A tale of two Acts: the Mental Health Act, the Mental Capacity Act, and their interface

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In January the Department of Health and Social Care published its response to the Independent Review of the Mental Health Act and a consultation on its proposed changes. As you might expect with legislation that has been around since 1983 – the reforms extend to many areas of care.

For the most part the Mental Health Act (MHA) applies to people that need assessment and treatment for mental disorders but who cannot or do not consent to admission to hospital and treatment for those purposes. Use of the MHA allows people to be compulsorily detained and treated. However, for some people who don’t have the mental capacity to make that decision and are not objecting to admission or treatment – either the Mental Health Act or the Deprivation of Liberty Safeguards (DoLS) (part of the Mental Capacity Act) may apply, and the professionals involved decide which is most appropriate.

Think it sounds technical? You’d be right – but the Independent Review considered this area of legislation as potentially contributing to higher rates of detention, so understanding ‘how’ that decision is made is important in deciding whether legislative changes can address that.

Commissioned by the Department of Health and Social Care, The King’s Fund has been conducting research on exactly that question. Using a survey and qualitative interviews, the research captured data from more than 600 health professionals, including approved mental health professionals, section 12 doctors, approved clinicians, and best interests assessors among others.

Among our respondents, most reported encountering people to whom this decision applies at least once a month, if not weekly. And while this was most commonly people with dementia, it also applied to a wide range of mental disorders. So, while this issue may appear niche, it’s far from it.

The decision that professionals are asked to make is influenced by a range of factors, but notable is how capacity, objection and treatment are understood. This is perhaps best illustrated by my own experiences in conducting the research – for as much as one interviewee outlined their clear view on how these concepts should be interpreted, the following interviewee frequently described a completely different interpretation – with equal confidence and at times using similar practical examples. This isn’t to say that either was right or wrong but indicative of a lack of common understanding of the fundamental concepts that define who this decision applies to.

Our participants also reported examples of blanket rules that were applied to local decision-making within professional groups and different settings that restrict use of Acts. We can’t say the extent to which this happens or where – but it does mean that the rights afforded to people admitted and treated in some settings and areas of England may not be afforded to those in others.

This lack of clarity and consistency is of equal concern to those subject to detention. Presenting our findings to the Lived Experience Working Group of the Mental Health Research Policy Unit, members shared their own experiences of how concepts such as capacity had been inconsistently applied, an issue that can have devastating consequences. These insights also exemplify the importance of understanding the experience of people subject to these decisions and their carers – without which decisions are only guided by clinical views on what is least restrictive.

The most worrying findings from our research were the ways in which people are being unlawfully deprived of their liberty. Examples include the continued use of informal admission to mental health units for people who lack capacity to consent to admission and are not objecting, patients left ‘in legal limbo’ on wards having been deemed ineligible for either Act, and patients who are detained under the wrong legislation or no legislation.

With the long-awaited introduction of Liberty Protection Safeguards, an amendment to the Mental Capacity Act which will replace the DoLS, the government has opted to hold fast on further changes to Mental Health Act in respect of this decision – allowing for any impact of these changes on detention rates to be assessed. Yet our findings indicate that achieving systemic change is likely to require attention to the established cultures of practice that have grown up around the use of both Acts. In addition, efforts are required to address inadequacies in the provision and monitoring of the safeguards associated with both Acts to prevent people from being unlawfully detained. Without these government promises to afford people with dignity and rights when detained are likely to go unfulfilled.



Comment date
01 April 2022

What you say is very passionate but unfortunately is heavily bias, so loses a lot of its weight. The way you talk about this situation makes it sound like 80%+ of people sectioned are done so illegally, can I suggest you find some published data to find how many people are actually detained illegally; even if you are a conspiracy theorist and double the number I'm sure you would find it very low.

Whistleblowing is much better now than it has ever been, granted it could always be better, but all levels of health and social care workers speak up when they believe something is wrong. I even know of new employees turning round to seasoned professions far higher than themselves raising concerns.

I also understand there are funding and training issues, this has always been the way and likely always will be, firstly we are only human and make mistakes and unless people want to contribute a quarter of their wages purely to the NHS, there will always be issue.

This piece of literature was informative and seemed well balanced, I'm grateful that research was conducted and the honesty of the participants helped highlight issue in the way the MCA, MHA and DoLS is viewed and enforced. More research like this is what contributes to effective and positive change. So please raise your points and share option but keep balance in mind as that is what drives positive change.

Experto Crede

Comment date
11 February 2021

How about some real straight talking about the de facto policies that exist to deliberately misuse the MCA to both remove persons from their home and unlawfully detain them in MH suites in EDs where forcibly treated. To cover backs.

This is a regular practice for at least the last 7 yrs here. Police and ambulance services contrivance to bypass the MHA because MH Trusts refuse to fund the necessary crisis services. Sitting in strategy meetings planning such actions as the fall back position despite clear case law confirming the illegality of such actions.

This is MH Trust endorsed policy. They choose to use welfare checks, paramedics trained to level 1 MCA training then speak to the crisis team who tell them to use the MCA to remove as no MH crisis professionals come out .

How about professionals and academics actually call this out for what it is : illegal violent abusive action that in reality is common assault and causes very significant trauma.

Inevitably the individual detained in this manner is then wrongly told they are sectioned and forcibly treated whilst awaiting the MHAA which then in mist cases confirms they have capacity.

And of course they are not sectioned. They are illegally imprisoned because professionals know they can abuse the law this way.

I do not accept that a single professional is confused on the misuse of the MCA . They know full well this is de facto policy and frequently used when the individual clearly does have capacity but emergency services haven't got the manpower ( nor the legal right most of the time ) to remain in someone's home.

The amount of time it is used to stop individuals from leaving an ED with extreme violence of restraint . Disproportionately used on women by male security.
When the legal route is to call the police to consider use of s136 in the ED.

If I know this as a mental then how come all these professionals conveniently don't? Acute Trust and MH Trust policies are categorical - none of them read these? Really? Sorry, no one subjected to this abuse of practice accepts this sorry excuse.

Yes the MCA was poorly drafted but the worst part is the deliberate misuse by professionals seeing it as a convenient loophole that causes very serious harm to individuals . And worse. And the inevitable lawsuits given the case law that exists and the fact so many detained in this way are deemed as having capacity once the AMHP and s12 Dr eventually turn up.

There is nothing complicated about professionals abusing the law . But there is a huge amount of denial from professionals who apparently think the vulnerable people harmed by these actions plus family and supporters aren't watching on counting cases.

And they wonder why MH acute services have such poor reputations?

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