Richard Jones, 'Response to MHA Review (5): MHA or MCA?' (29/1/19)
Article This article argues against the MHA Review's recommendation that patients who lack capacity to consent to admission or treatment for mental disorder, but who are clearly not objecting, should only be detained under the MCA.
One of the most contentious recommendations of the Review is a recommendation which will significantly reduce the legal protections enjoyed by many patients who are detained in psychiatric hospitals. The recommendation is that:
"Only the MCA framework (DoLS, in future the LPS) should be used where a person lacks capacity to consent to their admission or treatment for mental disorder but it is clear that they are not objecting."
As this recommendation has been the subject of penetrating criticism by Dr Lucy Series in her "The Small Places" blog, this post will not offer a comprehensive critique but will confine itself to the following points:
1. People detained under the MCA enjoy far fewer protections than those detained under the MHA. Among the procedural protections enjoyed by those detained under the MHA are access to the Tribunal (including automatic referrals) and Hospital Managers as a means of seeking their discharge, the regulatory regime contained in Part 4 of the Act which is aimed at preventing inappropriate treatment for mental disorder being provided, and the right of their nearest relative to order their discharge. Additionally, those detained under s.3 are entitled to free after-care on being discharged from detention. By way of contrast, those detained under the MCA enjoy none of these protections and only a tiny minority will have their cases reviewed by the Court of Protection.
2. How is an objection to be recognised? The Review recognises that "'objection' is not always easy to identify, especially in people with cognitive impairments" and that "clear guidance will be required as to what objection looks like in practice in both the MHA and MCA Codes of Practice, and what practitioners should do where a person who was previously objecting is no longer doing so (and the other way around)". The Mental Capacity (Amendment) Bill which is currently before Parliament defines an objection as follows:
"(1) In determining whether P objects, regard must be had to all the circumstances (so far as they are reasonably ascertainable), including the following-
- (a) P's behaviour;
- (b) P's wishes and feelings;
- (c) P's views, beliefs and values.
(2) But regard is to be had to circumstances from the past only so far as it is still appropriate to have regard to them."
This definition gives considerable discretion to those tasked with determining whether an objection is present. For example, when is it "appropriate" to consider "circumstances from the past", should P's disturbed behaviour be viewed as a manifestation of his disorder or evidence of an objection, and is P's ability to express an objection being supressed by medication?
3. What is the rationale for providing compliant detained patients with far weaker protections? Early on in its life, the Mental Health Act Commission became concerned about the lack of safeguards for the "de facto detained" and urged the Government to extend its remit to cover such patients. It was felt that many of the de facto detained had not been formally detained under the MHA because a lack of objection had been caused by, for example, fear, the effect of drugs, timidity or ignorance. It was also felt that staff were failing to recognise objections. The Review's recommendation would result in history repeating itself in that although those detained under the MCA will be legally detained, they will have none of the protections granted to those detained under the MHA. There is a very strong argument in favour of the contention that compliant detained patients deserve exactly the same protections as the non-compliant. As Dr Series puts it: "For people who are unable to advocate for themselves in psychiatric settings, the risks of inappropriate medication and inappropriate detention are arguably equal - or potentially even greater - than for those able to assert a desire to leave or refuse treatment".
4. The Review's recommendation would result in psychiatric hospitals providing treatment to detained patients who will be subject to very different legal regimes. Frequently such patients will be treated in the same ward. This is a recipe for confusion for all concerned. The only means of avoiding such confusion and to provide equal protection for all detained patients is to reject the Review's recommendation and to ensure that all patients who are detained in psychiatric hospitals are detained under the MHA.