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The MCA & The MHA The main features

GP Registrars 12 December 2012

Chris Brace

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Different Purposes

• The Mental Health Act 1983 and the Mental Capacity Act 2005 are different legal instruments with different powers and safeguards

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Aims• The Mental Capacity Act 2005 exists to empower and

protect incapacitous adults. This Act provides a coherent framework for decision making for incapable adults that did not exist in the common law.

• The Mental Health Act 1983 provides a legal framework for the treatment of patients with mental disorder, without which there would be a risk of harm to the patient’s health or safety or a risk of harm to others.

• “Mental disorder” is a threshold in both

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MHA

• If the criteria are met the Mental Health Act can be applied to a person with capacity without that persons consent or

• may be applied to a non compliant or dissenting patient who lacks capacity and for whom detention is necessary.

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Application of the MHA 1983The Mental Health Act should be applied where a

patient…S.2(2)(a) is suffering from mental disorder of a

nature or degree that warrants detention in hospital for assessment (followed by medical treatment)…

(b) …ought to be detained in the interests of his own health or safety or for the protection of others

(s1(2) “mental disorder” means any disorder or disability of the mind

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Application of the MCA 2005

• The Act and 2007 amendments only applies to adults (over 16yrs MCA over 18 DoLS) who lack capacity.

• “Best interests decisions” are only made in the absence of capacitous consent or refusal.

• Mental capacity is specific to the decision that has to be made

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MCA continued

• S.2 A person lacks capacity in relation to a matter if…*unable to make a decision…because of an impairment of or disturbance in the functioning of the mind or brain.

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S.3 *unable to-

-Understand informationrelevant to the decision-retain that information-use the information in the decision making

process-communicate the decision

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Physical Treatment Under the MHA

The Act includes treatment of physical health problems only to the extent that such treatment is part of, or ancillary to, treatment for mental disorder (eg – treating wounds self-inflicted as a result of mental disorder).

Otherwise, the Act does not regulate medical treatment for physical health problems.

MHA Code, paragraph 23.4

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Physical Treatment Under the MCA

• If the patient lacks the capacity to consent to the particular treatment proposed:-

• - Check records for Welfare LPA• - Is there an ADRT• If there is no authority to refuse the

treatment a best interests decision is made by the person proposing the treatment.

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Best Interests

The Mental Capacity Act (s4) clarifies best interests decision making:

• Section 5 clarifies common law decision making and acts which are undertaken in connection with care and treatment

• Section 6 sets limits to section 5 acts particularly in the area of restraint, as well as clarifying the priority given to Lasting Power of Attorney.

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Treatment not permitted under the MCA

• Treatment to which section 57 MHA applies, that is: treatment requiring consent and a second opinion

• ECT to a detained patient• What about ECT for incapacitous informal patients?• Treatment for mental disorder to a detained (MHA)

patient• Treatment to a SCT patient whilst in the community.

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MHA - Capacity and Consent• MHA Code, 23.27-23.36• For patients over 16, capacity assessed as per MCA• For patients under 16, competence assessed as per the

‘Gillick’ (or ‘Fraser’) rules• “Competence means that the child has sufficient

understanding and intelligence to enable them to fully understand what is involved in a proposed treatment” maturity comes into it. – Reference Guide, 17.17

• Even though treatment may be given compulsorily, “the patient’s consent should still be sought before [it] is given, wherever practicable”– MHA Code, 23.37

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overlapThe Mental Health Act provides a legal framework

for detention for the purpose of treating mental disorder, using compulsion where necessary.

Treatment for physical disorder cannot be given without consent under the Mental Health Act.

However a patient may be detained for the assessment and or treatment of their mental disorder and if, and only if, the patient lacks capacity to decide on physical treatment a best interests decision may be made under the Mental Capacity Act 2005

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DoL

MHA

MCA

Treatment overlap MHA Part IV

Detention overlap – Eligibility.

With the Kind Permission of Neil Allen, Thirty Nine Essex

Street Chambers

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Which Act to use?

You cannot pick and choose between the MHA and MCA.

If the Mental Health Act could be used it should be used.

The Mental Health Act has primacy.This is underlined in GJ v The Foundation Trust

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However..

• if the patient does not meet the threshold criteria in s2 and or s3 (see slide 5) of the Mental Health Act, and the nature of the restrictions on their liberty which are necessary to provide care amount to a deprivation of liberty, an application for DoLS should be made.

DoLS: What are the Deprivation of Liberty Safeguards

• The safeguards (inserted into the MCA) provide legal protection through the use of prescribed procedures for people who lack capacity and for whom deprivation of liberty in a hospital or care home may be necessary and, for whom the Mental Health Act would not be appropriate.

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The outline procedure for authorising detention under (MCA) DoLS

Managing Authority (hospital/care home)

identifies a potential Deprivation of Liberty applies for authorised deprivation of liberty to the

Supervisory Body (Primary Care Trust / Local Authority).The supervisory body arranges the following assessments:Age, Mental Health, Mental Capacity, Best interest,

Eligibility, No refusals.

Authorisation may be granted for up to one year

DoLS Assessors

• Mental Health Assessor – a registered medical practitioner who has undertaken additional training for the role.

• Best Interest Assessor (BIA) – a health or social care professional who has undertaken additional training for the role.

• CPD requirements – annual refresher.

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Outline procedures for admitting to the Mental Health Act

Two registered medical practitioners (one of whom is approved under section 12(2) examine the patient. May make a medical recommendation(s) for detention under s.2 or s.3.

An Approved Mental Health Professional assesses the patient and consults with their nearest relative and, may make an application (for detention) founded on the medical recommendation(s).

The application (pink section papers) are received on behalf of the hospital managers(Trust Board)

The patient and their nearest relative are informed of their rights.

Section 12 MHA

• Specifies the requirements that apply to medical reccomendations

• Subsection (2) provides for the Secretary of State to approve doctors who have special experience in the diagnosis and treatment of mental disorder.

• Approval delegated to Strategic Health Authorities (NCB post April 2013)

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