood. He had been banging his head against doors and walls in despair. He was a thin, crumpled, distressed figure. His carers left with blood literally on their hands and began a legal battle to have H returned to them. Some seven years later the European Court of Justice ruled that H had been detained unlawfully and the Government vowed to tackle the failure of the law to protect vulnerable people who lack capacity and are detained. That failure became known as the Bournewood Gap. The way the Government tried to close it was through the controversial Mental Capacity Act (MCA). It was passed in 2005, though parts of it are yet to come into force.

Many mental health lawyers and organisations believe that the MCA provides a dramatically watered-down set of rights and protections to a vulnerable, compliant and largely invisible group. People who lack capacity include those with learning difficulties, autism, head injuries and of course dementia, a fate that could befall any one of us. There are thousands of such people being detained in care homes up and down the country.

Under the MCA such people are assessed by their local authority, which then makes a decision on capacity and detention. The detainee has the right to challenge that decision in the Court of Protection. But how in practice can they do that? Most of the people detained don’t have carers to fight their case, and the legal aid that is always given to those sectioned and appealing to a mental health review tribunal isn’t automatically available to those detained under the MCA.

And campaigners point out another difference between the rights and protections under the two Acts. Anyone sectioned under the Mental Health Act is entitled to free care. But if you are detained under the MCA, your care will be means-tested. In other words, you could be detained because you lack the capacity to oppose your detention and treatment, and then have to pay for it. That could mean the forced sale of your house. As one lawyer put it recently: “Jeffrey Archer didn’t have to pay for his detention when he was banged up. But these elderly, vulnerable people with dementia will be paying for their own detention.”

Campaigners say that since the Bournewood case, the Government has missed a golden opportunity to provide those who lack capacity with the same powerful rights and protections that are given to the mentally ill. Can it really be the case that in 2007 a vulnerable person is better off sectioned in a secure hospital than detained at that rural care home?

Times Recommends

• In the real world, the public sector must pay
• Playing politics in a land of double Dutch
• Be like the plinth people: not set in stone