Recently received a referral from Surre Police, for a women who was identified as holding suicidal ideation.
The referral confirmed the subject adamantly dissented to referrals.
It also highlighted the Care Act 2014 criteria were not met. Under MCA we have assumed capacity, the subject is not known to MH services.
The SCARF referral from the Police is contradictory identifying concerns re insulin consumption to end life, but also states the subject doesn’t have access to insulin, has stated she doesn’t wish to harm herself and is in a place of safety.
SCARF handling instructions in line with DPA 2018 indicate that we cannot share the referral with a non statutory safeguarding body, and we cannot share the data without the express permission of the data controller, but normal practice for us is to refer to our NHS Partners.
Can AMHPs act as a conduit to refer this case to the NHS on the basis of safeguarding, or should we respect the subjects privacy and comply with the DHSC SHARE consensus…. Given she is an adult, with capacity, that poses no risk to others and dissented to referrals,
Lots of issues here. It always concerns me when mental capacity and the Mental Health Act are used in the same context, particularly when inaction is suggested based simply on capacity. The MCA and MHA of course have a close and complex relationship, but they are for different purposes and have different thresholds.
The MCA is about the ability to make a particular decision at a particular time. The MHA, as AMHPs are fully aware, is about mental disorder and risk (health, safety and the protection of others).
The House of Lords report and the Mental Health Act Wessely review cautioned against the ‘assumption of capacity’ being used as an excuse for inaction.
The draft MCA code of practice (which of course has only been issued for consultation then was kicked into the long grass alongside LPS), differentiated “considering” capacity from “assessing” capacity, when there is reason to be concerned that the person may not be able to make a decision. This does not undermine the principle of the assumption of capacity when capacity is being assessed.
The rest of the details may well indicate that no further action need be taken, if the assessment is that the person is not suffering from a mental disorder of a nature or degree, and is not in need of assessment for their health, safety or the protection of others. However, MHA section 13 may be triggered, thus placing a duty on the local authority to arrange for an AMHP to consider the person’s circumstances (in more detail) to ensure that an application isn’t necessary. That is not dependent on whether or not the person has capacity for a particular decision, although it will be relevant in the process of assessment.
I may be out of order here, but I am puzzled about the 'prevention of suicide ’ topic. Is there some system operating with legal validity to prevent suicide? I came across a statement attributed to the Supreme Court in 'A human right to be detained ? Mental healthcare after Savage and Rabone. The Psychiatrist (2013), 37,294-296. The Supreme Court recognised that autonomous individuals have the right to take their own life if that is what they truly want. From my layman understanding the Mental Health Act and Code of Practice clearly require the evidence of the presence of a mental disorder of nature or degree such that risk arises from the disorder. The section 2 assessment then addresses the existing mental disorder. I have less understanding of the MCA, but it seems that capacity to make decisions, even if they are considered incorrect, must be assumed unless the hopefully objective test procedures prove otherwise.
So without a proven lack of capacity or evidence of a mental disorder what is role of , social or medical services? What other legal instruments relating to the prevention of suicide are in play?
Thank you. This is my understanding. My concern was raised from observing the practice of a LA, where an AMPH and a supervisor who had correctly presumed capacity, had a letter from a gp confirming no mental disorder, for a subject with no known history with services, and who dissented to contact was subjected to referrals to NHS colleagues, threatened with a s135, and detention in police cells as a Health Based Place of Safety because it had been reported they held suicidal ideation. The referrals were contradictory. The person was an adult. Who posed no risk to others…and the lawful basis for sharing data was identified as ‘acting as a conduit’ to safeguarding concern. I am concerned by the actions taken and am trying to ascertain the legal basis for this whilst I am training,
I’m not sure that I understand. The issue of dissent to referrals: does that mean that every single person in the country has to have a S3 MCA 2005, assessment of capacity and then communicate free willing consent to a referral? And then if not of capacity would each need a S4 MCA 2005 best interests decision-making (with it’s 5 to 7 musts)?
On the issue of information sharing the issue is clear in the GDPR regulations that it is fully appropriate to share information for the purposes of direct healthcare. All this is online.
OK out of order again perhaps, lots of words and fine points made by the Psychiatrist on the referenced video, but no law on the prevention of suicide except where mental disorder leading to risk has enough evidence to be considered to be present or lack of capacity is demonstrated. Or have I missed a point?
Did you read the supporting article as well, that includes the section ’ The law and the clinician’s obligations’… Its not my area of expertise though Andrew, and I was only sharing for reference.
Thank very much James, I had not read the supporting article, but I have now. It gives me a changed perspective on the complexities of capacity and the maelstrom of responses in the medical mental health staff to suicide, some positive for the subject, others defensive of their own professional and mental situation. In the original starter for this discussion there was no indication of mental disorder which would be key for the application of the MHA section 2. The conclusions of Steve Chamberlain that no further action seems appropriate looks good to me.