Sorry to jump on this thread but I have a similar query which might have slightly different answers…
Patient in general hospital. Assessed as lacking capacity to medication (including currently prescribed psychotropics) but is passively compliant with these. Not suitable to HTT due to risks of self neglect which cannot be mitigated at home. Patient assessed as lacking capacity to consent to informal admission to psychiatric ward but all in agreement this is needed due to risks of self neglect and needing support with medication along with need for further assessment of mental disorder with active treatment needed. Patient will go to the psychiatric ward and passively agreeing to admission but lacks capacity as unable to weigh up and retain, just says be will do whatever drs ask. Request is for further assessment and active treatment and titration of medication for mental disorder (for clarity we are talking psychosis/ depression rather than dementia).
I am seeing increasing pressure in above scenario to move P to psychiatric inpatient ward under best interests and then do urgent and standard DOLs with treatment being completed under a beat interest decision.
This brings about the following problems …
Dols are not authorised in my area for many months and as such IMCA won’t support until authorised (longest I’ve seen is over a year for best interest assessor to visit)
No right of appeal
No SOAD
Every intervention then requires a best interest decision ie meds changes
Patients are often unbefriended
Surely this is not right? How can I legally argue this? What case law is there/ specific areas of MCA/MHA? Trust view is DOLS is less restrictive in above scenario, AMHPS agree that DOLS is best and to them treat and assess mental disorder under a best interests framework on a psychiatric ward. For context I am consultant psychiatrist of an inpatient psychiatric ward.
The general principle is that if the MHA can be used to deprive someone of their liberty, then the MHA should take precedence over the MCA. Charles J emphasised in GJ v The Foundation Trust [2009] EWHC 2972 (Fam) that you cannot “pick and choose” (at paragraph 45) between the MHA and MCA, stating that the MHA should have “primacy” if it can be used. The critical question, therefore, is whether the criteria for detention under the MHA is satisfied in that particular case.
The reason for the precedence of the MHA is that the MHA grants the adult and their family stronger rights and powers to object to their deprivation of liberty compared to the MCA. It is a statutory regime which a stronger set of safeguards underpinning the scheme. Under the MHA, Nearest Relatives can object to detention or discharge, with no equivalent concept under the MCA. Moreover, the MHA gives automatic powers of referrals to the mental health tribunal to appeal against their detention with automatic legal aid; objection to a deprivation of liberty under the MCA requires application to the Court of Protection. Finally, individuals detained under s3, 37, 45A, 47 or 48 MHA become eligible for free after-care under s 117 once discharged, whereas under the MCA/DOLS, they remain subject to the means-tested regime of the Care Act 2014.
I think because the patient is consenting and not objecting to treatment, it would be difficult to argue that they meet the criteria for detention under the mental health act. Using MCA/DOLS would appear the most appropriate and probably only route available to you.
Sounds like the above is about to meet S2 criteria for detention.
Passive agreement brings us back to the old S131 situation but there is a lovely cross-over to the MCA 2005 in S131 (2) to (5).
The next issue that would be on my mind is 'Will the patient be actually detained under DOLS for treatmetn as defined in S145 MHA 1983 (Amended 2007)?
The issues are covered in “Beyond Cheshire West: A Triangular Framework for Decision Making” - which is a painful read so don’t bother. Unable to share on this site anyway.
Hi, a person cannot consent if they lack the capacity to do so. ‘Passive compliance’ is not consent.
And the old ‘less restrictive’ argument saying that a DoLS authorisation is somehow less restrictive than using the MHA is just not correct. The relevant restrictions here are the things being done to the person, not the legal framework being used to authorise them. It’s very easy to imagine or find situations where a person subject to the MHA is under fewer restrictions than a person subject to a DoLS authorisation. There is nothing in either framework which is intrinsically more or less restrictive than the other. The MHA was designed specifically for situations where a person suffering from mental disorder requires assessment and or treatment in hospital. It provides more, and more easily accessible, safeguards than DoLS (including the availability of the interview and examinations required to impose it) , and the caselaw has made it increasingly difficult to justify using DoLS in these situations.
In my view, the key issue is the ‘necessity’ test laid down by Section 3 MHA.
“it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section”
Where DoLS in an alternative framework and the patient is not ‘objecting’ (as the profession has come to accept to be the distinguishing factor with these cases), then it can’t be necessary that a person is detained under the MHA, where their detention can otherwise be authorised by the MCA.
It’s manifestly unfair that on the whims of an MDT a patient could be detained under the MCA instead of the MHA - forfeiting S.117 provisions and automatic s.68 reviews - but that’s a natural consequence of having two separate acts/regimes to provide care for mentally disordered persons. The Mental Health Bill 2024 could have consolidated these, but our Gov has chosen not to.