Mental Health Act or DOLs and Mental Capacity Act?
In the case of AM v South London and Maudsley NHS Trust and Secretary of State for Health  UKUT 365, the solicitors acting on behalf of AM argued that AM should be deprived of liberty under the Mental Capacity Act 2005 (MCA) and Deprivation of Liberty safeguards (DOLs) rather than the Mental Health Act (MHA), as it was not necessary for AM to be detained in hospital under the MHA as she was a compliant incapacitated patient.
In this case Charles L J held that “Deprivation of Liberty Safeguards were intended to and do provide an alternative basis to that provided by the Mental Health Act to authorise the Deprivation of Liberty of an incapacitated person for a range of purposes including his assessment or treatment for mental or physical disorders in hospital” and on that basis, “the decision maker under the Mental Health Act has to consider whether that alternative is available and whether it should be used when he or she applies the necessity test of Mental; Health Act.”
Mental Health professionals, in particular psychiatrists and AMHPs are so used to using their powers under the Mental Health Act to detain people with mental health problems, that they do not consider whether it is appropriate to use the Mental Capacity Act and Deprivation of Liberty safegaurds instead.
Even though the Mental Capacity Act has now been in place for the last 8 years, it is rarely used in hospital settings and arguably it has not been used for the purpose for which it was intended (i.e. for those who lack capacity) since the Mental Health Act is used far too readily without sufficient consideration for the Mental Capacity Act.
Para 1.3 of Mental Health Act Code of Practice deals with the least restriction principle and it is arguable that the Deprivation of Liberty Safeguards regime may be less restrictive to that of Mental Health Act.
Paragraph 4.22 of the Mental Health Act Code of Practice also provides that, “If the Mental Capacity Act can be used safely and effectively to assess or treat a patient, it is likely to be difficult to demonstrate that the criteria for detaining the patient under the Mental Health Act are met.”
Therefore, in my opinion, if a person lacks capacity to give consent to treatment or admission to hospital, the mental health professionals should in the first instance apply the principles of the Mental Capacity Act. However there would be circumstances where it would be appropriate to consider the use of the Mental Health Act instead (Paragraph 4.21 of the MHA Code of Practice) and these include:
1. Where the capacity of the patient is fluctuating or likely to be temporary such as patients with acute psychosis, the patient may not lack capacity for the whole period of the treatment and so the Mental Capacity Act would not be applicable for the entire duration of the treatment.
This may mean that mental health professionals would have to switch between the statutory regimes of Mental Capacity Act and Mental Health Act as the person gains capacity. It is my view and also the view of Charles LJ in the above mentioned case that it is not practicable to change statutory regimes during the course of treatment of a patient and therefore it would be better to detain the patient under the Mental Health Act in the first instance rather than to switch regimes during the course of treatment.
2. If it is necessary to deprive the patient’s liberty in order to protect others, rather than for the protection of the patient himself e.g. using physical restraint to prevent violence to others, then such deprivation of liberty would be better achieved under the Mental Health Act rather than the Mental Capacity Act and Deprivation of Liberty safeguards. This is because it is the purpose of the Mental Capacity Act to deprive someone of their liberty if it is in their own best interests to do so to prevent harm to themselves and deprivation is a proportionate response to the likelihood of the patient suffering harm and the seriousness of that harm; rather than harm towards others.
3. Also, certain treatments cannot be given to a patient unless they consent or the treatment is authorised by a second opinion appointed doctor (SOAD). A typical example of this is ECT or other treatments under S. 58A of the Mental Health Act 1983. These treatments cannot be given to an incapacitated patient under the Mental Capacity Act as they are not able to consent to these treatments. Such patients can only be given the above mentioned treatments with the authority of a SOAD which can only be obtained if the patient is detained under the Mental Health Act.
Jones (2012) argues that the authorisation procedures set out in Schedule A1 of Mental Capacity Act are extremely complex and caused the Joint Committee on Human Rights to “question whether they will be readily understood by proprietors of residential care homes even with the benefit of professional advice.” However in my opinion, that should not be an excuse for not considering the Deprivation of Liberty safeguards measures where appropriate.
This also raises the issue of the awareness and training of mental health professionals about the Mental Capacity Act and Deprivation of Liberty safeguards. The Mental Capacity Act and Deprivation of Liberty safeguards are equally applicable in a hospital setting as in a care home and should be used in appropriate circumstances.
Overall, it is my view that the First Tier Tribunal should take a proactive role in applying the necessity test and the principles established in the AM case and if satisfied that the incapacitated patient can be managed under the Mental Capacity Act and Deprivation of Liberty safeguards, then the patient should be discharged from the liability to detention under the Mental Health Act.