1. The Mental Health Act & Mental Capacity act Dr Faye Tarrant ST5 Substance Misuse

2. Aims What is the mental capacity act & how is it used? What is the mental health act? How is the mental health act used? Sections you need to know about Patient rights Summary & Questions

3. Mental Capacity Act  MCA 2005 – framework to protect people that cant make decisions for themselves  Assess capacity, procedures for making decisions on behalf of those lacking capacity and safeguards

4. Mental capacity It is assumed all adults have capacity to make decisions, unless it can be established that they do not – Does the person have an impairment, or a disturbance in the functioning, of their mind or brain? – Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to?

5. Functional capacity testing  Understand the decision to be made and the information provided about the decision. The consequences of making a decision must be included in the information given.  Retain the information – a person should be able to retain the information given for long enough to make the decision. If information can only be retained for short periods of time, it should not automatically be assumed that the person lacks capacity. Notebooks, for example, could be used to record information which may help a person to retain it.  Use that information in making the decision – a person should be able to weigh up the pros and cons of making the decision.  Communicate their decision – if a person cannot communicate their decision – for example, if they are in a coma – the Act specifies that they should be treated as if they lack capacity. You should make all efforts to help the person communicate their decision before deciding they cannot

6. Capacity is dynamic and a specific function in relation to the decision to be taken. This will need to be regularly assessed in relation to each decision taken, and carefully documented.

7. 5 Principles of MCA  Presumption of capacity (section 1(2) MCA).  Maximising decision making capacity (section 1(3) MCA).  Right to make unwise decisions (section 1(4) MCA). People have the right to make decisions that others might think are unwise. A person who makes a decision that others think is unwise should not automatically be labelled as lacking the capacity to make a decision.

8. 5 Principles cont Best interests (section 1(5) MCA). Any act done for, or any decision made on behalf of, someone who lacks capacity must be in their best interests. Least restrictive option (section 1(6) MCA). Any act done for, or any decision made on behalf of, someone who lacks capacity should be the least restrictive option possible

9. A person MUST NOT be assumed to lack capacity based on: – Their age – Their appearance – Any mental health diagnosis they may have – Any other disability or medical condition they may have.

10. Making decisions for others  A person making a decision on behalf of someone else must: › Consider all the relevant circumstances › Consider whether and when the person will have capacity to make the decision in the future and whether to put off making the decision immediately (for example, if the person is experiencing severe mental distress, it may be that this distress will ease in the near future so that the person will be able to make their own decisions) › Support the person’s participation in acts done for him and decisions affecting him › Consider the person’s expressed wishes and feelings, beliefs and values and other factors that the person would be likely to consider › Take into account the views of carers, people with an interest in the person’s welfare, or those appointed to act for the person.

11. Mental health Act 1983 – amended 2007 Who can be sectioned? – Mental disorder “ any disorder or disability of the mind” of a nature or degree that warrants hospital detention – AND a risk to themselves or others or to their health Schizophrenia Bipolar Depression Anorexia Learning disability Personality disorders ?Delirium

12. Who can “section” people? Approved mental health practitioner (AMHP) – Social workers until 2007 now can be other professionals such as nurses, OTs and pharmacists Section 12 approved doctors – Medically qualified and recognised under section 12(2) of the act – Psychiatrists and GPs with appropriate experience

13. What sort of “section?”  Section 2 › Assessment order › Up to 28 days › Cannot be renewed › 2 doctors and an AMHP › If the two doctors agree that the person is suffering from a mental disorder, and that this is of a nature or to a degree that, despite his refusal to go to hospital, he ought to be detained in hospital in the interest of his own health, his safety, or for the protection of others, they complete a medical recommendation form and give this to the AMHP. If the AMHP agrees that there is no viable alternative to detaining the person in hospital, they will complete an application form requesting that the hospital managers detain the person. › Treatment, such as medication, can be given against the person’s wishes under Section 2 assessment › Right to appeal

14. Section 3 – Treatment order – 6 months initially – Can be renewed – Clear diagnosis and “appropriate” treatment available – After 3 months person has to consent to treatment or second opinion doctor needed – Right to appeal

15. Section 17 leave can be granted at the discretion of the responsible clinician Discharge is the responsibility of the RC Following discharge from s3 they will be subject to section 117 aftercare indefinitely

16. Emergency Orders Section 4 – 72 hours – Emergency situation – 1 doctor and AMPH – Second medical recommendation done in hospital – Infrequently used

17. Holding powers  5.4 › Nurses holding power for informal patients › Up to 6 hours › No appeal  5.2 › Doctors holding power for informal patients › Up to 72 hours › RC or nominated deputy – medical wards – consultant in charge of care. Unable to use in A&E or Outpatients › No right to appeal › Should precipitate a MHAA

18. Magistrates’/Police sections  S135 › AMPH applies to court if person believed to be mentally disordered and not allowing MHAA › Police take individual to place of safety for MHAA  S136 › Police can apply tjis to individuals they believe to be mentally disordered in public place › Lasts up to 72 hours › Taken to a place of safety for MHAA

19. Forensic sections  Section 35 and 36 › Pre trial › Equivalent to s2 but order made by magistrates or crown court + 2 doctors  Section 37 › Post trial › Similar to section 3, ordered by court and 2 doctors  Section 41 › Restriction order › Only home office can decide to discharge to the community

20. What about in the community? Section 17a – Supervised community treatment order

21. Test What are the 4 components of capacity – Understand – Believe – Retain – Weigh up pros and cons – Weigh up rights and wrong – Communicate decision – Justify decision

22. What is the section used by the police to detain an individual suffering from a mental disorder in a public place? – S135 – S2 – S4 – S136 – S163

23. How long does a section 2 last? – 30 days – 28 days – 3 months – 72 hours – 6 months – indefinitely

24. Who is needed to place someone on a section 2? – 1 GP, social worker – 1 AMPH, 1 Psychiatrist (s12 approved) – 1 Psychiatrist (s12 approved), 2 AMPHs – 1Psychiatrist (s12 approved) 1 other doctor (usually GP, preferably 12 approved ) 1AMPH

25. References  http://www.medicalprotection.org/uk/england- factsheets/MCA-assessing-capacity http://www.medicalprotection.org/uk/england- factsheets/MCA-assessing-capacity  http://www.mind.org.uk/mental_health_a- z/8059_mental_capacity_act_2005 http://www.mind.org.uk/mental_health_a- z/8059_mental_capacity_act_2005  http://en.wikipedia.org/wiki/Mental_Health_Act _1983 http://en.wikipedia.org/wiki/Mental_Health_Act _1983  http://www.mind.org.uk/mental_health_a- z/8052_mental_health_act http://www.mind.org.uk/mental_health_a- z/8052_mental_health_act  http://www.legislation.gov.uk/ukpga/1983/20 http://www.legislation.gov.uk/ukpga/1983/20

26. This is to certify that:......................................... Has reviewed/completed................ The Mental Health Act................. Date........................................