Transcript Understanding the Mental Capacity Act 2005

Introducing Mental
Health Law
Peter Bartlett
Nottinghamshire Healthcare NHS Trust
Professor of Mental Health Law
University of Nottingham
The Basic Rules
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people get to make up their own
minds.
The law generally allows intervention;
it does not generally require
intervention.
Any departure from those rules
requires specific legal justification.
Two Obvious
Justifications
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Mental Capacity Act 2005/common law
Mental Health Act
Determining Incapacity
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Decision specific
Can individual understand relevant
information?
Can individual retain the information
Can individual weigh information
Caveats about Capacity
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It’s about ability
Stereotypical decision-making
Can change over time
Advance Decisions to Refuse
Treatment
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Refusals only
Are advance refusals your problem?
Treatment in Best
Interests
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Current law: flexible
Under Act:
Consultation with family and other carers
 Substitute decision approach relevant: what
would the person have wanted?
 Substitute decision approach not necessarily
determinative
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Substitute DecisionMakers
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Court-appointed deputies
Lasting Powers of Attorney
Is the document registered?
 Does individual lack capacity?
 Does the document cover the decision?
 Does not alter best interests test
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Otherwise: you make best interests
determination
Confidentiality
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Right to disclose necessary information
to decision-maker?
Best interests test?
What can you disclose when asking
carers about best interests?
Mental Health Act
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Ways into Act’s legal compulsion
powers: s 2 and 3
Once in: MOST treatments for 3
months
After that: SOAD second opinion
In community: ACUS, guardianship,
LOA
Definitions of Mental
Disorder
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Kinds of mental disorder
Mental illness
‘mental impairments’
‘psychopathy’
‘promiscuity or other immoral conduct,
sexual deviancy or dependence on
alcohol or drugs’
S 2: Application for
Assessment
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(a) he is suffering from mental disorder of a
nature or degree which warrants the
detention of the patient in a hospital for
assessment (or for assessment followed by
medical treatment) for at least a limited
period; and
(b) he ought to be so detained in the
interests of his own health or safety or with
a view to the protection of other persons.
Processes of Detention
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ASW (or nearest relative)
2 doctors-- s 12 psychiatrist and, if
possible doc with knowledge of person
assess individual personally
right of NR to object (but can be
replaced)
Emergencies, etc
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s 4: emergency applications - second
medical cert within 72 hours
s 135: JP order re ‘ill-treated’, ‘neglected’,
not ‘under proper control’ or alone and
unable to care for self
s 136: police finding person in ‘public’ place,
in ‘immediate need of care or control’
s 5 holding powers
Treatment 1
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Psychosurgery and surgical
implantation of hormones to reduce
male sex drive: only if consent AND
second opinion from SOAD
Treatment 2
Consent OR second opinion from SOAD
for
 ECT
 Treatment beyond 3 months
Community controls
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Guardianship?
After-care under supervision?
LOAs
Review Tribunals
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One challenge per section
composition
criteria similar to admission criteria but MAY release even if threshold met
challenge to detention only, not
treatment
Re-Sectioning
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Not unless ‘the ASW has formed the
reasonable and bona fide opinion that
he has information not known to the
tribunal which puts a significantly
different complexion on the case as
compared with that which was before
the tribunal.’