I would very much appreciate advice on this current scenario. I am a volunteer in Rethink Mental Illness and run a local support group for mental health carers.
A young man in his 20s has diagnoses of psychotic illness and autism. Over the years he has had many admissions to mental health units under the MHA and several community placements which have broken down.
He is the only child of devoted loving parents but has often told staff they must not talk to his parents. Last year his RC and social worker conducted a Best Interests assessment and concluded they could communicate with his parents who found overnight that at last they could know what was going on and contribute to care planning etc. Unfortunately he has since been on 2 other units which have again excluded the parents completely.
Now the patient who had been violent has been arrested on the ward by the police and is remanded in custody. The parents know no more. They do not know which prison their son is in and are desperately worried about him.
My questions are around:
Has the MCA been correctly applied?
Can it be right that these parents are sometimes involved in their son’s care and sometimes not?
What options do the parents have now to find out if their son is OK and be part of his life again?
On the facts presented, it is difficult to conclude that the MCA has been applied consistently and there may be grounds to question whether the later teams have complied with the Act.
The crucial issue is not whether the patient wishes his parents to be involved but whether he has the capacity to decide that issue.
The previous Responsible Clinitian and Social Worker evidently concluded that
A he lacked capacity in relation to the decision about sharing information with his parents and
B that it was in her Best Interests to involve them
Assuming that assessment complied with sections 2,3 and 4 of the MCA, that would be a lawful decision.
The fact that he expressed a wish that his parents should not be told does not automatically prevent disclosure if he lacked capacity. His wishes and feelings are an important factor under section 4 (6) but they are not the sole consideration.
Therefore, if later clinical teams simply refused to communicate with the parents because the patient said ‘’ dont tell them’', without:
A assessing his capacity regarding that decision and
B undertaking a fresh Best Interests assessment,
there would be a legitimate question whether the MCA has been properly applied.
Yes but only if there is a lawful reason.
That means vapacity may
a fluctuate
b mental state may improve or deteriorate
c different circumstances may justify a different outcome.
Where there has already been a carefully considered Best Interests decision involving close family, good clinical practice would normally require the subsequent team to explain why they are departing from it.
A change of clinitian should not of itself, produce a completely different approach to family involvement.
The parents could:
a write to the prison healthcare team requesting that his capacity regarding family contact be assessed,
b ask whether a Best Interests decision has been made concerning communication with them,
c explain their long history of involvement in his care and why their continued involvement is likely to benefit him,
d request that prison mental health services review the previous Best Interests decision made by the Responsible Clinitian and social worker,
e ask whether he remains under the Specialist mental health care and, if so, whether those services are liasing with prison health care.
If the family believe the MCA has not been properly followed, they may use the NHS complaints process regarding the hospital.s decision-making before his transfer into custody.
If he is later transferred back to hospital under the Mental Health Act, they can again ask that the issue of family involvement be formally reconsidered.
Very tricky situation which cannot simply be answered based on the information given above. The RC and social worker clearly assessed him last year to lack capacity to make decisions regarding sharing of information, hence the best interests decision to share information with his parents. Just because someone lacks the relevant capacity, doesn’t immediately take away their rights, and depending on the impact on the individual, it may on balance be considered to cause greater harm to the person not to communicate with the parents, or at least only in a limited way. This will depend entirely on the benefits and burdens of the options in this individual situation.
If the person has capacity to make this decision, then it must be respected, notwithstanding the distress it will surely cause his parents. One of them will almost certainly be his Nearest Relative under the Mental Health Act, so must be consulted when he is detained, but that won’t extend automatically to ongoing information about care planning.
You state he has “often told staff they must not talk to his parents”. If this indicates that he is sometimes content for information to be shared, then there is maybe room to discuss this with him when he is more amenable and to get an advance statement of wishes.
Further questions (which I don’t expect answered here) are whether it appears that his refusals are generally indicative of a loss of capacity or a deterioration in mental state. You ask whether the MCA has been correctly applied, but there is no information on whether the various units have considered his capacity to consent to sharing information, or whether they are simply taking his statements at face value. To reiterate, even if he lacks capacity to make this decision, this doesn’t automatically mean that information should be shared. A calculation needs to be made to balance whether it is in his best interests to share the information (not whether it is in the best interests of his parents), given the possible negative impact of going against his expressed wishes.
In most cases, I would consider it important for care teams to obtain information from important others such as parents, in order to provide the best possible care to the person. It is perfectly possible for a skilled professional to discuss with parents about their loved one and their needs without breaching confidentiality. This won’t satisfy the parents’ desire for information but will maybe reassure them that people are working to provide effective care to him.
Hi, You need to get him access to a good solicitor that has knowledge of the MCA and MHA. You can get in touch with the local commissioned IMHA service and ask someone to take his case. The question is that if he is mentally ill or illness is related to his Autism, he should be under Section and not in prison if he meets the criteria.
Insufficient data. How? The reported facts in the OP do not detail which of the some 11 issues under S4 MCA 2005 were addressed or applied. Without that detailed information is not possible for me to know how or what issues were explored for relevance. But someone else will probably find that it’s not necessary to know the details.
But on one occasion I used the side-door to best interests via S5. No one arrested me or sued me.
How is ‘right’ to be determined? I do not know. Parents are of people who are mentally impaired (or not) are normally sometimes involved and sometimes not.
Not advice - because I don’t ‘play the game’ - though will act lawfully. My preferred route if I was one of the relatives, would be to send in (by Special Delivery) a well worded letter to the relevant authorities detailing that by not consulting and sharing information they are putting the loved one at risk.
Thanks to those who have responded to my query. We are going to make a complaint to the relevant NHS Trust about their practice under the MCA which should at least help the parents understand how the decisions about (not) involving them were made.