I’ve avoided this one like the plague! … but it came at me recently, so I thought I can’t dodge it any more! The interface between the Mental Health Act 1983 and the Mental Capacity Act 2005.
Thankfully for the sake of my head, a lot of this discussion about the interface between the two Acts is for Approved Mental Health Professionals (AMHPs) and hospitals and doctors, wrapping their considerable minds to the questions which are frequently discussed in their training. Not much of it ends up at the feet of front-line police officers to make decisions, hence me able to dodge this to an extent.
But an incident drawn to my attention a few months back gave an example of where officers had to make a decision, so I wrote this post and I’ve delayed its publication deliberately to put some distance between events and the person involved and I’ve changed some of the limited circumstances without changing the legal point under discussion.
The situation was a fairly normal one: someone detained by the police under s136 MHA has been removed to an Emergency Department as a Place of Safety and assessed there by an AMHP and two doctors, requiring admission to hospital. There was no bed – as there often isn’t. The question then arises, what happens at the end of the 136 process?
The suggestion was made to two police officers that they use the Mental Capacity Act to detain the person beyond the 24hrs afforded by the s136 framework.
THE INTERFACE
People who stuck in at skool much more than I, have written and spoken at length about the interface here. There are a number of important stated cases and I’d encourage anybody who wants a broader knowledge than I’m about to offer to read a “Shedinar” from barrister Alex Ruck-Keene KC – he’s a real authority on mental health and capacity law, including on its interface but even he uses the word “dread” in his title on this! Incidentally, Alex was one of the barristers involved in the “Sessay” case, a judgment many officers will be familiar with regarding mental health situations in private premises.
Essentially, what police officers need to know is this –
- The MHA is the legal framework for intervening to deal with people who require treatment for mental health problems and once you’ve started off down that path, you’re committed to it.
- The MCA then becomes something which can be considered for other kinds of intervention, such as urgent treatment for non-mental / physical conditions.
For example, a s3 MHA patient in a hospital once had a problematic pregnancy and you cannot be treated against your will under the MHA for pregnancy related problems (because the MHA is about treatment of mental disorder or the consequences of mental disorder). So despite already being sectioned, the hospital caring for the patient’s pregnancy complications sought an order from the Court of Protection, given a lack of capacity on her part to make those decisions for herself.
So nothing prevents one person being subject to MHA intervention and MCA intervention at the same time or consecutively, but the two frameworks exist for different reasons and you cannot just chop and change between them. When it comes to AMHPs and DRs making decisions about which framework to choose, the questions are –
- Is the person a mental health patient?
- Is the person an objecting mental health patient’?
- Can the person be detained under the MHA?
- If yes to all three – the MCA cannot be used.
- If no to any, then then MCA can be used.
OUR 136 SITUATION
So our officers are sat in ED with a lady who needs a bed in order to become “sectioned” – she has been detained MHA by the police in the first instance, assessed MHA by an AMHP and two Doctors and a decision taken that MHA admission is required. This is MHA for a mental disorder all day long. Unfortunately for everybody who works in the real world, the legal answer to this is for the NHS to identify the mental-health bed in a reasonable time-frame that does not compromise the lady’s human rights (ie, her right to life, liberty and protection from serious harm) and in any event, within the 24hrs offered by the 136 framework. You can tell me that we don’t have enough beds and I’d nod in agreement and sympathy – but this difficulty doesn’t change the legal reality the MCA cannot become a stop-gap, unless very specific circumstances justify it.
This also came up in a slightly different scenario which is fully public because of an inquest in Leicestershire.
After the death of David Stacey in 2017, there was an expert witness psychiatric report from a doctor about the handling of David’s case. In short, he’d been encountered by the police in the street outside his home in obvious distress. It was not immediately serious enough for the officers to use s136 MHA and they took him inside to see if anyone else was there and get him safeguarded. The street triage car came and the nurse arranged an MHA assessment overnight in David’s home, which concluded he required admission under the MHA. The police quite properly left that with mental health professionals to organise but those professionals decided to leave David in his home alone, returning to their office to have the day shift team find the bed and get him admitted. Prior to this occurring, David tragically died in car accident.
Before the professionals left, they had asked the police to return and look after David until the bed was found – this request was declined by the duty inspector. In fairness to him, the Code of Practice MHA does point out that post-MHA assessment care is for the NHS to organise. The expert witness report however said that not only should officers have returned to the location, they were obliged to do so(!) and should have removed David from the premises under the MCA to hospital until a bed was found. The report did not say to which hospital David should be removed, bearing in if there were an obvious location, the AMHP could have thought about ‘sectioning’ David to that place and it did not rationalise legally why and how the MCA should come in to play.
DIFFICULT DECISIONS
These are difficult decisions, when the real world of resources bumps up against the somewhat ideal world of legislation. You can take your view about how we got here – perhaps you think legislation hasn’t kept pace with how organisations operate; perhaps you think organisations have allowed common practice to evolve aware from the legal frameworks? It doesn’t matter to the officers in ED being asked to rely upon the MCA once the s136 framework has run out or to return to David’s address and remove him under the other framework.
In David’s case, the barrister representing the Chief Constable managed to dismantle the legal view of the doctor about the MCA and it’s worth bearing in mind when dealing with doctors who push this argument, many of them have little or no formal qualification in legal issues. Yes, they will have “on the job” training and some CPD but this doesn’t often amount to expertise and we should remember what another Coroner said about assuming medical professionals have expertise they actually don’t. Certainly the expert witness in David’s case had no legal qualification at all so quite why he’s expertise was being sought on legal issues when the Coroner’s court itself was full of barristers, I’ve no real idea.
Of course, another way through situations like David’s and all the similar situations like our officers in the ED is for the NHS and AMHPs to work together to ensure there are no human rights violations like negligently releasing people when it’s known they may come to or cause harm and when detaining them outside the statutory framework is an obvious no-no. Nothing in law prevents an AMHP making their proper MHA application to a hospital where there is a Place of Safety and holding the person there under s2, for example. This has actually happened in the real world and commented upon in the Care Quality Commission’s inspection reports about the MHA.
Legal punchline here: once professionals have started down the MHA route for someone’s care and treatment, they’re kind of committed to that framework and the MCA is something else for other matters.
Winner of the President’s Medal, the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions expressed are my own – they do not represent the views of any organisation. (c) Michael Brown, 2024
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – www.legislation.gov.uk
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