Alex RKThe wilds of Schedule 1A to the MCA 2005 are explored in this article to which I contributed under the lead authorship of Dr Oluwatoyin A Sorinmade. The published (and graphically polished) version recently appeared in Clinical Risk and permission to Sage to reproduce the submitted article is gratefully acknowledged.
Hello Alex
Thanks for acknowledging this issue. Any thoughts as to why there aren’t many case reports when, to an interested and involved observer, it would seem that many professionals are struggling with making correct determinations about which regime applies and some staff at least are resisting changes in their practice? My two penn’orth is that the sticking points are:
1. definition of ‘treatment for a mental disorder’. That this is wide definition that would cover nursing care, maintaining basic welfare and safety and if necessary, simple containment in an environment where risks can be managed, is abundantly clear from case law but this is still contested by some psychiatrists and, oddly, on occasion, by some nursing staff who appear to be de-valuing the significance of their own interventions. It is generally contended that this term applies primarily to acceptance of medication and secondarily to acute treatment of an unstable condition and that once the patient’s condition is stable (and implicitly that they are then ready for placement) they are then in some sense no longer being treated, despite continuing to receive medication and nursing input.
2. definition of ‘objection’ to treatment for a mental disorder that narrows this concept by various means. This might for instance be by representing resistiveness to care or even direct attempts to leave the ward as not achieving the threshold because the patient is not assumed to be making a coherent objection or because the behaviour is explicable in terms of the symptoms of teh disorder (such as someone in their eighties with dementia desperate to leave because they need to care for their children, who they imagine to be of school age).
3. Re-importation of a ‘comparitor’ test by slight but probably often willful misinterpretation of the term ‘appropriate treatment’ to mean ‘the most appropriate treatment’. It is alleged that patients who (apparently!) are ready for placement in appropriate care homes are not receiving the most appropriate treatment and therefore can’t legally be detained under the MHA. This innovative interpretation is presented as the current state of the law on the Royal College of Psychiatrists website. Speaking as a social worker myself I note that these ‘hypothetical’ nursing homes seem much more capable institutions than the ones I’m familiar with and also have the additional attraction of always having vacancies and there being no funding issues to sort out.
Finally, have I spotted an error on your flow chart? The article clearly states that when someone is objecting to treatment for a mental disorder the MHA is the only option but on the flow chart, there’s an indication that the MCA is available as an option for the non-capacitous, non-compliant patient.
Does this perhaps apply to the point you introduce about the holder of welfare powers being able to consent to treatment on behalf of the objecting patient but not to the deprivation of liberty? Those circumstances would be vanishingly rare and might make the chart misleading to someone referring to it casually. (Has this possible mechanism for authorising a DoL been considered in case law? I’d have concerns about this potentially removing objecting patients from the specific protections of the Act, specifically the SOAD review of treatment).
Keep up the good work.
Dear Roger
Thank you very much for these thoughtful comments. All the points that you make at (1) to (3) are absolutely valid, (1) in particular because it’s necessary for professionals to use the definitions in the MHA 1983 for purposes of eligibility in a way that they would never dream of doing so otherwise (the classic example being dementia, where it would – but for Sch 1A – be very unusual for doctors/AMHPs even to consider deploying ss.2/3 MHA 1983).
The reference in the flow-chart to non-capacitous/non-compliant needs to be read with the (admittedly tinily numbered) fn 7 in the accompanying box, which makes clear that it is, indeed, a reference to a deputy/attorney consenting. I conduct a straw poll every time I do training in this area, and I’ve yet to come across a deputy/attorney ever having done this, which does suggest that it is indeed very unlikely. As for the flowchart being inadvertently misleading in consequence, I take your point, but perhaps the bigger point is that the whole mechanism is so unwieldy now that it requires flowcharts with footnotes!
Onwards and (?) upwards!
Alex
I’ve been asked to comment on whether a deputy or an attorney can consent to a deprivation of liberty (thereby removing the need to seek authorisation under DOLS). As DH noted in their FAQs as DOLS came in, the answer is a clear no:
“What happens if there is a donee of Lasting Power of Attorney or a deputy appointed by the Court of Protection?
Where a managing authority considers that there is a need to deprive of their liberty a person who lacks capacity to consent to the arrangements made for their care and treatment, a deprivation of liberty authorisation should be applied for in the usual way. Consent to the deprivation of liberty by an attorney or deputy would not obviate the need to seek an authorisation. However, if an attorney or deputy objects to the deprivation of liberty, the no refusals requirement of the deprivation of liberty safeguards comes into play – a deprivation of liberty authorisation cannot be given if the steps that would be taken under the authorisation conflict with a valid decision of an attorney or deputy.”
(the link can now be found at: https://www.penninecare.nhs.uk/media/1279/dols-frequently-asked-questions.pdf)
Where a patient is in Case E of Schedule 1A, as noted above, a deputy or attorney with the relevant power can consent on their behalf to the admission/treatment in question even if the person objects. However, all that does is mean that the person is no longer ineligible for DOLS, not that they are not deprived of their liberty.