The MCA & The MHA
The main features
GP Registrars
12 December 2012
Chris Brace
NHS North Yorkshire and York
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Different Purposes
• The Mental Health Act 1983 and the
Mental Capacity Act 2005 are different
legal instruments with different powers and
safeguards
NHS North Yorkshire and York
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Aims
• The Mental Capacity Act 2005 exists to empower and
protect incapacitous adults. This Act provides a coherent
framework for decision making for incapable adults that
did not exist in the common law.
• The Mental Health Act 1983 provides a legal framework
for the treatment of patients with mental disorder, without
which there would be a risk of harm to the patient’s
health or safety or a risk of harm to others.
• “Mental disorder” is a threshold in both
NHS North Yorkshire and York
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MHA
• If the criteria are met the Mental Health
Act can be applied to a person with
capacity without that persons consent or
• may be applied to a non compliant or
dissenting patient who lacks capacity and
for whom detention is necessary.
NHS North Yorkshire and York
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Application of the MHA 1983
The Mental Health Act should be applied where a
patient…
S.2(2)(a) is suffering from mental disorder of a
nature or degree that warrants detention in
hospital for assessment (followed by medical
treatment)…
(b) …ought to be detained in the interests of his
own health or safety or for the protection of
others
(s1(2) “mental disorder” means any disorder or
disability of the mind
NHS North Yorkshire and York
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Application of the MCA 2005
• The Act and 2007 amendments only
applies to adults (over 16yrs MCA over 18 DoLS) who
lack capacity.
• “Best interests decisions” are only made in
the absence of capacitous consent or
refusal.
• Mental capacity is specific to the decision
that has to be made
NHS North Yorkshire and York
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MCA continued
• S.2 A person lacks capacity in relation to a
matter if…*unable to make a
decision…because of an impairment of or
disturbance in the functioning of the mind
or brain.
NHS North Yorkshire and York
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S.3
*unable to-
-Understand information
relevant to the decision
-retain that information
-use the information in the decision making
process
-communicate the decision
NHS North Yorkshire and York
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Physical Treatment Under the MHA
The Act includes treatment of physical
health problems only to the extent that
such treatment is part of, or ancillary to,
treatment for mental disorder (eg – treating
wounds self-inflicted as a result of mental
disorder).
Otherwise, the Act does not regulate
medical treatment for physical health
problems.
MHA Code, paragraph 23.4
NHS North Yorkshire and York
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Physical Treatment Under the MCA
• If the patient lacks the capacity to consent
to the particular treatment proposed:• - Check records for Welfare LPA
• - Is there an ADRT
• If there is no authority to refuse the
treatment a best interests decision is
made by the person proposing the
treatment.
NHS North Yorkshire and York
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Best Interests
The Mental Capacity Act (s4) clarifies best
interests decision making:
• Section 5 clarifies common law decision making
and acts which are undertaken in connection
with care and treatment
• Section 6 sets limits to section 5 acts particularly
in the area of restraint, as well as clarifying the
priority given to Lasting Power of Attorney.
NHS North Yorkshire and York
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Treatment not permitted under the
MCA
• Treatment to which section 57 MHA applies, that is:
treatment requiring consent and a second opinion
• ECT to a detained patient
• What about ECT for incapacitous informal patients?
• Treatment for mental disorder to a detained (MHA)
patient
• Treatment to a SCT patient whilst in the community.
NHS North Yorkshire and York
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MHA - Capacity and Consent
• MHA Code, 23.27-23.36
• For patients over 16, capacity assessed as per MCA
• For patients under 16, competence assessed as per the
‘Gillick’ (or ‘Fraser’) rules
• “Competence means that the child has sufficient
understanding and intelligence to enable them to fully
understand what is involved in a proposed treatment”
maturity comes into it.
– Reference Guide, 17.17
• Even though treatment may be given compulsorily, “the
patient’s consent should still be sought before [it] is
given, wherever practicable”
– MHA Code, 23.37
NHS North Yorkshire and York
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overlap
The Mental Health Act provides a legal framework
for detention for the purpose of treating mental
disorder, using compulsion where necessary.
Treatment for physical disorder cannot be given
without consent under the Mental Health Act.
However a patient may be detained for the
assessment and or treatment of their mental
disorder and if, and only if, the patient lacks
capacity to decide on physical treatment a best
interests decision may be made under the
Mental Capacity Act 2005
NHS North Yorkshire and York
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Treatment overlap
MHA Part IV
MHA
DoL
MCA
Detention overlap –
Eligibility.
With the Kind Permission of Neil
Allen, Thirty Nine Essex Street
Chambers
NHS North Yorkshire and York
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Which Act to use?
You cannot pick and choose between the
MHA and MCA.
If the Mental Health Act could be used it
should be used.
The Mental Health Act has primacy.
This is underlined in GJ v The Foundation
Trust
NHS North Yorkshire and York
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However..
• if the patient does not meet the threshold
criteria in s2 and or s3 (see slide 5) of the
Mental Health Act, and the nature of the
restrictions on their liberty which are
necessary to provide care amount to a
deprivation of liberty, an application for
DoLS should be made.
NHS North Yorkshire and York
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DoLS: What are the Deprivation
of Liberty Safeguards
• The safeguards (inserted into the MCA)
provide legal protection through the use of
prescribed procedures for people who lack
capacity and for whom deprivation of
liberty in a hospital or care home may be
necessary and, for whom the Mental
Health Act would not be appropriate.
NHS North Yorkshire and York
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The outline procedure for authorising
detention under (MCA) DoLS
Managing Authority (hospital/care home)
identifies a potential Deprivation of Liberty
applies for authorised deprivation of liberty to the
Supervisory Body (Primary Care Trust / Local Authority).
The supervisory body arranges the following assessments:
Age, Mental Health, Mental Capacity, Best interest,
Eligibility, No refusals.
Authorisation may be granted for up to one year
NHS North Yorkshire and York
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DoLS Assessors
• Mental Health Assessor – a registered
medical practitioner who has undertaken
additional training for the role.
• Best Interest Assessor (BIA) – a health or
social care professional who has
undertaken additional training for the role.
• CPD requirements – annual refresher.
Outline procedures for admitting to
the Mental Health Act
Two registered medical practitioners (one of whom is
approved under section 12(2) examine the patient. May
make a medical recommendation(s) for detention under
s.2 or s.3.
An Approved Mental Health Professional assesses the
patient and consults with their nearest relative and, may
make an application (for detention) founded on the medical
recommendation(s).
The application (pink section papers) are received on
behalf of the hospital managers
(Trust Board)
The patient and their nearest relative are informed of their
rights.
NHS North Yorkshire and York
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Section 12 MHA
• Specifies the requirements that apply to
medical reccomendations
• Subsection (2) provides for the Secretary
of State to approve doctors who have
special experience in the diagnosis and
treatment of mental disorder.
• Approval delegated to Strategic Health
Authorities (NCB post April 2013)
NHS North Yorkshire and York
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