Psychiatric detention under the Mental Capacity Act 2005

This post is about mental health detention under the Mental Capacity Act 2005 (MCA). It was prompted by some data that NHS Digital have kindly shared with me about the use of the Mental Capacity Act Deprivation of Liberty Safeguards (MCA DoLS) in ‘mental health establishments’.

The TLDR is that people who are detained under the MCA in psychiatric settings are likely to have dementia, learning disabilities or other ‘mental health needs’. Independent specialist assessments under the DoLS not infrequently find that the detention criteria are not met. People detained under the MCA have weaker safeguards against unnecessary detention and inappropriate treatment than those detained under the MHA, and are not eligible for free after-care to facilitate discharge to the community. A Bill before Parliament to amend the MCA will weaken their rights even further. Recent proposals to reform the MHA will shunt more people from detention under the Mental Health Act 1983 into psychiatric detention under the MCA. Despite growing concerns about psychiatric detention and inappropriate use of psychiatric medications for these populations, and calls to strengthen rights for those detained under the MHA, these reforms will lead to even less scrutiny and weaker rights for many people with dementia or learning disabilities in psychiatric detention.

Psychiatric detention takes place under the Mental Capacity Act as well as the Mental Health Act 1983, but with weaker procedural safeguards

When we think of ‘mental health detention’ we usually think of the Mental Health Act 1983 (MHA). However, people can also be detained in psychiatric hospitals under the MCA DoLS. These are referred to as ‘mental health establishments’ for the purpose of DoLS official data collections. In 2017-18 there were 4670 applications to local authorities in England from hospitals wishing to authorise a deprivation of liberty in a ‘mental health establishment’.

The dividing line between the use of the MHA and the MCA DOLS is fiendishly complicated (a senior judge described it as like putting your head inside a washing machine and spin dryer). At the risk of oversimplification: if the purpose of the detention is treatment for mental disorder, and the person is objecting, then only the MHA can be used to authorise any detention. If the person is objecting, they are ‘ineligible’ for DoLS. However, if a person is not objecting , then either the MHA or the DoLS can be used to authorise the detention (see this case for guidance on which).

This means that people who are judged to lack capacity to make decisions about admission for mental health treatments could be subject to pretty similar regimes of treatment, supervision and control, in the exact same locations, but under two different legal regimes: MHA or MCA. Many people prefer the criteria of the MCA, viewing it as more progressive and ’empowering’ than the MHA. This may be true for people who are more articulate, educated and do not have psychosis or cognitive impairments – they are more likely to be able to convince others that they have capacity. However, once you are judged to lack capacity, in my view, the risk thresholds for detention seem to be treated as lower under the MCA than the MHA (e.g. this case). In other words, for populations that are more likely to be assessed as lacking capacity, the MCA may make it easier, not harder, for a person to be detained for psychiatric treatment.

Under the MHA there are much stronger procedural safeguards to inject scrutiny into decisions to detain and treat in psychiatric settings.  There are more assessments involved in the main forms of admission, around 47 out of every 100 detentions result a referral to a tribunal (and if a person is not able to exercise rights of appeal, there will be an automatic referral to the tribunal after six months). Where a person does not consent to medical treatment, or is considered to lack the capacity to consent to it, then treatment must be reviewed by an independent second opinion authorised doctor (a SOAD) after a period of three months. Although many families of people with learning disabilities and autism dislike the MHA, their ‘rights’ and powers to block detention and discharge relatives are stronger under the MHA than under the MCA, where relatives have no power to object to detention or discharge a person unless they have been appointed as a welfare deputy or attorney (and most have not).  And when a person is detained for treatment they become eligible for free after-care once discharged; under the MCA DOLS they would still be subject to the means tested regime of the Care Act 2014 if they required support to live in the community.

In reality, we know from the recent Independent Review of the MHA that many of the Act’s procedural safeguards are inadequate. And the MHA together with NHS England’s Transforming Care  program has failed to significantly reduce the numbers of people with autism and learning disabilities in psychiatric detention and provide meaningful alternatives in the community. Many people with learning disabilities and dementia are over-medicated or inappropriately medicated with anti-psychotics in both psychiatric and community settings, representing very serious threats to their physical health and well-being, and resulting in thousands of deaths each year.

We also know that many people who are subject to the MHA wish to see far more radical reforms to it than those proposed by the recent MHA Review, drastically reducing powers of detention and treatment without consent. Some wish to see psychiatric detention and forced treatment abolished altogether. It is important not to get misty eyed about the MHA. But at the same time, it is doubtful that anyone calling for reforms to the MHA on grounds that it facilitates psychiatric detention and involuntary treatment would welcome instead procedural safeguards based on the MCA DoLS.

The review of the Mental Health Act proposes shunting certain populations into detention under the Mental Capacity Act instead

The recently published independent review of the Mental Health Act has proposed that this woolly interface between the MCA and the MHA should be tightened up to reduce discretion and uncertainty over which legal framework to use. The Review’s chairs have proposed that when a person objects the MHA must be used (as is the case currently), but that when a person is not objecting then the MCA must be used.* In effect this removes residual discretion to use the MHA for people who are viewed as not objecting.

Removing this discretion is attractive from the perspective of simplicity and legal certainty. Another argument that is frequently given for using the MCA DoLS instead of the MHA is that the MHA is inherently more stigmatising than the MCA DoLS; yet there is no clear evidence base for this assertion.

The net effect of this proposal is that more people will be shunted out of MHA detention into detention under the DOLS, and with fewer procedural safeguards.  The numbers of people detained under the MHA will potentially be reduced, but psychiatric detentions will not be: these are the same people, in the same places, receiving the same treatments and regimes of supervision and control, only now under a different legal framework.

Reforms to the Mental Capacity Act will weaken safeguards for psychiatric detention even further

There are serious problems in the operation of the MCA DoLS. A House of Lords Committee on the MCA and the Law Commission found that it fails to adequately protect human rights. The scale of detention following the Supreme Court’s decision in Cheshire West has meant local authorities cannot keep up with the number of DoLS applications they receive, so many people go without any procedural safeguards at all. For these reasons, reform of the DoLS is needed.

There is a Bill before Parliament to amend the MCA DoLS and replace it with a new framework known as the Liberty Protection Safeguards (LPS).  The LPS are based on proposals by the Law Commission, which aimed to simplify the procedures under the DoLS, strengthening human rights and reducing unnecessary bureaucracy.  The version of the LPS contained in the Mental Capacity (Amendment) Bill before Parliament, however, is different in many important respects to the Law Commission’s proposals.  One important difference is that the Law Commission did not generally envisage their proposed system of safeguards applying to mental health detention:

Recommendation 37: The Liberty Protection Safeguards should not apply to arrangements carried out in hospital for the purpose of assessing, or providing medical treatment for, mental disorder within the meaning it is given by the Mental Health Act. But the Liberty Protection Safeguards should be available to authorise arrangements in hospital for the purpose of providing medical treatment where those arrangements arise by reason of learning disability where that disability is not associated with abnormally aggressive or seriously irresponsible conduct.**

The government, however, elected to keep the interface between the MHA and the MCA as it is – pending the MHA Review – and has indicated that it will legislate again for this under a separate Mental Health Bill in the future.

One of the ways the LPS scheme aims to be more ‘proportionate’ is by reserving assessments by specially trained independent professionals called Approved Mental Capacity Professionals (AMCPs) for situations where a person is objecting.  In the language of the Bill, an assessment by an AMCP is required only when ‘it is reasonable to believe that the cared-for person does not wish to receive care or treatment at that place’ or reside there. It is estimated that this applies to around 30% of people under DOLS and will apply to 25% under the new LPS scheme. 

The problem for mental health detention is that the DoLS, and the LPS scheme, can only be used when those responsible for the detention take the view that the person is not objecting.  If the person is objecting, then the MHA must be used. So this means, therefore, that anybody who will be detained under the LPS in a mental health establishment will by definition be unlikely to qualify for an independent assessment by an AMCP. In other words, their detention will be authorised on the basis of assessments by ‘a person who appears to the relevant person to have appropriate experience and knowledge’, submitted to the responsible body (the hospital) and subject to a desktop review. There are no requirements for an independent professional to assess the situation in person.

‘Objections’

For the purpose of determining whether the MHA or the LPS should be used, the Bill defines objections as follows:

(1) In determining whether P objects, regard must be had to all the circumstances (so far as they are reasonably ascertainable), including the following—

(a) P’s behaviour;

(b) P’s wishes and feelings;

(c) P’s views, beliefs and values.

(2) But regard is to be had to circumstances from the past only so far as it is still appropriate to have regard to them.

Although the Bill takes a relatively broad view of objections – for example referring to ‘behaviour’ and not only spoken objections or physical attempts to leave – we also know that different people can interpret behaviour differently. Clinicians may attribute ‘challenging’ behaviour to a person’s diagnosis rather than viewing it as an ‘objection’.  There is certainly room for disagreement about whether it is ‘appropriate’ to consider ‘circumstances from the past’. A person’s wishes and feelings about admission and treatment may be hard to discern. Some people may passively acquiesce because they are scared or institutionalised. Many people will not be able to express a view – either because the circumstances they find themselves in do not facilitate their preferred means of communication, those they are trying to communicate with do not understand them, because they have a cognitive impairment that makes it very hard to communicate. Antipsychotic and sedating medication may also function to suppress objections – a reality acknowledged by the Court of Appeal as suppressing the ‘liberty to express oneself’ (see para 26).

More fundamentally, however, we can ask why a person should only benefit from these procedural safeguards and the provision of free aftercare if they are viewed as objecting? The logic of this dates back to the major reforms to mental health law in the twentieth century, which distinguished between people who were actively resisting detention (for whom the MHA 1959, and later the MHA 1983, was intended) and people who were regarded either as actively consenting to admission (‘voluntary’ patients) and those viewed as ‘non-volitional’ – incapable of making a decision either way. Both voluntary and ‘non-volitional’ patients who were not actively resisting admission (persistently and purposefully) were to be treated ‘informally’ – that is, without procedural safeguards.

But there is a fundamental difference between actively seeking admission and treatment, and therefore being in a position to advocate for oneself and take decisions (such as refusing a course of treatment that does not work for you, or discharging yourself if your surroundings are not helping you), and being unable to express a view or passively acquiescing to your circumstances. For people who are unable to advocate for themselves in psychiatric settings, the risks of inappropriate medication and inappropriate detention are arguably equal – or potentially even greater – than for those able to assert a desire to leave or refuse treatment. Yet these are the very people who will not get an independent AMCP assessment under the LPS, and who will not have an independent second opinion from a SOAD for medical treatment or the other proposed safeguards such as a statutory care and treatment plan under the MHA.  They are also more likely to be people with cognitive impairments such as dementia or learning disability who require support to live in the community, so depriving them of free after-care is likely to hit them particularly hard.

Some might argue that if a person is not objecting, then we should treat a person as closely as possible to a person who is consenting as we can. Under UK law, the very idea that people who are not objecting can still be deprived of their liberty relies on the concept of ‘mental incapacity’ – an idea that the UN Convention on the Rights of Persons with Disabilities (CRPD) has called into question. An argument might run that the CRPD means we should take a broader view of ‘consent’ than mere capacity, and treat people who are not objecting as if they are consenting. The literature and advocacy surrounding the CRPD has disappointingly little to say about people who are not objecting to treatment – the very language of ‘forced treatment’ evokes active resistance, not passive acquiescence – and in this sense CRPD advocacy has really let this population down. But even if one goes down the route of the CRPD and takes a much broader view of consent, there is a big difference between saying that someone is ‘not objecting’ to saying that a ‘best interpretation’ of their ‘will and preferences’ is that they positively wish to be admitted to this particular hospital for this particular treatment in these particular circumstances.  Moreover, Article 12(4) calls for robust safeguards on any interpretations of a person’s ‘will and preferences’ (like this proposed amendment by the Joint Committee on Human Rights). The LPS approach to ‘objections’ is not based on whether the person actively wishes to be admitted, and there is no independent scrutiny of whether or not this is the case.

Psychiatric detention under the Mental Capacity Act 2005 mainly affects people with dementia and learning disabilities

One of the problems in debating these provisions in the Bill is a lack of knowledge of who actually is detained in mental health establishments under the MCA.  There were 4,670 DoLS applications from mental health establishments in England in 2017-18 (NHS Digital 2018, see Annex C Table 2), but we do not know from the official data who this relates to or what the outcomes of these applications were. However, NHS Digital has helpfully shared this information with me under the Freedom of Information Act 2000.

The majority of applications were not granted, but of the 1660 individuals with a granted DoLS application in a mental health establishment in 2017-18:

• the majority were men (980 were men, 675 were women)
• the majority were older people (590 were aged 18-64; 305 were aged 65-75, 470 were aged 75-84 and 280 were over the age of 85)
• the largest group were recorded as having dementia as their ‘primary’ disability (730), 280 as having a learning disability, 250 as having ‘Mental health needs: Other’. 130 had no recorded disability (it is unclear how this satisfied ‘mental health’ criteria under the DoLS).

Independent assessments not infrequently reveal that the criteria for psychiatric detention under DoLS are not met

A whopping 2,045 applications were not granted. In the majority of these cases this was because of a ‘change of circumstances’. Rather confusingly, NHS Digital include assessment conditions not being met within ‘change of circumstances’, but the proportions of these are unclear.  My guess is that in many of these cases, the person’s circumstances changed faster than the local authority could get assessors out to the relevant person: they may have been discharged, detained under the MHA or transferred to a different hospital.  In 195 cases the authorisation was not granted because the person had died.

There were 305 cases (440 assessments) where the outcome of an assessment meant that one or more of the DoLS qualifying requirements were ‘not satisfied’.  Of these:

• 5 failed the age requirement
• 50 failed the mental health requirement (that the person has a ‘mental disorder’ in the meaning of s1 MHA)
• 165 people were found to have capacity and so the mental capacity requirement was not met
• In 25 cases ‘no refusals’ criteria were not met, meaning either that the person’s attorney or deputy objected or that they had made a valid and applicable advance refusal of treatment and so the MCA could not be used.
• In 140 cases eligibility criteria were not met, implying the person was found to be objecting
• In 55 cases the best interests qualifying requirement was not met.

Because in many cases assessments did not actually take place (or their outcomes were not recorded in these data) it is hard to say with any certainty what proportion of applications from mental health establishments actually satisfy the MCA criteria for detention. But of those cases where assessments were actually conducted, I would suggest that a ratio of 440 failed assessments to 1660 authorised detentions is quite high. In other words, without the independent assessments required under the DoLS, a significant proportion of people would have continued to be detained under the MCA when they did not meet the criteria. It is precisely these assessments that will be lost under the LPS.

Current and proposed reforms to mental health and capacity laws will weaken safeguards and support for thousands of people with dementia or learning disabilities in psychiatric settings

So to summarise, then, the population who are currently detained in mental health establishments under the MCA, and who will be affected by the shift to the LPS, are largely older people with dementia, adults with learning disabilities or other ‘mental health needs’.  Independent assessments by specialist assessors find that the qualifying requirements are not met in a significant proportion of cases. These independent assessments will be lost in the transition to the LPS, unless the Bill is amended to specifically require an independent assessments by an AMCP for anyone in psychiatric detention, even if they are passive or compliant. The government conceded in the House of Lords that people who are detained in independent hospitals are particularly at risk without independent assessments. This is because of the financial conflicts of interest in such hospitals, acting as both the applicant and the responsible body for the authorisation.  Consequently, the Minister committed to bring forward amendments to the Bill (not published at the time of writing) to require an independent assessment by an Approved Mental Capacity Professional (AMCP) for any application from an independent hospital, but a similar commitment was not made for NHS hospitals. Whilst the threat posed by financial conflicts of interest is not to be disregarded, there are also concerns about inappropriate treatment and detention of people with dementia and learning disabilities in NHS ‘mental health establishments’ as well. There are many reported instances of inappropriate detention, treatment and even preventable deaths in NHS hospitals as well; it is not clear why the requirement for an independent assessment by an AMCP should not apply here as well.

We should also seriously consider why this population, who are at particular risk of unnecessary use of psychotropic medication, should be deprived of procedural safeguards for medical treatment decisions and non-means tested aftercare. And why, after Transforming Care has failed to reduce the numbers of people with learning disabilities in mental health detention, and with most people with dementia or learning disabilities subject to DoLS requiring social care support to leave hospital, we would want to deprive them of rights to free aftercare under the MHA.

*Disclosure – I sat on the Equality and Human Rights Working Group of the MHA Review. The role of the Group was to advise and make recommendations to the chairs of the Review, it was not determinative of the final recommendations.

**This is because section 1 of the MHA contains an additional threshold condition for mental health detention for people with learning disabilities, whereby it must be associated with ‘abnormally aggressive or seriously irresponsible conduct.’  This was inserted because of concerns about the use of the MHA on this population. Ironically, this proposal would mean that whilst populations not meet this criterion could still be detained in the same mental health settings, only under the MCA instead – with weaker safeguards.