The Acts: mental capacity and mental health

Yellow kit bag

The Mental Capacity Act (MCA) and the Mental Health Act (MHA) are acts of law, but make very different statements from one another about what we are expected to do to support patients. 

The Acts

The Mental Health Act supports patients when they are suffering from a mental health condition; under this Act, the Trust supports the patient (once identified) to have a section in place, and then transport them to a designated location, supported by a registered mental health worker and the police. 

The Mental Capacity Act identifies that all people over the age of 16 must be assumed to have capacity, unless it becomes clear in a discussion that this may be in question. This Act requires all staff to undertake an appropriate assessment following a two-stage assessment, set out within the Act. This also requires the person undertaking the capacity assessment to support the person if the assessment suggests that they have no capacity and they may be making unsafe decisions. 

Capacity assessments for patients

Staff are requested to undertake capacity assessments on patients who refuse transportation of treatment requirements. 

The mental capacity legislation is a very clear that all people over the age of 16 must be assumed to have capacity unless something about the way they are interacting with you makes you worry about their decision making. The Act is very clear on the simple  assessment, and can be done very quickly to check a person’s capacity to consent. 

The two-stage assessment 

Stage 1 requires the following considerations:

Is the patient orientated to person, time and place?

Are they suffering a dysfunction of brain, or brain function? This would identify conditions that may change the patient’s ability to make safe and appropriate decisions, e.g. alcohol, drugs (both medication and illicit drugs), metabolic issues like diabetic disorders, hypoxia, UTI, head injuries etc. This is not an exhaustive list as many conditions could affect the patient’s thinking and decision making. 

Stage 2 requires you to talk to the patient and explain why you are there and wanting to help them:

You must be frank and informative to tell the patient why you are there, what is wrong with them, what you want to do to help and what may happen if they do not follow your advice. This can include telling the patient that they will die if they do not have the treatment or attend the hospital.

  • 1. The person must be able to comprehend the information relevant to the decision (explain as above and ensure it is appropriate to the patient’s age and understanding)
  • 2. The person must be able to retain the information long enough to make a decision (if they have a head injury of other issues they may not have an ability to retain the information and as such may not have capacity)
  • 3. The person must be able to weigh up the information (give them time to think about what they want)
  • 4. The final element is that the person must be able to communicate their decision to you. 

These steps can be followed very easily and must be recorded on a formal document - this is the Trust Capacity to Consent paperwork. If a patient manages to answer all the processes stated above then they have capacity and their thoughts and wishes should be respected. 

If a person does not manage to pass the stages above and you have serious concern about their decision making and ability to stay safe, then you will need to take further action.

When a person doesn't have capacity to consent you are required to act in their best interests, and you should try and take the least restrictive option. It may be that transport to hospital is required, and if so, the legal requirement is for the person who undertook the capacity assessment to be the person who undertakes the removal. The removal of a patient must be undertaken in the safest way possible, both for yourself and for the them. Please be aware that the police have no additional legal powers to to support you unless the patient poses a risk to yourself and/or others; as part of your dynmaic risk assessment, if you don't feel you can safely remove patient on your own you may wish to call fo additional assistance.

Updated 2nd September, 2014

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