Amending the Mental Health Act: Part 7 – The Interface with the Mental Capacity Act
This is the seventh part of our series of briefings on Amending the Mental Health Act.
In the recent Queen’s speech, the government confirmed its intention to amend the Mental Health Act. A White Paper will be published to address the following:
- A greater control for patients over their treatment
- Making sure patients have a greater say in that care
- Greater choice and autonomy including the ability to set out preferences for care and treatment in advance
- Ensuring dignity and respect
- Reforming the process for detention and providing greater support for patients to challenge detention
- Making it easier for individuals with learning disabilities and autism to be discharged from hospital and improve how they are treated in law.
In this series of briefings we look at what amendments might be forthcoming. 1
The interface with the Mental Capacity Act
The review of the Mental Health Act chaired by Sir Simon Wessely, which was reported in December 2018, commented as follows:
“For historical reasons the MHA and Mental Capacity Act have grown up separately and operate under different court structures. This makes for neither clarity nor simplicity. We recognise that in the short to medium term it would not be possible to merge the two systems (what is known as a “Fusion Act”) and there is at present no firm agreement as to whether this would be a sound long-term aim. In the meantime, choices will have to be made as to which system to use in relation to decisions about detention and treatment where the patient lacks the requisite mental capacity.
We are firmly of the opinion that the decision should be made on the basis of whether the patient is “objecting” to what is proposed (using objecting in the usual sense of the word, as opposed to being unable to consent or dissent as in the sense of the Cheshire West judgment). That is a decision with which professionals are familiar, and is in keeping with the history and existing functions of the two Acts. It also had the virtue of simplicity – namely if objecting, the MHA should be used; if not and the person lacks capacity, the MCA. Of course, it is necessary to note the difference between the two regimes in terms of safeguards and after-care, differences that we believe are proportionate to the differences in intrusion into a person’s life between the two Acts.
Some harmonisation could be achieved by “cross ticketing” judges of the Court of Protection and the Mental Health Tribunal to hear cases where a person is subject to both the MHA and the MCA, and by ensuring recognition in both regimes of advance decision making, and the position of those who hold power of attorney and of deputies. All this must be considered in the context of the Liberty Protection Safeguards. We have to recognise that in this area we are on shifting sand.”
In the absence of a drive for a Fusion Act, fusion of the Mental Health Act and Mental Capacity Act is unlikely to be the result of the proposed amendments to the MHA. A Fusion Act ought to clarify the often very complex issues that arise when considering the interface of the MHA and the MCA, and would probably be welcomed by most practitioners, whether legal or care practitioners. However, such an Act is likely to require considerable parliamentary time to debate and the Government probably have other priorities.
The “objection” test if adopted, should assist in simplifying the approach. However, the position of those who are unable to dissent needs careful consideration.
The interface issues will also need to consider the role of advance consent, and emergency holding powers.
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.