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Peter Edwards

Solicitor and Director

Friday, November 1st, 2013

Lessons in Mental Health Law & Incapacity law

Peter Edwards, Solicitor and Director

In my experience there are many legal misconceptions around Mental Health Law and mental capacity nursing. Do you know what the legal requirements on you are? Are you able to protect your professional practice by demonstrably following Mental Health Law and the codes of practice? I set out below a number of areas of professional vulnerability:

Next of kin

Why do you ask a person who is their ‘next of kin’? What powers do you then invest in the next of kin if you judge the patient lacks mental capacity? In fact, next of kin have no powers in law.

Duty of care

What does ‘duty of care’ really mean? It does not mean a duty to care. It does not give you the right to make decisions just because you believe you have a ‘duty’ to do so.

Best interests

When you make a ‘best interests’ decision, have you assessed the patient’s capacity or are you acting unlawfully? Best interests decisions can only be made against a person’s wishes if you have assessed that they lack mental capacity. In the absence of such assessment, section 1 of the Mental Capacity Act (MCA) assumes that a person has capacity unless it is assessed by the decision maker (below) that they do not. You are professionally vulnerable if you carry out a decision which may, on the face of it, be in a person’s best interests but they have not been assessed as lacking capacity which is time and decision specific.

The decision maker

The ‘decision maker’ under the MCA is the person responsible for the outcome of that particular decision not necessarily the doctor in charge of the case. You must also keep notes of your reasoning.

Deprived of liberty

Have you ever nursed anyone who is ‘deprived of their liberty’ even though the proper procedures have not been followed? This is against the law. I am sure that you have never said to an informal patient words to the effect ‘If you insist on going home you will be sectioned’?

An elderly person is admitted from their own home where they live alone. They have developed UTI. Their family believe they should not go home when better but should be discharged to a care home. The patient wants to go home. If they have capacity it is up to them. (Third principle section 1 MCA). If the patient lacks capacity, the family is not the decision maker. What is more, the move could amount to a deprivation of liberty. Does anyone respect the rights of the vulnerable person and obtain an authorisation under the deprivation of liberty safeguards?

Mental Health Law and Incapacity Law is simple – it is people and systems that make it complex.