6.8 Relationship between the Mental Capacity Act 2005 and the Mental Health Act 1983

CONTENTS

1. Context

This chapter considers the differences, overlap and interaction of the Mental Health Act 1983 (as amended) and the Mental Capacity Act 2005.

The scope of the Mental Health Act is more limited than that of the Mental Capacity Act and is mainly limited to decisions about care in hospital and medical treatment for mental disorder.

The scope of the Mental Capacity Act is wider than that of the Mental Health Act and can cover many aspects of decision-making including decisions around medical, property and financial matters.

The Mental Capacity Act requires that decisions made under the Act on behalf of adults lacking mental capacity are in their ‘best interests’. There is no such ‘best interests’ requirement in the Mental Health Act, and an adult can, for example, be detained under that Act solely on the basis of the risk that they pose to others.

However, there are also areas of overlap and the operation of one Act does not necessarily preclude the operation of the other Act. For example:

an adult may be detained under the Mental Health Act in relation to medical treatment for a mental disorder, and also be subject to the Mental Capacity Act in relation to medical treatment for a physical disorder and / or management of their property and affairs;
an adult with dementia whose day-to-day life is managed in accordance with the Mental Capacity Act may become subject to the Mental Health Act if their condition deteriorates so that they require treatment in hospital for the mental disorder and would object to being admitted to hospital.

Note: this is a complex area, and legal advice must be sought as necessary.

2. Who does the Mental Health Act Apply to?

See also Mental Health Act 1983 chapter.

The Mental Health Act provides ways of assessing, treating and caring for people who have a serious mental disorder that puts them or other people at risk. It sets out when:

people with mental disorders can be detained in hospital for assessment or treatment;
people who are detained can be given treatment for their mental disorder without their consent (it also sets out the safeguards which apply in this situation); and
people with mental disorders can be made subject to guardianship or after-care, under supervision to protect them or other people.

A person can be detained for assessment under section 2 Mental Health Act if both of the following criteria apply:

the person is suffering from a mental disorder of a nature or degree which warrants their detention in hospital for assessment (or for assessment followed by treatment) for at least a limited period; and
the person ought to be so detained in the interests of their own health or safety or with a view to the protection of others.

A person can be detained for treatment under section 3 Mental Health Act if all the following criteria apply:

the person is suffering from a mental disorder of a nature or degree which makes it appropriate for them to receive medical treatment in hospital;
it is necessary for the health or safety of the person or for the protection of other persons that they should receive such treatment and it cannot be provided unless the patient is detained under this section; and
appropriate medical treatment is available.

A person cannot be treated under the Mental Health Act unless they meet the relevant criteria for being detained.

Decision makers do not have to ask the Court of Protection to rule that the Mental Capacity Act does not apply before using the Mental Health Act.

3. Who does the Mental Capacity Act Apply to?

The Mental Capacity Act 2005 applies where adults lack, or have reduced, mental capacity to make certain decisions at particular times.

The Act provides legal protection for people who are caring for or treating a person who lacks mental capacity. The principles of the Act must always be followed (see Principles, Mental Capacity chapter) and action can only be taken if it is in the person’s best interests.

Under the Mental Capacity Act, certain serious treatments such as non-therapeutic sterilisation or withdrawal of artificial hydration or ventilation, must be referred to the Court of Protection for a final decision.

The Mental Capacity Act does have its limits, for example a practitioner who is restraining an adult in their care only has protection if the restraint is:

necessary to protect the person who lacks capacity from harm; and
in proportion to the likelihood and seriousness of that harm.

The Deprivation of Liberty Safeguards provide safeguards for people who lack the mental capacity specifically to consent to treatment or care in either a hospital or registered care home that amount to a deprivation of liberty and where detention under the Mental Health Act is not appropriate for them at that time. See also Deprivation of Liberty Safeguards chapter.

The Mental Capacity Act does not allow for treatment to be given if it goes against a valid and applicable advance decision to refuse treatment (see Advance Care Planning chapter).

4. The Mental Health Act and Mental Capacity

The Mental Health Act is not capacity-based. The purpose of the Mental Health Act is to provide the statutory framework for the compulsory care and treatment of people for their mental disorder when they are unable or unwilling to consent to that care and treatment, and when it is necessary for that care and treatment to be given to protect themselves or others from harm.

The key point for the exercise of powers under the Mental Health Act is the inability or unwillingness of the adult who suffers from a mental disorder to consent to the relevant care and treatment. This includes adults who, notwithstanding their mental disorder, have mental capacity to do so – and an adult detained under the Mental Health Act may have mental capacity in relation to a detention or treatment decision. The question whether an adult does or does not have decision-making capacity is not key to deciding whether the powers under the Mental Health Act should be used.

This means that, under the Mental Health Act, subject to certain conditions, doctors can give treatment for mental disorders to detained patients without their consent – whether or not they have the mental capacity to give that consent.

Where Part 4 of the Mental Health Act (Consent to Treatment) applies, the Mental Capacity Act cannot be used to give medical treatment for a mental disorder to patients who lack mental capacity to consent. Nor can anyone else, like an attorney or a deputy, use the Mental Capacity Act to give consent for that treatment. This is because Part 4 of the Mental Health Act already allows clinicians, if they comply with the relevant rules, to give patients medical treatment for mental disorder even though they lack the capacity to consent. In this context, medical treatment includes nursing and care and rehabilitation under medical supervision.

However, clinicians treating people for mental disorder under the Mental Health Act cannot simply ignore a person’s mental capacity to consent to treatment. As a matter of good practice (and in some cases in order to comply with the Mental Health Act) they will always need to assess and record:

whether patients have capacity to consent to treatment, and
if so, whether they have consented to or refused that treatment.

There is no reason to assume a person lacks mental capacity to make their own decisions just because they are subject under the Mental Health Act to:

detention;
guardianship; or
aftercare under supervision.

5. Authorisation for Deprivation of Liberty under Mental Health Act or Mental Capacity Act

For more information on deprivation of liberty, see also Deprivation of Liberty Safeguards chapter.

Where an adult lacks capacity to consent, the Mental Capacity Act may be used to authorise a deprivation of their liberty unless one of the ‘cases’ under Schedule 1A Mental Capacity Act applies, meaning that the Mental Health Act would instead apply:

they are already detained under the ‘hospital treatment regime’ of the Mental Health Act (sections 2, 3, 4, 35, 36, 37, 38, 44, 45A, 47, 48, 51); or
they are in the community subject to a provision of the Mental Health Act and Deprivation of Liberty Safeguards detention would be incompatible with a Mental Health Act requirement (leave under section 17 Mental Health Act; conditional discharge or subject to guardianship) – Deprivation of Liberty Safeguards can be used where this would not be incompatible with a Mental Health Act requirement; or
they could be detained under section 2 or section 3 Mental Health Act and are an ‘objecting mental health patient’.

5.1 Authorisation for deprivation of liberty in a hospital inpatient setting

Where an adult is going to be admitted to a hospital inpatient setting under the Mental Health Act and they have mental capacity to consent to this, they can be admitted as an informal or voluntary patient.

If they do not have capacity to consent, then the following 3 questions must be asked:

Is the adult a ‘mental health patient’ – is the reason they are in hospital, to assess and treat mental disorder?
Is the adult an ‘objecting’ mental health patient – are they objecting to being admitted under the Mental Health Act?
Could the adult be detained under section 2 or 3 Mental Health Act? – the mental health and the mental capacity decision-makers should ask themselves whether, in their view, the criteria or grounds in section 2 or section 3 of the Mental Health Act are met, and if an application were made under them, whether a hospital would detain the adult.

If the answer to all 3 questions is ‘yes’, then the Mental Capacity Act cannot be used to authorise the adult’s confinement, and they must be detained under the Mental Health Act.

If they are not objecting to the detention, then there is a choice as whether their detention should be authorised by the Mental Health Act or the Mental Capacity Act, which should be determined according to which best secures the adult’s interests in terms of being assessed and treated. There should be a transparent decision-making process explaining why this is the right choice for this adult.

5.2 Community settings

Where an adult is subject to a provision of the Mental Health Act in the community, (leave under section 17, conditional discharge or subject to guardianship) a deprivation of liberty under the Mental Capacity Act can be used where this would not be incompatible with a Mental Health Act requirement (if it would be incompatible, the Mental Health Act must be used).

5.2.1 Conditional discharge

Where an adult in the community is subject to a conditional discharge, the Mental Health Act cannot be used to authorise their deprivation of liberty. If the adult does not have capacity and their care and support plan is going to give rise to a deprivation of their liberty, that can be authorised under the Mental Capacity Act either by the Deprivation of Liberty Safeguards if in a registered care home or otherwise by a Court of Protection order.

5.2.2 Leave under section 17 Mental Health Act

Where an adult is subject to leave under section 17 Mental Health Act, this can run parallel to a deprivation of liberty under the Mental Capacity Act, under the Deprivation of Liberty Safeguards or a Court of Protection order, for example under section 17(3) which provides a mechanism for the adult’s responsible clinician to put the adult in the custody of somebody else resulting in them being deprived of their liberty.

5.2.3 Guardianship

Guardianship gives someone (usually a local authority social care department) the exclusive right to decide where a person should live – but in doing so they cannot deprive the person of their liberty (see Deprivation of Liberty Safeguards chapter). The guardian can also require the person to attend for treatment, work, training or education at speciﬁc times and places, and they can demand that a doctor, approved social worker or another relevant person have access to the person wherever they live. Guardianship can apply whether or not the person has the mental capacity to make decisions about care and treatment. It does not give anyone the right to treat the person without their permission or to consent to treatment on their behalf.

An authorisation under the Deprivation of Liberty Safeguards or a Court of Protection order can sit alongside guardianship as long as this is not incompatible with the Mental Health Act.

Decision makers must never consider guardianship as a way to avoid applying the MCA.

5.2.4 Community Treatment Orders

A Community Treatment Order (CTO) is used where it is necessary for the patient’s health or safety or for the protection of others to continue to receive treatment after their discharge from hospital. It seeks to prevent the ‘revolving door’ scenario and the harm which could arise from relapse.

A key feature of the CTO framework is that it is suitable only where there is no reason to think that the patient will need further treatment as a detained in-patient for the time being, but where the responsible clinician needs to be able to recall the patient to hospital if necessary.

Where an adult in the community is subject to a Community Treatment Order, the Mental Health Act cannot be used to authorise their deprivation of liberty, that is to say, conditions cannot be imposed which would give rise to confinement. If the adult does not have capacity to consent to a care and support plan imposing arrangements giving rise to a deprivation of liberty, that can be authorised under the Mental Capacity Act either by the Deprivation of Liberty Safeguards if in a registered care home or otherwise by a Court of Protection order.

6. How does the Mental Health Act Affect Advance Decisions to Refuse Treatment?

The Mental Health Act does not affect a person’s advance decision to refuse treatment, unless the person can be treated for mental disorder without their consent. In this situation healthcare staff can treat patients for their mental disorder, even if they have made an advance decision to refuse such treatment.

Healthcare staff must consider a valid and applicable advance decision to refuse treatment as they would a decision made by a person with mental capacity at the time they are asked to consent to treatment. For example, they should consider whether they could use a different type of treatment which the patient has not refused in advance. If healthcare staff do not follow an advance decision, they should record this in the patient’s notes with reasons.

Even if a patient is being treated without their consent under Part 4 of the Mental Health Act, an advance decision to refuse other forms of treatment is still valid. Being subject to guardianship or after-care under supervision does not affect an advance decision in any way.

7. Does the Mental Health Act Affect the Duties of Attorneys and Deputies?

In general, the Mental Health Act does not affect the powers of attorneys and deputies. But there are two exceptions:

they will not be able to give consent on a patient’s behalf for treatment under Part 4 of the Mental Health Act, where the patient is liable to be detained under the Act; and
they will not be able to take decisions:
- about where a person subject to guardianship should live, or
- that conﬂict with decisions that a guardian has a legal right to make.

Being subject to the Mental Health Act does not stop patients creating new Lasting Powers of Attorney (if they have the mental capacity to do so), nor does it stop the Court of Protection from appointing a deputy for them.

Attorneys and deputies are able to exercise patients’ rights under the Mental Health Act, if they have the relevant authority. In particular, some personal health and welfare attorneys and deputies may be able to apply to the First Tier Tribunal for the patient’s discharge from detention, guardianship or aftercare under supervision.

The Mental Health Act also gives various rights to a patient’s nearest relative (see Mental Capacity Act Code of Practice for further information).

Clinicians and others involved in the assessment or treatment of patients under the Mental Health Act should try to ﬁnd out if the person has an attorney or deputy.

8. Does the Mental Health Act Affect when Independent Mental Capacity Advocates must be Instructed?

8.1 Independent Mental Capacity Advocates

There is no duty to instruct an IMCA for decisions about serious medical treatment which is being provided under the Mental Health Act. Nor is there a duty to do so in respect of a move into accommodation, or a change of accommodation, if the person is required to live there because of an obligation under the Mental Health Act.

However, the rules for instructing an IMCA for patients subject to the Mental Health Act who may need serious medical treatment not related to their mental disorder are the same as for any other patient.

The duty to instruct an IMCA also applies if accommodation is being planned as part of the aftercare under section 117 of the Mental Health Act following the person’s discharge (see Section 117 Aftercare chapter).

8.2 Independent Mental Health Advocates

Independent mental health advocacy services provide an additional safeguard for patients who are subject to the Mental Health Act. Independent Mental Health Advocates (IMHAs) are specialist advocates who are trained to work within the framework of the Act and help patients to participate in decision-making, for example, by encouraging them to express their views and supporting them to communicate their views. IMHAs should be independent of any person who has been professionally involved in the patient’s medical treatment.

IMHA services do not replace any other advocacy and support services that are available to patients, such as independent mental capacity advocates (IMCAs) or representatives for patients who lack mental capacity, and should work alongside these services.

9. Further Reading

9.1 Relevant chapters

Mental Capacity

Deprivation of Liberty Safeguards

9.2 Relevant information

Mental Capacity Act 2005: Code of Practice

Mental Health Act 1983: Code of Practice

Appendix 1: Flowchart

Deciding whether the Act and or MCA will be available to be used: Flowchart

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