Phil Fennell Presentation

The Interface between the MHA, the MCA, and the common law

Phil FennellProfessor of Law

Cardiff Law School

The Mental Capacity Act 2005: Principles

• (1) Capacity is presumed unless incapacity is established by those alleging it.

• Section 3 Incapacity test inability by reason of mental disability to

• understand and retain information relevant to the decision,

• use or weigh the information as part of the process of arriving at a decision (including inability to believe the information), or

• communicate his decision by any means.


• (2) All reasonable steps must be taken to help a person to make the relevant decision (Re AK (Adult Patient: Medical Treatment) [2001] 1 FLR 129).


• (3) A person is not to be treated as unable to make a decision merely because the decision is unwise (Re T (Adult Refusal of Treatment) [1992] 3 WLR 782).


• (4) Acts done for people who lack capacity must be in their best interests (In Re F (Mental Patient : Sterilisation) [1990] 2 AC 1). The balance sheet approach.

Best interests

• Take into account the person’s past and present wishes and feelings, his beliefs and values which might be likely to influence his decision, and any other factors which he would be likely to consider if able to do so. If practicable and appropriate the decision maker must consider the views of anyone named by the person to be consulted, any carer or person interested in his welfare, any donee of a lasting power of attorney granted by the person, and any deputy appointed by the Court of Protection.

Best Interests

• Wishes and feelings of the patient expressed when capable must be considered by decision makers in determining what is in the patient’s best interests (Mental Capacity Act 2005, s 4(6)) as must the views of any person nominated by the patient to be consulted (s 4(7)).


• (5) Regard must be had before any act is done, to whether it is the least restrictive way of achieving its necessary purpose, in other words, to the European Convention principle of proportionality (Re ZK (2000)).

Mental Capacity Act 2005

• Revamped Court of Protection ss 45-46.• Declarations s 15• Advance decisions ss 24-26.• Lasting Powers of Attorney ss 11-14 and ss 22-23.• Power of Court of Protection to make decisions

and appoint Deputies ss 16 – 20.• Independent Mental Capacity Advocates ss 35-41.

Personal Welfare Decisions

• Both deputies and donees of lasting powers of attorney can make decisions about personal welfare, including consenting to treatment. A decision refusing life sustaining treatment may only be made by the donee of a lasting power of attorney if it has been specifically granted by the donor of the power (s 11(7)-(8)). Such a decision may not be made by a court appointed deputy (s 20(5)).

Interface

• Sections 5, 6, 28, 35.• Sections 5 and 6 of the 2005 Act provide a general

defence to acts of care and treatment, which may involve restraint and restriction of liberty of a mentally incapacitated person. Codifying the common law.

• When should ss. 5 and 6 or equivalents be used, and when should the the compulsory powers under the MHA 1983 be used.

• Government keen on flexibility.

Similarities and Contrasts

• Both have threshold criteria of mental disorder – • impairment of or disturbance in the functioning of

mind or brain MCA s 2, • mental illness, psychopathic disorder, arrested or

incomplete development of mind and any other disorder or disability of mind MHA s 1.

• MCA where person lacks capacity – confers retrospective defence.

• MHA on basis of risk to self or to others – uses procedures.

Acts in Connection with Care and Treatment

• Medical and dental treatment• Diagnosis and tests, physiotherapy, chiropody• Surgical Treatment• Taking of blood or body samples• Nursing care. • Emergency procedures CPR• Surgery • Draft Code 5.8

The Section 5 Criteria

(1) D takes reasonable steps to establish whether P lacks capacity in relation to the matter;

(2) D reasonably believes that P lacks capacity in relation to the matter

(3) D reasonably believes that it will be in P’s best interests for the act to be done.

Restraint

• Restraint only permitted if the conditions in s 6 are met.

• Defined in s 6 (4) as using or threatening to use force to do an act which the person resists

• Restricts the liberty of movement of a person who lacks capacity whether or not the person resists

Restraint under section 6

• The first condition is that D reasonably believes that the act is necessary to prevent harm to P.

• The second condition is that the act is a proportionate response both to the likelihood of P’s suffering harm, and the seriousness of that harm. Restraint means the use or threat of force to secure the doing of an act which P resists, or the placing of any restriction of P’s liberty of movement, whether or not P resists.

The Draft Code of Practice on the Bill

• The Draft Code of Practice on the Bill told us that ‘Restraint may take many forms. It may be both verbal and physical and may vary from shouting threats at someone, to holding them down, to locking them in a room.’ Can also include chemical restraint, for example giving someone a large amount of sleeping pills in order to sedate them and thereby restrict their liberty of movement.’ (para 5.28)

The Draft Code on the Act

• Simply says that any threat of force or use of actual force or violence will not attract protection unless the section 6 criteria are met para. 5.39.

• Code examples • an elderly man with dementia needing to be

restrained whilst blood tests are taken. Para 5.41• A young man with a learning disability needing to

be restrained by a specially designed protective arm cuff to stop him hurting himself when he bangs the wall in frustration para 5.44.

Deprivation of Liberty

• Section 6(5) says that a person does more than merely restrain a person if deprive that person of their liberty within the meaning of Article 5(1). Therefore deprivations of liberty may not be justified under ss 5 and 6.

The Interface

• Mental Capacity Act s. 28 precludes giving treatment for mental disorder under any of MCA’s provisions, ‘if at the time when it is proposed to treat the patient, his treatment is regulated by Part lV of the 1983 Act.’ In other words, the Mental Capacity Act will not apply if the patient is liable to be detained under one of the longer term detention powers in the Mental Health Act.

What treatments are ‘regulated’ by Part lV?

• Section 57 psychosurgery and hormone implants

• Section 58 ECT and medicines for mental disorder

• Section 62 emergency treatment• Section 63 any other treatment for mental

disorder may be given without consent if given by or under the direction of the RMO.

Effect of Section 28

The 1983 Act should be invoked in respect of a mentally incapacitated person who needs to be hospitalised for treatment for mental disorder in two circumstances (assuming the criteria for compulsion are met):

1. Where it is considered that the provisions of a valid and applicable advance decision refusing a particular treatment for the patient’s mental disorder should be overridden; or

2. Where there is a deprivation of liberty

Valid Advance Directive/Decision

Advance directive/decision refusing treatment for mental disorder governed by the Part lV procedures will not be binding if the patient is detained and treatment is authorised under Part lVNote however, a valid advance directive/decision in relation to physical treatment will remain binding, as Part lV only applies to treatment for mental disorder. (See Draft Code paras. 8.33-8.44)

Advance Decisions

• A distinction must be made between advance directives (common law) and advance decisions (Mental Capacity Act 2005, ss 24 - 26) where treatment is being refused, and advance statements where a specific treatment is being asked for. Valid advance directives and decisions are binding, but advance statements are not.

Advance Statements

• Made by a capable person asking for specific treatment to be given in specified circumstances if the person loses mental capacity. An example of such a request is the case of R (Burke) v General Medical Council [2004] EWHC 1879 (High Court) [2005] EWCA Civ 1003 (Court of Appeal). Advance statements not binding on doctors, who must exercise their own clinical judgment about the best interests of an incapacitated patient,.

Deprivation of Liberty

• HL v United Kingdom 5 October 2004 para 89. Complete and effective control over residence, assessment, treatment, movement.

• The concrete situation was that HL was under continuous supervision and control and was not free to leave.

What to do if there is a deprivation of liberty

• If it is not possible to provide care for a person lacking capacity without subjecting them to control of a degree or intensity amounting to a deprivation of liberty, then

• (a) consider detention under mental health legislation for a person who meets the criteria, or

• (b) in all other cases, make an application to the Court of Protection for an order as to what action is in the person’s best interests. (Draft Code on the Act Para 5.49)

Storck v Germany

• Para 143, that ‘Insofar as the applicant argued that she had been medically treated against her will while detained, the court reiterates that even a minor interference with the physical integrity of an individual must be regarded as an interference with the right of respect for private life if it is carried out against the individual’s will.’

HL v United Kingdom

• The right to liberty in a democratic society is too important for a person to lose the benefit of Convention protection simply because they have given themselves up to detention, especially when they are not capable of consenting to, or disagreeing with, the proposed action.

Storck v Germany

• 150. The Court … considers that on account of its obligation to secure to its citizens the right to physical and moral integrity, the state remained under a duty to exercise supervision and control over private psychiatric institutions. Positive obligation to protect the applicant against interferences with her private life as guaranteed by Article 8(1).

The Section 5 and Section 6 Defence and mental disorder

• ECT, forcible feeding, high dose medication, covert medication, Retrospective measures alone insufficient to provide appropriate protection of physical integrity of individuals in a vulnerable position like Ms Storck.

European Committee for the Prevention of Torture

• The Council of Europe has established that treatment without consent should be based on law and ‘only relate to strictly defined exceptional circumstances.’ The CPT Standards, Chapter Vl, para.41, http://www.cpt.coe.int/en/docsstandards.htm.

• Treatment without consent must therefore be based on clear grounds related to the health or safety of the patient or to the protection of others.

What treatments for mental disorder may be given under section 5 and 6?• ECT?• High dose medication BNF?• Polypharmacy?• Covert medication?• What safeguards will be needed?

Treatment for mental disorder and s 5 and 6

• Patients admitted under s 4, s 5, remanded to hospital for reports under s 35

• Place of safety patients under s 37(4), s 135 or s 136

• Patients subject to guardianship or supervised after-care or who have been conditionally discharged and not recalled to hospital Draft Code, para, 12.19

Section 37 Serious treatments

• Section 37 serious treatment• If no-one other than paid carer to consult,

responsible body must appoint an Independent Mental Capacity Advocate and submissions of advocate must be taken into account in deciding whether to provide the treatment.

• IMCA may consider seeking a second opinion• Responsible body is the NHS provider body. In the

case of people in private care, the responsible body is the NHS body funding placement (9.51).

Serious treatments

• It is likely that regulations defining serious treatments will include treatments for physical and mental conditions and are likely to include treatments with serious or irreversible consequences where:

• The balance of the expected benefit against risk and invasiveness is unclear

• Or fine balance between choice of treatments.

Section 37(4)

• Section 37 does not apply to treatments which are urgently needed to save person’s life or prevent a serious deterioration in condition.

Treatment for Mental Disorder and s 37

• Treatment which is regulated by Part lV of the Mental Health Act cannot be included in s 37 treatments. For the most part this means treatment of all types for mental disorder give to patients who have been detained under the Mental Health Act 1983

• Draft Code para. 9.30

Physical treatments and ss 5 and 6

• Sections 5 and 6 can only apply to physical disorder where the person lacks capacity.

• Example at para 5.41 of elderly man with dementia needing blood tests, or at para 12.26 of man with schizophrenia needing CT scan

Cases needing to go to Court• Treatments requiring court approval• Withholding or withdrawing ANH for patients in

PVS• Organ or bone marrow donation • Non-therapeutic sterilisation• Some termination of pregnancy cases D v a NHS

Trust [2004] 1 FLR 1110• Other cases where there is dispute about whether a

treatment is in a person’s best interests Draft Code para 7.17.

Changing Accommodation ss 38 and 39

• NHS body proposes to place a person lacking capacity in hospital for a period likely to exceed 28 days or in a care home for a period likely to exceed 8 weeks or move a person to such a placement

• Social services authority carrying out an assessment proposes to place or move a person into a care home for a period likely to exceed eight weeks

Changing Accommodation ss 38 and 39

• Duty on responsible body to appoint IMCA and consult.

• Does not apply in emergencies, and does not apply where person is to be detained or required to live in the accommodation (guardianship) under the Mental Health Act 1983.

• Responsible body is the NHS provider body. In the case of people in private care, the responsible body is the NHS body funding placement. If 1990 Act assessment then social services authority.

Guardianship

• May have a role with people lacking mental capacity.

• Provide degree of protection and additional safeguards.

• Provides explicit authority to return person to place where required to reside

• Cannot be used to justify deprivation of liberty para. 12.14.

Attorneys and Deputies

• Being subject to the Mental Health Act does not deprive patients of right to appoint a LPA as long as they have capacity to do so. Does not affect validity of existing LPA, or the authority of a court appointed deputy to make decisions on the person’s behalf.

• However exceptions Treatment under Part lV or deciding place of residence under guardianship or supervised discharge. Para 12.28.

Attorneys and Deputies

• Deputies or attorneys with relevant authority will also be able to exercise patients’ right under the MHA 1983 on their behalf. Should make themselves known to the responsible clinician, hospital managers, guardian or supervisor.

Where is the interface?• No deprivation of liberty under the MCA.• Limits on treatment for mental disorder.• Treatment of mentally incapacitated people under

common law/MCA for physical disorder• Govt response to PSC Rec 28 ‘The Mental Health

Bill will clarify the relationship between the two pieces of legislation’

Phil Fennell Presentation

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