Mental Health Act & Capacity

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 for more information.