The Mental Health Act and the emergence of common law

A brief consideration of how incapacity legislation has evolved is helpful to conceptualise why the current legal situation has emerged. The Mental Capacity Act 2005 and the processes of personal decision-making for individuals lacking capacity can be traced to De Prerogativa Regis of 1324, but a significant milestone was the Mental Health Act 1959. This established the Court of Protection and allowed for the appointment of a receiver to manage property and affairs. Notably, there were complex and extensive provisions for guardianship under the 1959 Act that allowed the guardian to make personal welfare decisions. This was done infrequently and the 1983 Mental Health Act subsequently attenuated the authority of the guardian. The loss of guardianship powers relating to property and personal welfare decisions created a legal lacuna. The courts were then required to deal with cases and common law evolved to fill the gap. Particular issues that the courts had to contend with were how capacity was to be defined, what legal jurisdiction existed to make decisions on behalf of persons lacking capacity, who could exercise it and how best interests were determined.

The Mental Capacity Act

The Mental Capacity Act is remarkably similar to the proposals made by the Law Commission (1995) following a general consultation in relation to mentally incapacitated adults and decision-making. The Act codified common law and provides a statutory framework in England and Wales in relation to the decisions made for those who lack capacity to make their own. The Mental Capacity Act 2005 Code of Practice (Department for Constitutional Affairs 2007) contains a comprehensive discussion and guidance on the provisions of the Mental Capacity Act. The scope of the Act is extremely wide and potentially affects the whole population over the age of 16.

The provisions of the Mental Capacity Act include: how one defines incapacity; how capacity should be assessed; and who can take decisions in which situations and how they should go about this. It also enables people to plan ahead for a time when they may lose capacity. Decisions may be simple or wide-ranging and include those relating to treatment for physical or mental disorder. The Act created a new statutory service – the Independent Mental Capacity Advocate (IMCA) service.

Underpinning the Act are five statutory principles (Box 2). Generally, these flow from common law and reflect the importance of protecting the autonomy of the incapable individual and make it clear that a person should be assumed to have capacity unless proven otherwise. The definition of best interests represents a departure from common law and takes the form of a checklist. In making a determination of best interests a number of considerations must be taken into account, including: the likelihood and timing of recovery; encouraging the participation of the individual as far as possible; the decision to be made should not be motivated by a desire to bring about death; and the past and present wishes, beliefs and values should be considered along with the opinions of any named relative, carer or substitute decision-maker.

Thus, the Mental Capacity Act makes provision for individuals who, because of long-standing or temporary incapacity, require a degree of or complete authority over personal welfare decisions. The Act, however, as formerly introduced did not authorise the detention of these individuals where detention under the Mental Health Act is inappropriate. Therefore, in response to HL v. United Kingdom [2004] the structure that was ultimately introduced in Schedules A1 and 1A of the 2005 Act are the deprivation of liberty safeguards discussed below.

The Mental Capacity Act 2005 Code of Practice

In consideration of the circumstances that may amount to deprivation of liberty and the range of factors that must be taken into account it is helpful to bring together a number of different strands from relevant codes of practice and domestic case law. Deprivation of liberty (which is not allowed without formal authorisation) and ‘restriction of liberty’ (which may be authorised by the Mental Capacity Act) are considered briefly in the Mental Capacity Act 2005 Code of Practice (Department for Constitutional Affairs 2007: Chapter 6). This chapter discusses Sections 5 and 6 of the Mental Capacity Act.

Interpreting the law for those in care

Despite all of these considerations there remains a fundamental difficulty in relation to people in hospitals or care homes in determining which of them are being deprived of their liberty. Until there is more guidance available from government or through judgments handed down through the courts there is likely to be a considerable amount of variation in how the law is interpreted. Notwithstanding this, the starting point in consideration of whether deprivation of liberty is occurring is the individual's care plan. For any individual, it will be helpful to summarise what elements of the care plan are likely to be judged against the factors above; consider the effects of the care arrangements on the person's individual freedoms along with their expressed intentions; and whether the cumulative effects of the restrictions imposed go beyond mere restriction. Regardless of the lack of clarity, it is vital that clinicians develop their appreciation and familiarity of the concept so that an awareness of it becomes an integral part of their routine practice.

Responsibility for authorisation

It is the ‘managing authority’ of a hospital or care home that has responsibility for applying for a standard authorisation of deprivation of liberty to the ‘supervisory body’. In the case of a National Health Service hospital the managing authority is the body responsible for running the hospital and in the case of a care home or private hospital it will be the person registered under Part II of the Care Standards Act 2000. The supervisory body will be the commissioning primary care trust in the case of hospitals (in England) and where the managing authority is a care home it will be the local authority where the person is an ordinary resident. In Wales, deprivation of liberty can be authorised by Welsh Ministers or local health boards. The supervisory body is responsible for considering requests for standard authorisations, commissioning assessments and where all of the assessments agree, authorising deprivation of liberty.

The assessments and effect of deprivation of liberty

To establish whether or not the qualifying requirements of the deprivation of liberty safeguards are met and whether it is appropriate to issue a standard deprivation of liberty authorisation, the supervisory body is required to arrange for the following assessments to be undertaken:

1. • age assessment

2. • no refusals assessment

3. • mental capacity assessment

4. • mental health assessment

5. • eligibility assessment, and

6. • best interests assessment

(see Table 1 for description of the purpose and who may undertake the individual assessments). The assessments must be done by at least two people and will be recorded on standard forms. The regulations and the Code of Practice set out how conflicts of interests between the assessors, their employers and the individual under assessment are avoided. Where deprivation of liberty needs to be authorised in an emergency, the managing authority may itself issue an urgent authorisation pending completion of the standard authorisation application process. An urgent authorisation may initially be for a maximum of 7 days but may be extended by the supervisory body for up to a further 7 days in exceptional circumstances.

TABLE 1 The requirements for a deprivation of liberty standard authorisation

Assessment	Purpose	Who can carry this out
Age	Is the relevant person over 18?	Anyone who the supervisory body is satisfied is eligible to be a best interests assessor (approved mental health practitioner or other suitably trained professional)
No refusals	Establish whether a deprivation of liberty authorisation would conflict with another existing decision-making authority, e.g. Is there a valid advance decision applicable to some or all of the treatment in question? Is there conflict with the valid decision of a donee or court-appointed deputy?	Anyone who the supervisory body is satisfied is eligible to be a best interests assessor (approved mental health practitioner or other suitably trained professional)
Mental capacity	Does the relevant person lack the appropriate decision-making capacity on whether they should be accommodated in the hospital or care home or receive the recommended treatment?	Registered medical practitioner approved under Section 12 of the Mental Health Act or with special experience in diagnosis or treatment of mental disorder. Must have completed appropriate training Or best interests assessor (approved mental health practitioner or other appropriately trained professional)
Mental health	Does the relevant person have a mental disorder within the meaning of the Mental Health Act 1983? How will the mental health of the person being assessed likely be affected by being deprived of their liberty? Must report their conclusions to the best interests assessor	Registered medical practitioner approved under Section 12 of the Mental Health Act or with special experience in diagnosis or treatment of mental disorder, e.g. general practitioner with special interest. Must have completed appropriate training
Eligibility	Need to consider whether the relevant person is not eligible for deprivation of liberty authorisation because: they are detained as a hospital in-patient under the Mental Health Act 1983 or the authorisation would be inconsistent with an obligation placed on them under that Act, e.g. requirement to live somewhere else because they are on leave of absence from detention or subject to guardianship, supervised community treatment or conditional discharge. If proposed authorisation relates wholly or partly to treatment of mental disorder then need to consider the individual's objection to treatment and whether they meet criteria for detention	Approved mental health practitioner or registered medical practitioner approved under Section 12 of the Mental Health Act
Best interests	To establish whether deprivation of liberty is occurring or going to occur and if it is in the best interests of the relevant person. Is it necessary to prevent harm and is it a proportionate response to the likelihood and seriousness of that harm?	Approved mental health practitioner or other professional such as social worker, nurse, occupational therapist or psychologist with appropriate level of experience and competencies

The regulations in England specify that the assessment process for a standard authorisation must be completed within 21 calendar days of the date on which the supervisory board receives a request or within the period for which an urgent authorisation has been granted. In Wales, the regulations specify that all assessments required for a standard authorisation must be completed within 21 days of the date the assessors were instructed by the supervisory body. If any of the qualifying requirements are not met, a deprivation of liberty authorisation cannot be given.

The best interests assessor

The best interests assessor plays a central role in the deprivation of liberty safeguards process comparable to that of the approved mental health practitioner in the Mental Health Act assessment process. A best interests assessor:

1. • is an approved mental health practitioner or a member of the professions eligible to be an approved mental health practitioner;

2. • has at least 2 years of post-registration experience;

3. • has successfully completed training that has been approved by the Secretary of State to be a best interests assessor; and

4. • has the skills necessary to obtain, evaluate and analyse complex evidence and differing views and to weigh them appropriately in decision-making.

The best interests assessor is required, by regulations, to supply relevant information to the medical practitioner carrying out the mental health or eligibility assessment. They are required to evaluate the care plan, seek the views of those involved in caring for the individual, involve the person and support them in the decision-making process. They must state how long the authorisation should last (up to a maximum of a year) along with any necessary conditions and recommend someone to be appointed as the ‘relevant person's representative’. Finally, they are required to submit a report to the supervisory body, within an agreed time frame, stating the reasons for their conclusions.

Psychiatrists may be called on to undertake any one or all of the mental health, mental capacity and eligibility assessments, assuming the supervisory body is satisfied that the assessor has the required skills, experience, qualifications and training (Table 1). Ideally, the supervisory body should consider using a doctor who is already known to the relevant person and should ensure that the assessor is suitable for the particular case. Registered medical practitioners undertaking mental health assessments need to establish whether the relevant person has a mental disorder within the meaning of the Mental Health Act 1983. Given positive assessments individuals with intellectual disabilities can receive deprivation of liberty safeguards whether or not their disability is associated with abnormally aggressive or seriously irresponsible conduct. The mental health assessor is also required to assess how a person's mental health will be affected by the deprivation of liberty and inform the best interests assessor of these conclusions.

Deciding to apply the Mental Health Act or the Mental Incapacity Act

For an individual who lacks capacity and who requires care or treatment there may be a choice of provisions to which he or she may be subject. When someone is not deprived of their liberty, the preferred authority should be regulated by the provisions of the Mental Capacity Act. In general, where there is a requirement for detention and treatment for a physical disorder the Mental Capacity Act should prevail. There will, however, be individuals who lack capacity and require treatment for mental disorder and therefore may be subject to the provisions of either of the Acts. It will be the responsibility of the eligibility assessor (either a best interests assessor who is an approved mental health professional or a mental health assessor who is Section 12(2) approved) to decide whether it is appropriate to use the deprivation of liberty safeguards procedures or whether detention under the Mental Health Act would be more appropriate. Briefly, the relevant person will be ineligible for authorisation under the provisions of the deprivation of liberty safeguards procedures if he is or ought to be detained under the Mental Health Act 1983 or the proposed course of action would be in conflict with the compulsory regime to which he is subject, for instance where he is to live. Box 4 lists a range of considerations that professionals must regard when considering the limits of the Mental Capacity Act and therefore whether they are eligible for a deprivation of liberty authorisation.

The legal landscape is changing in how eligibility is interpreted. Following the complex judgment in GJ v. The FT and the PCT and the Secretary of State for Health [2009] it seems that there may be a significant move towards the use of the Mental Health Act in hospital settings, given what would seem to be a low threshold for considering what constitutes an objection to treatment and diminishing the use of the Mental Capacity Act when the Mental Health Act is available.

Responsibilities of the supervisory body

The supervisory body may not give authorisation unless all of the assessments are supportive. When granted, there are a number of steps that must be taken by the supervisory body. It must specify the duration of the authorisation, which must not exceed 12 months or be longer than the recommendation of the best interests assessor. The supervisory body may attach conditions to the authorisation with which the managing authority are obliged to comply. There must be written notice given to specified people to inform them of the decision and a relevant person's representative must be appointed. The supervisory body can be required to review the authorisation at any time by the relevant person, their representative or any independent mental capacity advocate representing the person and a review can be initiated if there has been a significant change in circumstances and, if appropriate, revoke it before it expires. If it is reported to a supervisory body that a person is believed to be unlawfully deprived of their liberty, a best interests assessor must be appointed to investigate the situation within 7 days followed by a full standard authorisation assessment process.