PRACTITIONERS FORUM – MENTAL CAPACITY ACT
Brief synopsis of the Questions and Answers Session
Please note this is a brief record of the questions/answers.
Anyone uncertain as to how to handle a particular situation should seek
advice from their manager/safeguarding lead within their own
organisation and, where appropriate, consider contacting e.g. legal
advisors and/or the Court of Protection. Where a crime may have been
committed – consider contacting the Police. In an emergency, contact
the emergency services.
For more information, including how to raise a safeguarding alert, you
can go onto the Birmingham Safeguarding Adults Board website which
hosts the Safeguarding Adults multi-agency policy, procedure and local
practice guidance together with other sources of information and
resources: www.bsab.org
Q1 In relation to advanced
directives/decisions, if someone has
mental health problems that cause
them to be sectioned, do we set aside
the advanced directive/decision
therefore it wouldn’t apply?
Yes if someone is sectioned under the
Mental Health Act (MHA) and the
advance decision relates in all or part
to the mental health problem then the
MHA overrides the Advanced Decision
Q2 A health visitor raised a query re a
client who has just had a baby and was
concerned about her 17 year old son.
The police were called and they
referred him to a project and his
mother was advised to refer him to the
GP re his mental health. As her son
would not go to the GP she went to
see the GP but the GP would not
assess him without seeing him at the
surgery. What happens if the GP
refuses to go to the home? There is a
lot of drug abuse in the area where
they live.
A GP has the right IN CERTAIN
CIRCUMSTANCES to refuse to visit
patients at home.
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Dr Drever advised that he prefers to
see young men with possible mental
health issues without their mothers as
sometimes the relationship with their
mother is part of the problem and they
are more likely to be disaffected and
angry rather than mentally ill. If there
are mental health concerns he should
be referred.
Q3 A dietician working in the community
raised an issue about the dilemma
of when to feed or not to feed nasal
gastrically. There have been two
incidents, one patient with a nasal
bridal loop and another patient who
was discharged with mittens.
Do I need to complete a DoLS
assessment? Both patients have
now been discharged from hospital.
The DoLS process does not apply to people
living in their own home, only to those in a
hospital or care home setting. You should
ensure you act in line with the MCA and the
principles in the Act: assess and record
capacity, then act in best interests if patient
does not have capacity. Record how you
have reached your decision. Consider any
relevant guidance and work in line with
organisational policy. Your organisation
should have a policy and capacity
tools/paperwork you can access.
You need to speak to someone in your
organisation for advice/information.:
The A2 SCR had a recommendation around
supervision and the questioner was asked
about their own line manager and teams etc
as source of support/information.
Q4 A Clinical Case Manager asked a
question in relation to a patient who
has been assessed and deemed to
have capacity but tends to refuse
care.
He has family/carers and they will
also look after his money. He had
about £4k saved for his funeral but
when he received his statement it
seemed quite a lot of money is
missing. The police were involved
and a social worker went out to
assess him and he was deemed to
have capacity. The patient did not
want to press charges against his
children so the questioner asked
what they could do in such
circumstances.
If the person has been assessed to have
capacity in relation to financial decisions then
under the MCA he has the right to make an
unwise decision Consider if the capacity
assessment was sufficiently detailed to
demonstrate his understanding, retention,
weighing up and that he had been able to
feed back his decision. Finally even if the
person does not agree to any action been
taken, the police can still pursue the issue
which could in turn lead to a prosecution.
It’s important to recognise that the MCA is
not a tool to be used by us as professionals
to get our own way. If someone has capacity
they have the right to make what we might
think are unwise decisions. In these
circumstances, as professionals we have to
show we have tried to support patient,
discussed implications of their choices,
explored alternatives, worked with other
agencies toward a solution, but ultimately it
may be patient choice.
Issue of inherent jurisdiction was raised by
audience member and possibility of action
being taken even where an adult at risk does
not want to make a complaint. Panel agreed
that where very serious concerns are
apparent this may be an option. Seeking
legal advice should be considered.
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Q5 My background is in mental health.
What would happen in a court of law
if something were to happen to that
person (see question 4 above)
because they have been deemed to
have had capacity?
Audience comment: we must not forget the
issue of coercion. Being unduly influenced to
make a decision.
Q6 A social worker in a mental health
team commented that through their
work they have been involved with a
service user and have noticed a
difference in attitude from the police.
This person is being financially
abused by their friend which is a
long term situation. By working with
the police they have now
encouraged this person to make a
statement. I have found the police
very helpful in this case.
This is good to know. Serious Case Reviews
by their nature focus on times when things
have gone wrong. But there are more often
times when we work together successfully as
agencies.
Q7 A community psychiatric nurse
commented, I was wondering who
actually holds the MCA capacity
assessment once the decision has
been made, how long does a
capacity assessment last for? Some
clients are very plausible so would
agree for a week but would then
revert. Am I to constantly make a
mental capacity assessment? I am
concerned that if this case went to
court they would ask where the
Mental Capacity Assessment was.
It is the decision maker who has
responsibility for assessing and acting in best
interests. If the issue is around non
concordance, as practitioners frequently
encounter in mental health, then the person
may lack the mental capacity due to lack of
insight into their condition to agree to all or
part of their treatment. Then practitioners
can proceed to give medication in their best
interests and this is documented in their care
plan . The MCA allows for some treatment of
mental disorder where a person does not
meet the criteria for the MHA or are not
subject to supervised / aftercare under 117
which can involve treatment. Where the
persons condition changes then a reassessment will be required.
Panel added: this is about professional
accountability. Considering a range of
options, and multi-agency working: share
perspectives, share the risk, demonstrate
collectively that we have thought through the
issues and tried to find a way forward.
Pointed to the recent guidance from BSAB
about self-neglect and failure to engage with
services which is helpful.
Capacity often fluctuates. Professionals
should continually be assessing and looking
at the decision to see if that person has the
capacity to be making that decision. This
reinforces that the MCA has to be part of our
everyday practice, fundamental to how we
work, not a standalone thing.
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Q8 There isn’t anything in the Act that
tells you to make sure they are
taking their medication.
Statement from a member of the audience.
Q9 This was a reminder re using the
Office of Public Guardian. Lasting
Power of Attorney can be put in
place by an individual whilst they
have mental capacity to support
decision making if they should lose
it. My understanding is that the
Court of Protection (COP) can make
a decision regarding someone’s
deprivation and so on at home. The
helpline for the COP is open 24/7.
They can make a decision over the
phone. An interim decision can
save money and litigation.
Panel reinforced that Court of Protection is
an option but as a general point, staff should
in the first instance seek advice within their
own organisation, including legal advice if
required.
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