Legal responsibility of professionals -- capacity and suicide

Law and practice Mental Capacity Act
1

If a person with long standing mental gealth and repeated suicide attempts, some serious. Is assessed as having capacity but discloses still suicidal with active plan . Is this person allowed to be discharged back home from A&E after psych liason assesment on the grounds of having capacity and being an adult and legally allowed to make this decision. Or is the person deemed to lack capacity because their life is at risk due to still feeling suicidal and having a plan to go through with it. So can this person be detained under section to protect from self harm if they refuse informal admission and treatment and refuse HTT involvement . Or if the person is assesed as having capacity, then, to protect from self harm, what can be done legally, but refuses admission and refuses treatment . And if assesed as having capacity but has having active plan of suicide but professionals discharge back home from a place of saftey, but no follow up from cmht or support provided is this in eyes of law deliberatly putting this vulnerable person at risk knowing that this person is actively suicidal.

2

Do the cmht or other mental health professionals involved in the persons care at the time of the person disclosing that they are suicidal with an active plan. Have a legal duty to safeguard this adult with or without capacity who is refusing informal admission or any community based intervention, to be assesed and detained under the MHA?

3

You misunderstand the MHA. Capacity isn’t the issue here, but whether the p is suffering from a mental illness of a severity that necessitates admission against their wishes

4

Thank you. Yes this is what i meant. Apologies. So if P is stating they are suicidal and have an active plan to carry this out. Does the psych liason nurse assesing this P allowed legally to say you have capacity you are an adult and its your decision. Or any mental health or medical professional to say this . As having an active suicidal plan. And having multiple attendances for od needing treatment and sone needing admission to ward at the general hospital and found on train tracks and put on s136 . All within the past 7 to 8 months. Can the professional just ignore what that P has disclosed to them on the grounds of having capacity or do they have a legal duty to safeguard . By having the P possibly assesed for formal or informal admission or atleast coming up with a plan with their mental health team and having the P involved to meet there care needs to prevent any harm. Or if by saying the P have capacity its their decision and just ingnoring this disclosure by the P is a medical negligence or possibly putting the P in a risk situation to themselves intentionally

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5

I have been considering this carefully.

The DHSC issued the SHARE Consenus, which discusses this topic but make it clear, an adult, with capacity, who poses no risk to others has the right to make their own decisions,

However, despite this guidance, some authorites such as Surrey County Council supports AMHP considering a section even where they are aware a person has no mental Ill health.

I am of the opinion that ‘forced’ contact by an AMHP where an adult has been assumed to have capacity, dissents to contact, is not known to MH services and where contact would be known to have harmful, breaches their Human Right to freedom from authority interference and fails to acknowledge both an AMHP role and the Consensus.

Further guidance on this would be helpful,

Thank you

6

Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2

Regardless of capacity, this depends on whether or not the risk is deemed to be “real and immediate” under art 2 of human rights act. Have a look at the case law attached.

7

This occurs on a daily basis where especially PD (Personality Disorders) occurs. By their virtue of their diagnosis, they seek to end their life.

Firstly wanting to end life is not a mental disorder. Containing them in a controlled environment does not mean ‘appropriate treatment.’

Next, if they had an advanced direct/living will wanting to end their life, then case law states, it is up to the doctor to intervene or not,when the patient has taken an OD etc. if they present themselves to services (Classic Cases Revisited: The Suicide of Kerrie Wooltorton).

Now we come to the issues of being risk adverse if one does not intervene when a patient is threatening suicide. Firstly, if a service remains involved, then it becomes imputable to the state as in taking responsibility. If a patient has been discharged, including from aftercare to primary care. Then the primary services can decide. If they are with secondary care, then we come to the issue of: Does one intervene? The Rabone case suggests there should be an intervention to reduce a crisis situation.

It comes to a judgement call. If it is a daily trait of a patient to end life and making threats, then you spread the risk across the MDT. If the consensus is no involvement, and it is actuarial risk that inadvertently a patient may die. Then it is a contentious issue of accepting that risk. The case law is clear. If no appropriate treatment, then no admission in/formally.

8

You might find some of the following of interest:

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9

I think you need to consider the mental illness more here. If someone does not have an impairment of the mind they cannot be deemed to lack capacity and they also cannot be detained. Consider a person one who has been diagnosed with a terminal illness where the road ahead is painful beyond comprehension… They are not clinically depressed nor do they have any mental illness. Being suicidal in itself is not a mental illness. Others may consider it an unwise decision but that does not give them to right to take that decision from the person not can they be assessed as lacking capacity or be subject to detention. This is just an example of why mental disorder/ impairment of the mind needs more consideration in cases like this.

10

I studied your post, replies and your updated responses but do forgive if I have missed an important point.

Allowed

The word ‘allowed’ leaps out at me. As you did not explain that word, I spend some time on it. To me ‘allowed’ means inter alia permitted by law or some regulatory principle. Where there is no prohibition in either it would be allowed.

Capacity

The next word is ‘capacity’. There are thousands of capacities; on for each ‘decision’. However, in mental health circles the word capacity has been used loosely, as experienced by me. I make no assumptions when reading text on a ‘page’. If (meaning hypothetically) the specific capacity was ‘A decision to commit suicide’ and if that was in the absence of an underlying or contributory mental disorder requiring assessment in a hospital - then yes the person can be ‘allowed to be discharged home’.

In a follow-up post you clarified that it was a psych liaison nurse who made the decision. It is not clarified whether that decision was made independently of any other professional (such as UK qualified consultant psychiatrist on the specialist register as such).

‘Can’ is the operative word e.g. ‘can someone break the speed-limit on the roads or drink drive’. ‘Can’ is what ‘you’ think you ‘can’ get away with - regardless of the prevailing law or regulatory principle.

The short answer in the mental health services context, which most will not relish is ‘yes’. I can say that because I have seen all manner of legal breaches happening - of a similar nature - over the last 5 years in particular. The CQC will never know. In fact the people who are doing the breaches are unaware that they are breaching. The Coroner has an idea of what’s going on from a study of PFDs, but all the Coroner can do is ask for responses in PFDs. And there is some evidence that PFDs are being ignored nationally - as lessons remain ‘unlearnt’.

The real underlying issue

But the captioned situation you outlined in aggregate is not new to me and is repeated (on balance of probability) several times every year in various parts of the country. Let’s get to the real issue. At the heart of this is ‘bed pressures’. It is so bad - and I have factual tangible evidence - that around the country applications for detention are frozen then lapsing with disturbing frequency due to lack of beds. ‘Some professionals’ are influenced by bed pressures for a range of reasons which I will not deviate to explore because I could be here all day!

Discriminatory actions
Caution: Not all discriminatory actions are illegal and discrimination is not just about race (not that anyone said so).

Spot on Kyle!! And in Northern Ireland (an almost forgotten part of the Kingdom) the law does not allow PD patients to be detained [with various qualifying words in the law]. ‘PD discrimination’ - lawful and unlawful - is a minefield topic. I resist further deviation.

‘Mental disorder’ can become a protected characteristic via ‘Disability/Equality Legislation’, in certain circumstances.

Negligence

‘Medical negligence’ is not separate to any other form of categorised ‘negligence’ such as ‘aviation negligence’. How? The law is clear what constitutes negligence via 4.5 rules mostly in common law. [But there are other forms of neglience].

Exposing a patient to risk is not ‘negligence’ in law. Why? Because risk is simply a probability of adverse outcome (tightly summarising the Royal Society’s definition). The first qualifying factor for negligence is ‘loss’, ‘harm’ or ‘damage’ (or similar concepts). If the risk materialises as damage and it is caused by act or ommision, then the first test of negligence in law is engaged.

Criminal Neglect

Interestingly ‘neglect’ is covered as a criminal offence under S127 of the MHA 1983(Amended 2007). It mainly covers inpatients. But there is some room for outpatients or persons attending a hospital for ‘treatment’ (if that were to become construed as assessment). Caution: I am not inciting a prosecution of anybody. I am just sharing my thoughts on the issue of neglect and if there are any possible consequences.

The short answer is ‘YES’.

Human rights

Post-Savage and Rabone, Article 2 Rights may come into the fold in how neglect and negligence may be considered: //investigativepsychiatry.com/2024/10/14/article-2-in-psychiatry-savage-and-beyond/

Conclusion

But the way the law works - as we know - is evidence, breach, complaint, regulators/police, courts etc in broad brush, and a rather long process in most situations. Most health workers know in the back of their heads that, a) the probability of being caught is very low and b) the chance of matters reaching a court or regulator are very small. I know what they know because I talk to people and listen to how they evaluate risks to their careers etc. I see what they do. Many believe that they will be ‘defended’ if there were ‘no beds’. This leads me right back to a clear memory from1994, when as a junior doc, I asked the bed manager FTF for a bed to admit an acutely suicidal patient. Response was (behind closed doors of course), ‘No beds. If she dies she dies. No beds.’ And I have seen that attitude shaping cognitions ever since. Perhaps I was sensitised by the trauma of the statement and therefore biased in my attentional focus over the years.

I await investigation of the next major scandal in mental health services, to tell me what I already knew over the last 10 years. That’s how the Empire works - hard evidence for that, just starting with Social Care/Social Work fiascos. [Sidebar: I need investigations to tell me what I know: //youtu.be/Q5wu_lIhRpg LOL!]

So - in the meantime I expect to see and hear about cases similar cases to what you have described. I’ve said to everyone working in a team with me, “It is most important to follow the rules, when no one is watching.” - but that never made any tangible difference.