Transcript Document

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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When is it appropriate to use the Mental Health Act
(MHA) rather than rely on the Mental Capacity Act
(MCA)?
How does the MCA affect people lacking capacity
who are also subject to the MHA?
In what circumstances can certain treatments not
be given for a mental disorder to someone who
lacks capacity to consent to it?
Where would use of the provisions of the MHA,
MCA and Deprivation of Liberty Safeguards (DoLS)
apply?
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 aftercare 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)
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 overridden
• Detention can over-ride an Attorney or
Deputy
• IMHA
Appropriate Restraint Under the
MCA
Restriction
Deprivation
When Can a Person be Detained
Under the MHA?
Mental
disorder
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:
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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 lifesaving 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
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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
Individual
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Social/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
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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:
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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.
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Which Act authorises the treatment?