I am an AMHP and i hate to admit it but i still don't quite undestand when to use the MCA. Could anyone give examples of when they've decided to use one act over the other? Many thanks
surely it isn't the case of one over the other? presumably it is to use them in conjunction with other?
The mental health act 1983 sets out the legislation regarding mental health: the professional status given to those who are mental health practictioners, nearest relative rules, the layers and rules of compulsary admissions for assessment and treatment, guardianship and consent to treatment etc. It basically sets out the hard and fast rules of working with people experiencing mental disorder. This is usually used when the person is a risk to themselves or others.
The mental capacity act however is a bit more 'fluffy' and fluid and does not necessarily relate to people experiencing mental disorder, for example if a person is unconcious or ill. Just because a person has a mental health problem does not mean they lack the capacity to choose what they want for their lunch or how to spend their money or if or not they wish to have a bath. The mental capacity act is used when people are unable to make those decisions for whatever reason and as such they have to be made on their behalf. The person does not necessarily have to be at risk, just incapable of making informed choices about their care and wellbeing.
I suppose there is some overlap of the DOLs guidelines in the MCA with some of the sections in the MHA, but again, DOLs can be used in conjunction with these rather than it being one or the other.
Basically the MCA fills in the holes that the MHA doesnt fill.
Examples:
Capacity...
A person with a diagnosed mental health condition refuses or for whatever reason does not take their medication putting themselves or others at risk. The person is detained under a section of the mental health act so that professionals have the legal standing to enforce treatment upon that person. The person may or may not have the capacity to make the decisions they are making but it has been determined that it is vital they are treated whatever the circumstances (think anorexia for example).
A person with a diagnosed mental health condition no longer has the mental capacity to understand or agree to a medication routine or the process of the assessment, (i.e, they are in a coma or in the later stages of the dementia). They need to continue to be treated for their condition but they do not have the cognitive thought processes available to them to understand this or consent to any treatment. A best interests assessment is held to determine what course of action to take that is in the person's best interests, as well as making sure it is something they would have agreed to if they did have the capacity to make that decision.
Deprivation of Liberty...
A person is found wandering the street partially undressed in the middle of the night very confused, the person has a diagnosed mental health condition. They resist the attempts of professionals to go to a place of safety and accept the treatment it is thought they need. Therefore they are detained under a section of the mental health act for assessment and treatment.
A person is found wandering the street partially undressed in the middle of the night very confused, the person has a diagnosed mental health condition. When professionals respond they go with them to a place of safety and accept the treatment they are given, but clearly have no understanding of events. When the same happens the next night it is decided to lock them in to their accommodation at night for their own safety. The DOLS guidelines are followed and it is decided that this is a justified deprivation of this persons liberty.
Thats the best I could come up with after a day at work. Sorry
But basically the MHA is a formal set of procedures to use in acute mental health situations, the MCA more a way of ensuring that people's best interests and wishes are taken into account when making decisions about their care when it is deemed they no longer lack the capacity to make some or all of these decisions themselves.
that's great info thanks!
another question though. what about people who have a mental disorder, lets say schizophrenia. they become unwell and need to return to hosptial for treatment. a mental health act assessment is convened and the person agrees to come to hospital. they lack capacity to make this decision however. would it be appropriate to bring them to hospital and use the MCA as the basis of that decision? previously, an incapacitous person who was agreeing to come to hospital needed the safeguards of the MHA
juli05:previously, an incapacitous person who was agreeing to come to hospital needed the safeguards of the MHA
well yes that is still the case as long as the reason you are compelled to admit someone for treatment with or without their permission is a result of their mental health condition. The requirements of the mental health act are still in place.
Why have you determined in this situation that person lacks the capacity to make this decision when they are in fact making a decision to go to hospital informed by your recommendation? Even if this person perhaps does lack the capacity to make this decision they are agreeable to the course of action (therefore they are not being detained against their will) and the course of action being taken is undoubtably within their best interests and therefore satisfies the reccommendations of the mental capacity act.
As I touched upon before, the Mental Health Act instructs the formal processes of Mental Health Care - detaining etc, the Mental Capacity Act deals more with the human rights side of things - best interests and liberty decisions, sometimes as a follow on or precursor to decisions that are made under the MHA (e.g. detaining someone under the mental health act and then ensuring under the MCA DOLs framework that this continues to be a justified intervention).
It is not a case of either or but of the MCA complimenting the MHA. I would say the mental health act covers most of what the mental capacity act also does but does so as part of a formal framework. The mental capacity act provides a more 'informal' framework for those who may lack the capacity to make some or all decisions but do not fall within the remit of need under the mental health act.
Just as an add on considering your confusion in the matter - I would be asking for additional training in this matter from your employer.
I am not an AMHP, I work in a generic older adults team. It concerns me that as an AMHP you are struggling with the ins and outs of the two acts, even be it through no fault of your own.
If training is not forthcoming The Mental Capacity Act - Codes of Practice is a useful tool. I would particularly suggest in relation to your initial question Chapter 13 What is the relationship between the mental capacity act and the mental health act
hope that helps
Interesting discussion here, as an AMHP and BIA I am dealing with such an issue as we speak. Just spoke to the consultant who referred the gentleman for a DOLS, he has dementia, is complaint with meds but wanting to leave the psychiatric hospital and she (consultant ) felt DOLS was less restrictive, however I have e-mailed her the legal updates that back my view that a Mental Health Act assessment is the way to go, based on his disorder not being physical, its a mental disorder, he is in a psychiatric hospital and the issue about being detained forms part of his treatment (the one he is not agreeing to regardless of his capacity in that single respect).