The Interface Between the Mental Capacity Act and the Mental Health Act

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The Interface Between the Mental Capacity Act
and the Mental Health Act

• Anne McGarry
• Lead Nurse for Safeguarding Adults and Mental
  Capacity

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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

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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

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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)
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Similarities and Contrasts
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
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Appropriate Restraint Under the MCA

• Restriction Deprivation

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When Can a Person be Detained Under the MHA?
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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

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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

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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

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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

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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

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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

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Mentally Disordered or Lacking Capacity?
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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?

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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

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Case judgement

• The Coroner concluded that
• any treatment to save Kerries life in these
  circumstances would have been unlawful
• letter was not an advanced decision under
  the MCA.

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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

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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

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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

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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

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Case Example Continued

• Coroners 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

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Complex cases

• Multi-factorial factors

Individual
MDT
Social/family
Treatment

• 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

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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

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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

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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

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Contextual Factors

• Individual factors
• Patient History
• Current presentation
• Evidence of on going deterioration
• Ongoing asessment of fluctuating and functional
  capacity
• Treatment of underlying conditions

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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?

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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.

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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?