The Interface Between the Mental Capacity Act and the

Mental Health Act

Anne McGarry Lead Nurse for Safeguarding Adults and

Mental Capacity

Consider

1. When is it appropriate to use the Mental Health Act (MHA) rather than rely on the Mental Capacity Act (MCA)?

2. How does the MCA affect people lacking capacity who are also subject to the MHA?

3. In what circumstances can certain treatments not be given for a mental disorder to someone who lacks capacity to consent to it?

4. Where would use of the provisions of the MHA, MCA and Deprivation of Liberty Safeguards (DoLS) apply?

5. Practical and ethical challenges in clinical practice

Who Does the MHA Apply to?

• Serious mental disorder

• At risk

• Need to be detained in hospital for assessment or treatment

• Allows treatment without their consent

• Can be subject to guardianship or after-care under supervision

Similarities and Contrasts

Mental Capacity Act Mental Health Act

Criteria •Aged 16+•Impairment of, or disturbance in, the

functioning of the mind or brain•Lacks capacity to make specific decision•Decision is in best interests

• No lower age restriction• Mental disorder i.e. any disorder or disability of the

mind of a nature or degree warranting detention• Risk to health or safety of patient or protection of

others• Informal admission is not appropriate• Most appropriate way of providing care/treatment

Assessors/

decision-makers

• The person closely connected with the decision to be made

• In most cases two doctors and an Advanced Mental Health Practitioner

What is allowed • Acts in relation to the care and treatment of a person with either mental or physical health without time limit

• Detention in hospital• Treatment to be given for mental disorder

Limitations • Does allow minimal restraint• Where restraint is used it must be

proportionate• Cannot be used to deprive of liberty• No entitlement to free aftercare services• No automatic legal hearing to challenge

decision • No consent to treatment safeguards• No nearest relative protection

• Does not authorise treatment for physical health problems (unless intrinsically linked with mental disorder)

Mental Capacity Act Mental Health Act

Protection for the person • Legal criteria must be met for an act to take place

• Consultation with others (as part of best interests)

• Challenges to the Court of Protection

• Detention criteria must be met • Assessment by three people who must

reach agreement• Nearest relatives rights at the point of

admission and power of discharge • Can appeal to hospital managers and

tribunals

Protection for decision-makers • Protection for liability if the requirement of the Act has been followed

• Section 139 (action against individual not possible unless they have acted in bad faith or without reasonable care)

Other considerations • Valid and applicable refusal of treatment

• An attorney or deputy can give or withhold consent

• Person already detained under the MHA

• Treatment for mental disorder cannot be given under MCA

• IMCA

• An advanced decision can be over-ridden

• Detention can over-ride an Attorney or Deputy

• IMHA

Similarities and Contrasts

Appropriate Restraint Under the MCA

Restriction Deprivation

When Can a Person be Detained Under the MHA?

Mentaldisorde

r

Nature or degree

Health or safety and/or the protection of others

When to Consider Using the MHA Rather than the MCA

When the person:

• Needs treatment • cannot be given under the MCA• Has made a valid and applicable

advance decision to refuse all or part of that treatment

• May need to be restrained

When to Consider Using the MHA Rather than the MCA

• Needs safe and effective treatment

• lacks capacity to decide on some elements of the treatment but

• has capacity to refuse a vital part of it

• Compulsory treatment under the MHA

When to Consider Using the MCA

Acts in connection with care and treatment:

• Medical and dental treatment• Diagnostic tests, physiotherapy or chiropody• Surgical treatment• Taking of blood or body samples• Nursing care• Emergency procedures – CPR • Surgery

What are the MCA Limits?

Protection if the restraint is:

• Necessary to protect from harm • In proportion to the likelihood and seriousness of that

harm

No protection for actions that:

• Deprive a person of their liberty• Does not allow giving treatment that goes against a

valid and applicable advance decision to refuse treatment

The MHA/MCA Interface Following GJ

The case of GJ vs The Foundation Trust:

Important guidance on when to use the MCA and when to use the MHA

• Objecting requirement• Eligibility requirement

Guidance

• Separate out the treatment

• Mental treatment can include treatment for physical disorder only if connected to mental disorder

• Apply a ‘but for’ test –

• GJ was to be detained for treatment for his physical disorder,

• he was not ineligible for DoLS

Mentally Disordered or Lacking Capacity?

Case Example Continued

Mental capacity perspective:

The Coroners Court focused on whether Ms Wooltorton was legally competent to refuse life saving treatment

Had an AD

Mental disorder perspective:

Did Ms Wooltorton have a mental disorder of a nature or degree that would have warranted detention or treatment under the MHA for her health and safety?

Case Example Continued

• MHA provides a legal framework • potentially self-harming behaviour within the context

of mental disorder • justifies involuntary assessment and treatment• Use of the MHA might then permit the necessary life-

saving intervention• Critical decision & assessment around suicide• History highly relevant

Case judgement

The Coroner concluded that :

‘any treatment to save Kerrie’s life in these circumstances would have been unlawful’

letter was ‘not an advanced decision’ under the MCA.

Case example

• E is a 32-year-old woman who suffers from extremely severe anorexia nervosa, and other chronic health conditions

• Compulsory treated under the MHA on about 10 occasions• Previous advance decisions • In 2011 Professor L at an eating disorder unit expressed the

view that her anorexia had moved into a severe and enduring phase but that she could benefit from treatment.

• 2012 All treatment options have been exhausted. • Placed on an 'end of life' care pathway • An urgent application was made to the Court of Protection by

her local authority

Case Judgement

• E lacked capacity to make a decision about life-sustaining treatment

• It was in her best interests to be fed against her wishes with all that this entails

• Timing and presentation of the application• Advice on what treatment options were

actually available

Case Example

• 34 year old man• Diagnosis of schizophrenia and learning disability• Lived at home with mother, father and three brothers • Socially isolated• Mother refused AD to go to hospital• Referred by GP to district nurses with a gangrenous toe

•

Case Example Continued

• Treated with dressings and intermittent antibiotics and pain killers

• Over time gangrene spread to both legs

• Admitted to hospital, required amputations to both legs

• Died of septicaemia and aorta-phemoral thrombosis

Case Example Continued

• Coroner’s verdict – natural causes to which neglect contributed

Lessons in this case:

• Assessment of MC• Focused on MH /over reliance on MHA• Carer considered to be acting in best

interests• Consider Adult safeguarding

Complex cases

Multi-factorial factors

IndividualSocial/family Treatment

MDT

• Need to draw upon expert opinion for complex cases• Improve and apply knowledge of MCA, use of IMCAs and safeguarding• Interagency comprehensive holistic needs assessment of complex cases• Diagnostic overshadowing • On going assessment and for deteriorating patients with complex needs including those who DNA • Continual monitoring of deteriorating patients

Treatment Factors

• Risk of diagnostic overshadowing • Co-morbid conditions• Clouding of judgement• Underlying pathology• Emphasis on continued care in the

community despite ongoing deterioration • Treatment does not match complexity of

condition• Comprehensive holistic needs assessment

across agencies

MDT /Interagency Factors

• Joint assessment

• Opportunities for discussion and review to assist judgement and planning

• When to recognise that current care and treatment is not in best interests

• Consider Court of Protection earlier

Contextual Factors

Social/family factors:

• Judgement clouded by family wishes

• Consider deteriorating events when to over-rule

• ? irrational decisions by carers

• Who is acting in best interests

Contextual Factors

Individual factors:

• Patient History • Current presentation• Evidence of on –going deterioration• Ongoing asessment of fluctuating and functional

capacity• Treatment of underlying conditions

Case Example

Mrs A is severely depressed and extremely withdrawn. She passively goes along with her husband who brings her to the ward for admission. She makes no attempts to go when her husband leaves but later sits staring at the door asking to go home. She cannot engage in any discussion about the treatment plan. She lacks decision-making capacity.

• Should she be treated under the MCA?• Or given that she has not consented to the admission

and looks as if she wants to leave, would the MHA would be more appropriate?

Case Example 3

Mr D suffers schizophrenia and has previously been admitted to hospital and treated successfully with anti-psychotic drugs. Between episodes he makes a good recovery and decides to make an advance refusal of treatment with all anti-psychotics as he considers the side effects of this type of treatment unacceptable. Mr B becomes unwell again and passively co-operates with admission to hospital. He is extremely frightened by auditory hallucinations stating that he is going to be executed. He refuses oral antipsychotics believing these drugs will kill him.

It is the view of the psychiatry team that Mr B lacks capacity to decide about treatment. The consultant thinks treatment should be given by injection. The team is aware that Mr B has made an advance decision to refuse treatment with all anti-psychotic drugs.

Case Example

Mrs B is admitted informally having made a serious attempt on her life. She becomes distressed and agitated and insists on leaving hospital stating that it is her intention to ‘do it properly’. The duty doctor is called, believes that she is at substantial risk of self harm if she were to leave hospital and therefore detains her on section 5(2) MHA. Whilst waiting for the further assessment to consider detention under section 2 or 3, Mrs B starts banging her head against the wall causing a large abrasion to her forehead. Despite restraint by the nursing team she remains agitated, continues to try and harm herself and is unable to engage in discussion about treatment options her decision-making capacity is currently impaired. The doctor decides that an IM injection of Lorazepam needs to be administered. Her distress makes it impossible to discuss this.

• Which Act authorises the treatment?