The boundary between the Mental Health Act, Mental Capacity Act and Common Law. Dr Adrian Treloar

Principles The Common Law was codified into statue law by the Mental Capcity Act. Therefore where the Mental Capacity act applies Common Law does not Therefore Common Law only applies where statute law does not apply

MCA vs MHA The Mental Capacity Act does not apply where the Mental Health Act does apply Therefore Common Law applies only where neither the MCA or MHA apply

MHA Applies for the provision of psychiatric treatment in approved settings when it has been applied Is applied subsequent to the sectioning some-one

MCA Applies to both physical and mental treatment where the person lacks the capacity to consent to treatment specified. Allows restraint under section 6 justified by the prevention of harm to self.

Mr G Brought to Oxleas House by police on S136. Disturbed in a public place Just before papers handed over by police collapsed. Staff declined to accept papers and sent to A+E where papers were accepted and man resuscitated

Man recovered and became aggressive, requiring restraint as was assaulting A+E staff and could not be safely managed on the A+E unit. Staff felt unable to move him as could not transfer back to Oxleas under S136 and (before April 2008 S136 did not allow transfer from one place to another).

What legal jurisdictions applied here? What could have been done.?

MHA S136 applied and required a mental health assessment of patient Delivered by police to Oxleas House as place of safety. Taken into clinical care there.

MCA Patient collapsed and required transfer to A+E for medical assessment;- could have been done without any worry about the MHA;- merely remove there for urgent medical treatment to which he did not consent and did not have capcity to consent pending the S136 assessment. MCA strong presumption for saving life and to allow to die would be a grave error.

MCA allowed restraint for medical treatment and assessment on grounds of mental incapacity and also prevention of harm to self. Once better return to Oxleas house for MHA assessment or possibly do MHA assessment where patient is.

MCA does not Allow restraint to prevent harm to others This is still done under common law Therefore could and should have been restrained in A+E under common law to prevent harm to staff.

If medically fit could and should then have been transferred back to Oxleas either under S136 as that was where the 136 had been handed over Or if was on 136 in A+E Transfer under common law as the 136 did not apply;- not a safe place and no stature jurisdiction to allow safe care in A+E

In short This patient was simultaneously subject to and appropriately managed using –MHA –MCA –Common Law

Mind of Parliament Bournewood case made a big thing of the “mind” or intention of legislators. The MCA and MHA were passed to improve care for patients and to protect them. Where they do the opposite;- think very carefully. Such was not the intent of legislators and obedience in an exceptional situation is probably not a good idea. Had Mr G or a staff member died, allowing a dangerous situation in A+E would have been unlikely to be a good defence.

Mr W Frontal lobe dementia Very aggressive Insisting on living at home but in sualor and others at risk. Placed in residential home and unscrewed window to get out. Requires risperidone to make manageable.

If not requiring meds may be best subject to a DOLS If requiring meds and challenging use wither section 3 on long stay ward or a CTO Just conceivably may even use CTO and DOLS as CTO does not allow detention in one place

Conclusion The main thing is good clinical care Work out the good clinical care solution and then use the multiple laws available to produce that solution Be very careful if you feel the law requires a bad clinical solution or an unsafe management plan.