A key part of Psychiatry is an understanding the legal basis for treating a patient who is too unwell to make a decision regarding their treatment. Dr James Ellison, who took us through a General Introduction to Psychiatry, once again joined the pod to take us through the Mental Health Act and Mental Capacity Act.

Section 2: Detained in hospital for assessment (if patient hasn't been assessed before or not for a long time); up to 28 days; cannot be extended; can be moved from Section 2 to Section 3

Section 3: Detained in hospital for treatment; up to 6 months; can be extended

Section 4: For emergencies (if only one doctor available at short notice) up to 72 hours giving time for a full assessment

Section 5: Emergency holding powers

Used if a patient is on a ward voluntarily and too unwell to leave but wants to leave. Section 5 has to be used otherwise it is against the law.

Section 5 (2): Doctor's holding power; up to 72 hours; cannot be extended; needs assessment and changed to Section 2, 3 or continue as voluntary
Section 5 (4): Nurse's holding power; up to 6 hours; cannot be extended; needs assessment as soon as possible and changed to Section 5 (2), 2, 3 or continue as voluntary

We also discussed the Mental Capacity Act (MCA) 2005 to be used whenever discussing treatment options with a patient.

The MCA assumes a number of things; as a health worker with a patient we must:

assume a person has the capacity to make a decision themselves, unless it's proved otherwise
wherever possible, help people to make their own decisions (do our best to overcome any communication barrier)
don't treat a person as lacking the capacity to make a decision just because they make an unwise decision (it's difficult but people are allowed to make bad choices with regard to their health)
if you make a decision for someone who doesn't have capacity, it must be in their best interests
treatment and care provided to someone who lacks capacity should be the least restrictive of their basic rights and freedoms

Here is the Take Visually for this episode:

How is mental capacity assessed?

The MCA sets out a 2-stage test of capacity:

1) Does the person have an impairment of their mind or brain, whether as a result of an illness, or external factors such as alcohol or drug use?

2) Does the impairment mean the person is unable to make a specific decision when they need to? People can lack capacity to make some decisions, but have capacity to make others. Mental capacity can also fluctuate with time – someone may lack capacity at one point in time, but may be able to make the same decision at a later point in time.

Where appropriate, people should be allowed the time to make a decision themselves.

The MCA says a person is unable to make a decision if they can't:

understand the information relevant to the decision
retain that information
use or weigh up that information as part of the process of making the decision

James recommended the website MentalHealthLaw.co.uk for more information.