Lack of shared understanding of Mental Health Act-MCA interface leading to unlawful detentions, says report

King’s Fund research finds practitioners tend to make decisions about which legislation to use based on their particular professional role and training

Social worker assessing older woman
Photo: iStock

People are being unlawfully deprived of their liberty because professionals lack a common understanding about whether to use the Mental Capacity Act or Mental Health Act to do so, a report has found.

The government-research by the King’s Fund found professionals tended to make decisions about which piece of legislation to use based on their particular professional role and training and raised concerns about the use of ‘blanket rules’ which did not consider the individual case.

Respondents also said the codes of practice for the two acts and relevant case law were difficult to understand and keep up to date with.

The MHA-MCA interface

The Mental Health Act 1983 (MHA) and the Mental Capacity Act 2005 (MCA) both provide a legal means to admit people to hospital and deprive them of liberty.

A key interface arises where an individual with a mental disorder lacks the capacity to decide whether to be admitted to hospital to receive care and treatment and they are not objecting to admission or treatment. Then, a practitioner may need to consider whether that person should be detained under the MHA or instead made subject to a Deprivation of Liberty Safeguards (DoLS) or Court of Protection order.

Community Care Inform Adults users can get further guidance by reading our guide to the interface.

Lack of common understanding

The study was based on an online survey of approved mental health professionals (AMHPs), best interests assessors (BIAs), section 12 doctors, who are approved to authorise detention under the MHA, and approved clinicians, who are responsible for the care of patients subject to the MHA.

It found a lack of a common understanding around fundamental factors that influenced how decisions are made, including the key concepts of capacity and objection.

Survey respondents shared examples of professionals saying that capacity was either present or absent in a person, rather than decision or time specific, a lack of capacity being conflated with lack of insight and practitioners believing, wrongly, that the MHA could not be used if the person were not objecting.

Professional role affecting decision-making

The research also found that people’s professional role had an impact on which route they typically took when assessing someone who lacked capacity to be admitted to hospital for assessment or treatment, and who was not objecting to admission or treatment.

Of those surveyed, 42% reported taking the route of the MHA, 42% reported taking either and 16% reported taking the MCA-DoLS route.

Section 12 approved doctors, approved clinicians and AMHPs were more likely to report taking the MHA route or either, whereas BIAs were more likely to report taking the route of the MCA or either.

“This demonstrates that, in practice, practitioners do not approach this decision from a position in which the two Acts are considered on an equal basis,” the report said. “This may in part reflect that professions are most likely to make these decisions in relation to their area of training.”

The study also uncovered fundamental differences in the way each act was conceived by professionals. The MCA was seen as having fewer safeguards, for example, because the DoLS could authorise care or treatment for 12 months, but was seen as better at protecting people’s autonomy.

By contrast, the MHA was seen as inherently restrictive, undermining the basis of decision-making at the interface, which is designed to be based on the least restrictive option.

Blanket rules ‘most concerning’

The research also highlighted how practitioners applied blanket rules when making decisions at the interface, which it said was “most concerning”.

One interviewee shared a reluctance by AMHPs to use the MHA within an acute trust due to concerns about it being able to provide appropriate treatment.

The report found participants opted for practical solutions, such as choosing legislation that avoided the risk of multiple assessments, delays in access to care, or not having a legal framework in place for care – at the expense of considering the ‘least restrictive’ approach.

“This is perhaps most concerning in relation to how this decision is made in practice, because by nature of a blanket rule, there is no decision.”

“The differences in how these blanket rules apply introduces a level of variation such that the rights accorded to people admitted and treated in some settings and areas of England may not be afforded to those in other settings and areas,” the report added.

MHA reform

The report comes with the government consulting on a White Paper to reform the MHA, and ahead of the implementation next year of the Liberty Protection Safeguards to govern deprivations of liberty under the MCA.

The Independent Review of the Mental Health Act, which reported in 2018, proposed that all patients without the relevant capacity who did not object to care and treatment should be treated under the DoLS/LPS and not under the MHA.

The government is seeking views on this through the White Paper consultation but will assess the impact of the implementation of LPS next year before making changes to the interface.

In response to the report, Steve Chamberlain, chair of the AMHP leads network, said: “I’ve got no doubt that on the veracity of what they’re saying around people decide based on their profession and what they’re most comfortable with rather than based on the individual circumstances they come up with, or, alternatively what’s available.”

He added: “With DoLS, local authorities have huge backlogs, so if you go down that route people are saying well they’re not going to be seen for another six months anyway, even if they thought DoLS was adequate.”

‘Need to reduce confusion’

He said the report highlighted the need to try and make decision-making at the MHA and MCA-DoLS interface as straightforward as possible, or at least reduce the confusion.

“Whilst we’ve got two bits of legislation and they’re bound to bump into each other, the answer is to reduce the confusion at the interface and make it as clear as possible, as well as updating the codes of practice which are very old now.

“The review team themselves said the ideal long-term solution is what’s called ‘fusion legislation’, so just one piece of legislation covering the MHA and MCA but they acknowledged it’s a really big deal and its unlikely to happen,” he said.

About the research  

The King’s Fund designed a mixed-methods study with an online survey to capture the diversity of factors that influence decision-making across clinical groups and qualitative interviews with clinicians and professionals to explore in depth their understanding of the interface and experiences of making this decision in practice.

Data was collected between 7 March and 1 April 2020. In total, 634 people completed the survey, with 482 people completing all quantitative components of the questionnaire.

Section 12 approved doctors and approved clinicians made up the largest groups of participants although there was significant overlap in these, with 66% of s12 approved doctors also recording their role as an approved clinician. Similarly, 48 per cent of AMHPs additionally recorded their role as a BIA.

18 Responses to Lack of shared understanding of Mental Health Act-MCA interface leading to unlawful detentions, says report

  1. Terry McClatchey February 22, 2021 at 1:47 pm #

    A key difference is that in the MHA system, people have access to the Tribunal system for (reasonably) quick access to judicial review. Even in LPS, there is no tribunal before Court of Protection and this will inevitably place more pressure on AMCPs than AMHAs.

  2. A Man Called Horse February 22, 2021 at 3:23 pm #

    This is what happens when you make legislation far too complex for mortals to understand. There has been a trend in recent years to expect Social workers to have the forensic knowledge of the law professions. They are right about one thing it is impossible to keep up with the government who keep changing the law and expecting social workers to keep up. The result is clear, confusion and lack of clarity.

    • Terry McClatchey February 23, 2021 at 12:12 am #

      The average AMHP (mostly social workers) knows a great deal more about mental health law than the average solicitor or barrister. The are of course a small number of legal professionals who can provide specialist advice in complex MHA and MCA cases.

      • Sue February 23, 2021 at 11:01 am #

        Wrong and almost delusional about the legal expertise of 99.9% of AMHP’s Terry McClatchey. But then humility and insight have never been a strong point for AMHP’s in my experience.

      • Anonymous March 8, 2021 at 1:08 pm #

        Given the claim of so much legal literacy amongst ( mostly part time) social worker AMHPs it’s amazing that they haven’t noticed or EVER spoken up about contrivance of the MCA in de facto policies to deal with shortages by unlawfully removing ppl from their homes.

        After all it’s what EDT and AMHP teams are telling first responders to do when they refuse or delay coming out I every MH Trust area we are aware of.

        Or how about the repulsive violence when held in the ED under the MCA on advice of the AMHP not yet arrived. . By security guards. Allocated instead of nursing staff in most EDs.

        They not aware of the case law? They going to claim with all this expert legal knowledge they don’t know this is mostly unlawful ? Let alone the ethics or morals of such violent protectionist actions.

        If you are going to claim such high levels of legal expertise as a profession then you don’t also get to claim AMHPs are unaware of abuse of legal process. Especially when the de facto policy is largely steered by them.

  3. Annie Cranford February 22, 2021 at 6:39 pm #

    Yet more evidence that when it comes to the law social workers in all disciplines have a throwaway attitude to legislation. Social workers can’t big themselves up as advocates and civil liberties champions while not utilising the right legislation. If social workers act on the basis of available resources not legal and professional standards, then they cannot claim to have unique skills and specialised knowledge. About time we called out inadequate training and timidity in social workers. Admit your shortcomings so you can become competent. It shouldn’t take the Kings Fund and doctors to tell you how to.

    • Jason M March 1, 2021 at 9:10 am #

      The report did NOT say SWs were acting on the basis of available resources. i agree with the calling out, and I have come across poor knowledge, certainly, but this was not a conclusion of the report about unlawful detention. DoLS Teams all over the country are not assessing to the legal timescales – that is leading to unlawful detention. A poor situation, but not one frontline staff are responsible for.

  4. Nigel February 23, 2021 at 8:19 am #

    Every day I eavesdrop discussions between AMHP’s . Every day the conversation starts with why the referral is inappropriate, why the identified risk is below concern, why it should be rejected. There then ensues a row with the referrer and further discussions, usually among the lines that others don’t know what they are doing. Never have I overheard whether the MCA is perhaps more appropriate. AMHP’s naturally do what feels comfortable but also act according to their training as they should. The most dispiriting aspect of sharing a space with AMHP’s is their deference to doctors. It may be peculiar to the London authority I work in but other than telling each other how independent and autonomous they are, AMPH’s rarely have a discussion that doesn’t include “is there a bed?” Resource led practice is hardly going to be holistic and weigh which of legislation, if any, is the more appropriate, if admission is the first consideration. Perhaps AMHP’s could stop thinking they are lawyers and psychiatrists as well as social workers. That might save them from unnecessary complexity.

    • Berni February 23, 2021 at 4:20 pm #

      Succinct and to the point , would agree . I had a chance to see the potential selection of AMHPs and how the process of training was completed and also the reaction to how competent AMHPs are from the very psychiatrists who may be requiring a decision from an AMHP.

      To be fair to most of us though we do not get time to train properly and also if you do want to take psychiatrists of adult social care to task there are few authorities willing to put up with people actually wanting to do their job , be impartial and also knowledgeable of both areas , social care , debt , substance misuse , LD , PD and on and on .

      Just wonder what students get taught . I always thought being a social worker , AMHP , or BIA was political and we are here to advocate for the impoverished the vulnerable the disabled in an unequal world and should always use the least amount of power against people seeking help and the maximum amount of power against unequal hierarchal institutions who may un consciously follow what the cost of equality is .

      Yes I know I am out of date , by the time I have completed this input the law or what’s left of it from the does it really matter anymore Act is probably being re written . Still wont stop me getting up tomorrow and carry on .

      • Anonymous March 8, 2021 at 1:27 pm #

        Can honestly say as someone dragged off to dangerous abusive violent MH settings on recommendations of AMHPs neither I nor a single family member or friend think they are there as an impartial professionals.

        In this London Trust the wholly p/ t AMHP service jumps to the s12 doctor’s tune. There is NO least restrictive option EVER considered if there is a bed. Dr says no.

        If no bed they simply just don’t turn up and the warrant expires in the community.

        And if we die they may get a vague paragraph mention in the local authority safeguarding investigation if that.

        This is a job with no accountability. But massive power . NOTHING person centred about the role. Let alone a rights based approach. God knows what it has to do with social work.

        But what would we know……

  5. Simon February 24, 2021 at 11:32 am #

    Today I heard an AMHP ask for the contact details of the Trust Solicitors so he could “just confirm” who the Nearest Relative was. A great example of expertise there Terry.

  6. Simon March 3, 2021 at 12:12 pm #

    I am confused Jason M. DoLS team are not assessing within legal time frames but it’s not something frontline staff are responsible for? Who are doing the assessment out of time then?

    • Alex March 4, 2021 at 1:00 pm #

      The issue is largely a shortage of BIAs to manage the huge number of DoLS requests most local authorities receive. The BIAs (within my service at least) are largely completing assessments on time, there simply aren’t enough of them, leading to the aforementioned backlog.

  7. Simon March 4, 2021 at 5:10 pm #

    So there has to be resource issues otherwise assessments would be completed on time and there would be no backlog.

  8. Nigel March 5, 2021 at 8:52 am #

    “Reluctance” to use MHA because of concerns over availability of appropriate treatment counts as resource led decision making surely? Opting for a “practical” solution to avoid delays to acess to care suggests resource led decision making doesn’t it? Why not just be honest and acknowledge we are forced to act pragmatically because of resource and care constrains? Nothing changes and users of care and health services receive inappropriate professional interventions if we get defensive about our and others practice choices. None of us seek to act illegally but most of us know that our thinking from the point of referral onwards is consumed by whether beds or alternative care is available. In my experience organising the assessment, MCA or MHA, becomes the focus once a referral is accepted and all other considerations are subsumed under that pressure. It may be that I am an incompetent AMHP but I suspect not many social workers let alone AMHPs can claim availability of resources don’t play a part in their work.

  9. Anonymous March 8, 2021 at 1:29 pm #

    Thank you for your honesty

  10. Peter Edwards March 11, 2021 at 6:29 am #

    DoLs is unlawful.
    The fundamental point is that with the current state of play with DoLs, if faced with a choice, MHA or DoLs, it would be unlawful to use the DoLs. In the case of AM v (1) South London & Maudsley NHS Foundation Trust and (2) The S of S for Health [2013] UKUT Mr Justice Charles made it quite clear that when faced with a choice between the two, the decision maker must chose the ‘least restrictive’. If DoLs is applied for, but no standard authorisation is in place, a person has no right o appeal. How could that ever be less restrictive that the MHA? Perhaps avoiding the costs of s.117 is a factor?
    Peter Edwards Solicitor

  11. Anonymous March 18, 2021 at 6:48 am #

    I have never been so aware of the tidal wave of negative feeling towards AMHPs before!