The Interface Between the Mental Health Act 1983 and the Mental Capacity Act 2005 NYCC AMHP Refresher Programme Alwyn Davies September

Programme Overview MCA Provisions MHA Provisions DOLS Interface Summary and Key Points 2

“… as we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns - the ones we don't know we don't know.” Donald Rumsfeld, United States Secretary of Defense, Department of Defense news briefing,

Confusion Reigns! “ The nature of the relationship between the MHA and MCA is, so far as it relates to detention of patients, is far from clear parliament has created a recipe for confusion which will inevitably result in a lack of consistent practice”. (Jones,2008) 4

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Overview Anyone detained or otherwise subjected to compulsion under the MHA 1983 does not necessarily lack capacity; many have the capacity to make decisions for themselves. Similarly, an incapacitated individual does not necessarily require treatment for mental disorder under the provisions of the MHA Indeed, there is a group of individuals who fall into both categories, which are as follows: 6

Cont. An incapacitated individual may require treatment for mental disorder as an in-patient or, A patient detained under the MHA 1983 may lose capacity and require treatment for a physical disorder. A patient subject to s17 MHA 1983, conditional discharge, guardianship or a CTO may require treatment for both physical and mental disorders. 7

Cont Cont. As a general principle, the informality of the MCA 2005 should be preferred to the more rigid MHA 1983, unless the latter must be used. The interface between the detaining provisions of the two Acts is based upon a number of principles, which are, to a certain extent, in conflict – ‘Best Interests’ v ‘Risk Management’ However! 8

Assessors and professionals need to apply their own professional judgement to individual situations and decide which Act to use. 9

Important Considerations AMHPs will be at the forefront of working with the interface between the MCA 2005 & MHA 1983 both in terms of doing the eligibility assessment and when undertaking Mental Health Act Assessments. Non-AMHPs do not have to do the eligibility assessment but will have to have a basic awareness of the basic principles of the two Acts. 10

Cont. The MHA 1983 may supersede the MCA 2005 if the treatment is for mental disorder Detention and treatment for physical disorder will always be regulated by the MCA The MCA 2005 should be considered first unless the MHA 1983 has to be used. However, the application in practice is not always that straightforward. 11

MCA is the preferred option where: It will meet the P’s needs. It is possible or sufficient to rely on the MCA to meet P’s needs safely and appropriately. The MCA will enable P’s mental disorder to be safely and effectively assessed. The MCA provides sufficient authority to provide the necessary care and treatment. There is no need to use the MHA, Indeed, it may be unlawful to do so (CoP.13.11). 12

Cont. The decision taken is in P’s best interests and they lack the capacity to consent. P meets the criteria under s2(1) MCA 2005, ie Lack of capacity. The action taken benefits P and can also benefit others, however, this has to have tangible/intangible benefits for P. It is not solely used for public protection. The treatments can be given under MCA as per s5 Acts. P is aged 16 or over. 13

Cont. The care and treatments do not deprive P of his liberty (s6 MCA 2005) The treatment is solely for a physical disorder. Although the MCA clearly covers treatment for mental disorder and physical conditions, P still comes under the scope of the MCA 2005, if a donee or deputy gives exercises valid authority. 14

Section 5 Acts Section 5 Acts quite wide: Includes many personal care activities (see CoP, 6:5) and healthcare and treatment (including emergency care) procedures. Decision maker must be acting in P’s best interests and follow the checklist in s4 MCA 2005 and the least restrictive principle in s1(6). Offers legal protection if the above are followed. 15

Section 6 Acts S5 MCA 2005 can be used as long as two conditions are satisfied: any restraint is necessary and; it is a proportionate response to the likelihood of P suffering harm and the seriousness of that harm. 16

Cont. However: If the decision maker uses, or threatens to use force to secure the doing of an act which P resists, or restricts P’s liberty of movement, whether or not P resists. Section 6(5) makes it clear that an act depriving a person of his or her liberty within the meaning of Article 5(1) of the European Convention on Human Rights cannot be an act to which s5 provides any protection. 17

Restriction or Deprivation? Useful pointers 18

Restriction of Liberty It is suggested that these examples, on their own, would not, constitute a DoL (Jones, 2008, Pg.483) Use of benign Force (force not being used to overcome resistance). Patient being cared for/treated in a locked ward/home. The door locks/handles make it difficult for P to leave. 19

Cont. Staff returning P back to the ward. The use of benign force to feed, dress or provide medical treatment for P. Dissuading P from leaving the ward/home- with benign force. Placing reasonable limitations (time/place) on contact with P. Use of restraint/medication/seclusion in an emergency situation. Temporary refusal to allow P to leave the hospital/home due to a lack of an escort who would support P. 20

Deprivation of Liberty It is suggested that one or more of the following factors may constitute a DoL (Jones, 2008, Pg.482) Force, threats or sedation to take a resisting P to hospital/care home. Force, threats or sedation to take a resisting P to hospital/care home. Misleading (Subterfuge P in order to ensure their co-operation Misleading (Subterfuge) P in order to ensure their co-operation The decision to admit P to hospital/care home is being opposed by relatives/carers. The decision to admit P to hospital/care home is being opposed by relatives/carers. 21

Cont. Force (not benign or proportionate) being used to stop P from leaving the ward/home-when they are persistently/purposefully trying to do so. Force (not benign or proportionate) being used to stop P from leaving the ward/home-when they are persistently/purposefully trying to do so. Using a locked door to achieve the above. Using a locked door to achieve the above. Sedation being used to prevent P from leaving the ward/home. Sedation being used to prevent P from leaving the ward/home. Force being used in non-emergency situations to ensure that P receives treatment for his or her mental disorder. Force being used in non-emergency situations to ensure that P receives treatment for his or her mental disorder. 22

Cont. Restricting P’s contact with family/carers Refusing any request for P to be discharged back into the care of P’s carers/family – ie HL; JE & DE. P being denied freedom of association within the home/hospital. Being subjected to a care regime that severely restricts P’s autonomy. P’s access to the community is denied or severely restricted primarily on the grounds of public safety. 23

Points to consider! Everything! What, when, how long, effects, why, aims and objectives. Degree and intensity. How are such restraints and restrictions implemented. What about any less restrictive alternatives Cumulative effect of all proposed and/or actual restrictions. 24

MCA 2005 Summary Use the less restrictive option of the MCA 2005 wherever possible. Always attempt to go back to using the MCA Remember that some P’s may be lawfully managed under the MCA, thus there may be no need for the MHA

Limitations of the MCA Limitations of the MCA should not use the MCA 2005 if: An Advance Decision objects to the treatment for the mental disorder – this may need to be overruled. P can only be managed by depriving him or her of their liberty. The degree and intensity of the restraint would invariably lead to a deprivation of liberty. 26

Cont. P is liable to be detained under the MHA 1983, ie. s17 MHA 1983, conditional discharge, etc. P cannot be restrained lawfully as per s6 MCA. Personal Health & Welfare (LPA) is refusing consent. P expected to regain capacity and refuse/object to the treatment: – capacity fluctuates! P is under

Cont. If P meets the criteria for s2 or s3 MHA and is objecting to hospital admission for assessment and/or treatment-wholly or partly. P would be deprived of their liberty but under 18 and therefore not eligible for the DoLS safeguards. There is some other specific identifiable risk that the person might not receive the treatment they need if the MCA is relied on and that P or others may be at risk. 28

MCA 2005 Limitations MCA 2005 cannot override or interfere with any treatment being given under Part IV of the MHA 1983 (s28 (1) MCA 2005). 29

MHA 1983 should be preferred if: P is objecting to part or all of the treatment and care being offered under the MCA P is aged under 18. P has made a valid and applicable advance decision refusing a necessary element of the treatment for which they need to be admitted into hospital for. 30

MHA 1983 should be used if: The use of the safeguards would conflict with a decision made by P’s attorney, deputy or of the Court of Protection P meets the criteria for s2 and s3 MHA 1983 and is objecting to being admitted to or remaining in hospital. It is felt that P requires the greater safeguards that exist or would occur when detained under the MHA

Clarifying objections! Must take into account all the circumstances, so far as they are reasonably ascertainable. The reasonableness of any objection is not the issue – in some cases the patient will be perfectly able to state their objection In other cases – assessors need to consider the patient’s views, feelings, beliefs, wishes, both current and in the past – as far as they were ascertainable. If there is reason to think that a patient would object, if able to do so, then the patient should be taken to be objecting. 32

MHA 1983 should be used if: It would be hard to rely on the MCA 2005 alone if: P’s lack of capacity fluctuates or they may regain capacity but if they did so, would not be expected to consent. The degree of restraint needed (justifiable due to the level of risk) would not be so under s6 MCA 2005 ie it could not be said to be proportionate to the risk P posed to him or herself personally. 33

Cont. There is some other specific identifiable risk that the person might not receive the treatment they require if the MCA is relied upon and that either P, or others, might potentially be at harm as a result. If P is or needs to be subject to any treatment for their mental disorder under Part IV MHA. If P is subject to a CTO, conditional discharge or guardianship – and this conflicts with any DoLS provisions. 34

MHA 1983 should not be used if: P can be treated under the MCA 2005 or the DoL safeguards. P is not objecting to the treatment proposed. P does not have a valid and applicable decision refusing treatment and he or she is compliant with the proposed treatment - Criteria for detention very unlikely to be met - See Jones, Para:1028. P’s deputy or donee is not objecting to their admission into hospital or the treatment for their mental disorder. 35

Cont. Part IV cannot be applied to s4, s5 or s136 MHA The MCA applies to all these emergency sections. P is subject to Guardianship or conditional discharge and: -any care or treatment not related to the powers of P’s Guardian the MCA DoLS processes must be followed. -P’s treatment relates to any form of physical disorder. 36

Consider the MHA 1983 if: Can’t give treatment or care needed without a DoL. Treatment not possible under MCA (advance decision). P needs restraining in a way not allowed under MCA Cannot treat P safely or effectively compulsorily. P lacks capacity for some elements of treatment – but has capacity to refuse a vital part of it and has done so in the past and may do in the future. 37

Cont. If P will not receive the treatment they require and could be harmed as a result However, compulsory treatment under the MHA not an option if: -Mental disorder does not justify detention -Treatment is for only a physical illness or disability An IMCA does not need to be involved in decisions about medical treatment or welfare if related to decisions made under the MHA 1983 – an IMHA would (See MHA CoP: 20.8) 38

The DoLS Interface 39

DoLS arose out of the Bournewood adjudication MCA 2005 (as amended by the MHA 2007) introduced the Deprivation of Liberty Safeguards (April 2009). People who lack capacity can only be deprived of their liberty by a process set down by law – (Article 5 HRA 1998 Compliant). Safeguards to prevent arbitrary detention. 40

Cont. Safeguards to prevent arbitrary detention: detention must be unavoidable and in P’s best interests. detention is made following a defined process and in consultation with specific authorities. access to the Court of Protection for review of the detention. 41

DoLS can be used if: The Six Qualifying Assessments are fully met: 1. Age assessment 2. No refusals assessment 3. Mental capacity assessment 4. Mental health assessment 5. Eligibility assessment 6. Best interests assessment It is largely the eligibility assessment which gives rise to issues concerning which Act to use. 42

Cont. Age Assessment – P must be aged 18 or over. No Refusals – DoLS can be used if the proposed care or treatment does not conflict with an existing Advance Directive or come under the scope of a deputy or donee. Mental Capacity – P lacks the capacity to make the decision about the specific care and treatment. (MCA 2005 CoP must be adhered to). 43

Cont. Mental Health – P has a mental disorder as per s1 MHA 1983 – remember no LD exclusion as in MHA P can be diagnosed as being of ‘unsound mind’ and therefore comes under the scope of Article 5 HRA See MB (1997) 2 FLR 426, re: contrast. 44

Cont. Eligibility Assessment – P is not (at the time) detained under the MHA 1983 and is therefore an in-patient. Any authorisation is not in conflict with any decision made by P’s guardian, ie s7 MHA 1983, place of residence. P is not subject to conditions associated eith s17 leave, a CTO or conditional discharge. P’s proposed care and treatment under a DoL is not in any way in conflict with any obligation under the MHA

Cont. MHA 1983 may supersede the MCA 2005 at this point! Best Interests: P is assessed by the BIA as being deprived of his/her liberty. P would be at harm if DoLS were not in place. There is a likelihood of harm. No other care options are available that would help avoid a DoL. 46

Cont. Guardianship – DoLS can be used to decide on care and treatment issues for P even if he’s subject to s7 MHA 1983, but cannot decide where he lives if this is in conflict with the Guardian. 47

MCA 2005 (DoLS) and MHA 1983 (Guardianship) The issue of guardianship v Bournewood safeguards MCA Code of Practice says guardianship cannot be used to deprive P of liberty (13.16). This is highly questionable since JE v DE? Or is it? MCA Code of Practice says do not use guardianship to avoid using MCA (13.20). 48

Cont. Remember: cannot treat compulsorily under guardianship - MCA principles apply if P lacks capacity - LD qualifications under MHA Issues: - which is less restrictive, - which offers greater safeguards, - which arouses greater stigma? 49

Cont. Guardianship advantages:- ECHR compliant regarding procedure prescribed by law. Simple and intelligible. Greater rights for P ie. MHRT and NR. Specific right to convey and retake. Case law could challenge - conflicting views. See Jones MCA, Pg.247-Fennell (2007) in Jones, 2008, Para:1097) - greater safeguards and in line with Article 5 HRA

DoLS cannot be used if: If P does not meet any of the six qualifying assessments – therefore other options must be considered, ie. MHA P is aged under 18 (<18 s25 Children Act 1989 or MHA 1983 would apply. P has a valid and applicable advanced directive refusing the care for their mental disorder or a donee or deputy is doing so on their behalf - would have to consider MHA 1983 and CtoP to revoke LPA (s16 MCA, 2005). 51

Cont. P has the capacity to make the decision about the care and/or treatment being offered or planned. However, he may still meet the criteria for detention under the MHA, P does not have a disorder per s1 MHA Eligibility - P is subject to detention under the MHA 1983, includes those P’s under a CTO, guardianship and conditional discharge. 52

Cont. P meets the criteria for s2 and s3 MHA 1983 and no valid consent has been given by a donee or a deputy If P is objecting to parts or all of the treatment and or the care being proposed. See previous slides for ‘clarifying objections). It is not in P’s best interests and that the care and treatment required can only be given if he or she is detained under the MHA

Overview 54

Reasons to use the MCA 2005 Less restrictive. Can provide for mental and physical disorder. Most care and treatment can be delivered as s5 acts. Issue specific. IMCA (Independent Advocate). Support choice/wishes - in current and future situations/incidences, i.e. AD’s/LPA. 55

Reasons to use the MHA 1983 P objects or is likely to object. Offers greater legal safeguards around treatment and detention - rights to MHRT and Hospital Managers NR has greater powers, i.e. Objection and discharge. Right to speedy appeal and advocacy. After-care/CPA review arrangements. Care and Treatment likely to require more rigid regime/structure/intervention that P is likely to object to. 56

Reasons to use the MCA 2005 (DoLS) Ensures P can be given the care they need in the least restrictive regimes. Prevent arbitrary decisions that deprive vulnerable people of their liberty. Provide safeguards for vulnerable people. Provide P with a right of challenge against unlawful detention, i.e. Court of Protection. Avoid unnecessary bureaucracy. Appointment of a representative for P. 57

Final Thoughts! 58

“Alwyn, one more time, just what are the MHA and MCA interface issues?” 59

Scenarios Examples from Chapter 13 of the Mental Capacity Act 2005 Code of Practice. 60