Three questions, kept apart
Most mistakes come from answering one question and assuming you've answered the other two.
The difference between the Mental Health Act and the Mental Capacity Act
| Mental Health Act 1983 | Mental Capacity Act 2005 | |
|---|---|---|
| What it's for | Assessing and treating mental disorder | Any decision a person lacks capacity to make |
| Capacity | Not a criterion. It applies whether or not they have capacity | The gateway. It applies only if they lack capacity for this decision |
| Age | No lower limit for detention. Guardianship from 16 | 16 and over, or 18 for LPAs, advance decisions and |
| Treatment | can authorise treatment for mental disorder over a refusal, with safeguards. has stricter rules | Best interests only. It never overrides a capacitous refusal or a valid advance decision |
| Liberty | Detention in hospital, and powers under CTOs and guardianship | Only through DoLS, a court order or s4B |
| Challenges | The Mental Health Tribunal | The Court of Protection |
| Code | Code of Practice 2015 | Code of Practice 2007 |
Why keep the three questions apart?
Capacity is about one decision at one time. The MHA criteria are about the disorder, the risks and the treatment available, and capacity isn't among them. Who can authorise a treatment then depends on the person's legal status.
Mix them up and you get the wrong answer. A detained patient who has capacity can still refuse treatment for an unrelated physical illness, and that refusal stands (MHA Code 13.38). See how to assess capacity.
Which patients does Part 4 cover?
Part 4 lets you treat mental disorder without consent only for the patients it covers (s56). Most detained patients are, but not all:
- Covered: patients liable to be detained under s2, s3 and most Part 3 sections, and patients recalled to hospital.
- Not covered: s4 until the second medical recommendation arrives, s5(2), s5(4), s35, s135 and s136.
- Also not covered: conditionally discharged patients who haven't been recalled.
- Under-18s: the ECT safeguards in s58A apply to informal patients too (s56(5)).
For anyone Part 4 doesn't cover, treatment needs their consent, or the MCA if they lack capacity. See consent to treatment under Part 4.
A worked example: a detained patient refusing treatment
A 45-year-old man is on s3 for bipolar disorder. He refuses his mood stabiliser. He also has an infected leg ulcer and refuses antibiotics.
These are two separate questions. The mood stabiliser treats his mental disorder, so Part 4 applies: s63 at first, then s58 after the three-month period. His refusal can be overridden, with the Part 4 safeguards.
The ulcer isn't part of his mental disorder, so the section doesn't cover it. If he has capacity for that decision, his refusal stands. If he lacks it, treat under the MCA in his best interests (MHA Code 13.38).
It would be different if the wound were self-inflicted because of his illness (MHA Code 24.5). See physical illness in detained patients.
Mistakes people make
- 'She lacks capacity, so section her.' Incapacity isn't an MHA criterion, and it doesn't make anyone detainable.
- 'He's on a section, so treat his pneumonia.' Only if it's part of treating the mental disorder.
- 'She has capacity, so she can't be detained.' She can, if the criteria are met.
- 'He's compliant, so he can stay informal.' If he lacks capacity to consent to admission and would be deprived of liberty, he should never be informal (MHA Code 13.53).
- 'The next of kin agreed.' Only an attorney, deputy or the court can consent for an adult. Otherwise the decision-maker acts in their best interests.
The rules in brief
- Can they decide? That's capacity, for this decision at this time, under the MCA.
- Can they be detained? That's the MHA criteria. Capacity isn't one of them.
- Can this treatment be given? That depends on their legal status: Part 4 if they're detained on a section it covers, otherwise consent or the MCA.
- A detained patient can have capacity. A person who lacks capacity isn't automatically detainable.
Read more: MHA Code of Practice 2015, chapter 13: Mental capacity and deprivation of liberty · MRCPsychiatrist: CASC chapter 17, mental health law and capacity
MHA or MCA?
The two Acts answer different questions, so they compete less often than people think.
Can you use the MCA to treat mental disorder?
Yes, if the person lacks capacity for the decision, the treatment is in their best interests, and it isn't regulated by of the (MHA Code 13.31). An informal inpatient who lacks capacity and accepts medication is the usual example.
It stops working when they refuse with capacity, when a valid advance decision, attorney or deputy refuses, or when the care would deprive them of liberty without authorisation. Then think about the MHA.
MHA or MCA: common situations
| Usually the right route | Why | |
|---|---|---|
| Has capacity, refuses admission for psychosis, meets s3 | The MHA | The can't override a capacitous refusal |
| Lacks capacity, objects to admission for mental disorder, meets s2 or s3 | The MHA | Ineligible for (Sch 1A Case E) |
| Lacks capacity, doesn't object, would be deprived of liberty on a psychiatric ward | The MHA or DoLS | Choose on the facts and record why (MHA Code 13.57-13.60) |
| Lacks capacity, doesn't object, no deprivation of liberty | The MCA, informally | Best interests under s5 |
| Delirious on a medical ward, needs IV antibiotics | The MCA: ss5 and 6, then DoLS or s4B if needed | It's physical treatment |
| Inpatient on a general ward, mentally disordered, trying to leave, and an MHA application ought to be made | s5(2), then an MHA assessment | It holds an inpatient for up to 72 hours |
| Detained patient with an unrelated physical illness | Their consent, or the MCA | The section doesn't cover it (MHA Code 13.38) |
ECT and the two Acts
has its own rules. A detained patient with capacity who refuses it can't be given it, except in an emergency to save life or prevent serious deterioration (MHA Code 13.63). For a patient who lacks capacity, a must certify it, and it mustn't conflict with a valid advance decision or an attorney's, deputy's or the court's decision (s58A(5)).
Under DoLS or a court order, ECT could in principle be given under the MCA. The MHA Code advises an independent second opinion, and an may be needed because it's serious medical treatment (MHA Code 13.65-13.66). See ECT and section 58A.
Choosing between the Acts: what the Code says
- Not by habit or familiarity. A general preference for one regime isn't legally relevant (MHA Code 13.58).
- No default winner. Neither is generally less restrictive or better at protecting people. Weigh it in the individual case (MHA Code 13.58-13.59).
- Capacity that comes and goes points towards the MHA (MHA Code 13.54).
- Neither fits? In rare cases, the High Court's inherent jurisdiction may be needed to avoid an unlawful deprivation of liberty (MHA Code 13.69).
- Write it down. Record why you chose the route you did (MHA Code 13.60).
Working through a vignette
Look for three facts. What's the intervention: treatment of mental disorder, or of a physical illness? Does the person have capacity for that decision? Are they objecting, or would they be deprived of liberty?
Answer each in turn and the right power usually follows. A capacitous refusal of physical treatment stands. A capacitous refusal of treatment for mental disorder may lead to the MHA. Incapacity without objection opens the MCA, and for an adult in hospital who'd be confined, DoLS as an alternative to the MHA.
The rules in brief
- The MHA is about mental disorder. It lets you assess and treat it, in hospital if needed, whether or not the person has capacity.
- The MCA is about decisions. Most decisions, physical or mental, in any setting, but only ones the person lacks capacity to make. It never overrides a capacitous refusal, and it can't authorise treatment that Part 4 of the MHA regulates.
- A section covers the mental disorder only. That includes physical care that's part of treating it, such as self-inflicted wounds. Other physical illness needs consent, or the MCA.
- The real overlap is someone who lacks capacity, needs hospital care for a mental disorder, isn't objecting, and would be deprived of liberty. Then, for an adult, the MHA and DoLS are both open, unless a valid advance decision, attorney or deputy refuses part of the plan.
Read more: MHA Code of Practice 2015, chapter 13: Mental capacity and deprivation of liberty · MCA Code of Practice 2007, chapter 13: The MCA and the Mental Health Act
MHA or DoLS?
If someone is objecting to hospital treatment for mental disorder, can't be used.
Who is ineligible for DoLS? Schedule 1A
| Who | Ineligible for DoLS when | |
|---|---|---|
| Case A | Detained in hospital under ss2, 3, 4, 35-38, 44, 45A, 47, 48 or 51 | Always |
| Case B | Liable to be detained but not in hospital, for example on s17 leave | DoLS would conflict with a requirement of the section, or the care includes treatment for mental disorder in hospital |
| Case C | On a | As for Case B |
| Case D | On guardianship | DoLS would conflict with a guardianship requirement, or they'd be in hospital for treatment of mental disorder and object |
| Case E | Not on any regime, but could be detained under s2 or s3 | They'd be in hospital for treatment of mental disorder and object to that, or to some of the treatment |
In Cases D and E, an objection doesn't count where an attorney or deputy has validly consented to what the person objects to (Sch 1A para 5(5)).
Deciding whether someone objects
Look at all the circumstances you can reasonably find out: their behaviour, their wishes and feelings, and their views, beliefs and values. Past views count only so far as they're still relevant (Sch 1A para 5(6)-(7)).
Whether the objection is reasonable doesn't matter (MHA Code 13.51). Words, attempts to leave, resisting medication and distress can all be objection.
Objection now matters twice. It decides DoLS eligibility, and after AGNI it's a strong pointer that there's a deprivation of liberty in the first place.
When both are available: MHA or DoLS?
There's one overlap. The person has a mental disorder needing hospital treatment and meets s2 or s3. They lack capacity to consent to admission, don't object, and the care would deprive them of liberty (MHA Code 13.49). Both regimes are then open, and the Code doesn't steer you either way (MHA Code 13.60).
Compare the safeguards for this person. The MHA brings the tribunal, 's treatment safeguards, the nearest relative and, after s3, s117 aftercare. DoLS brings a best interests assessor, a representative and the Court of Protection. Fluctuating capacity favours the MHA.
Physical treatment in a general hospital
If physical treatment is the only reason someone needs to be in hospital, they're outside the MHA's scope. The route is the , with DoLS or a court order if they'd be deprived of liberty (MHA Code 13.39). Brief restraint to give treatment falls under s6.
While you seek a court decision, s4B lets you deprive someone of liberty to give life-sustaining treatment or do a vital act. ADASS's post-AGNI tool also notes that the Ferreira exception still applies. Someone at immediate risk of dying anywhere but hospital, treated as they would be if they could agree, isn't deprived of liberty.
When DoLS and the MHA meet
- Never both at once. Someone can't be detained under the MHA and be under DoLS or a court order at the same time (MHA Code 13.49).
- Detained while on DoLS. The DoLS is suspended. If the suspension isn't lifted within 28 days, it ends (DoLS Code 8.19-8.20).
- Starts objecting. If they begin objecting to mental health treatment in hospital and meet s2 or s3, the DoLS must be reviewed straight away (DoLS Code 8.21). Arrange an MHA assessment.
- Who checks eligibility. A s12 doctor or an best interests assessor, so someone who knows the MHA (DoLS Code 4.52-4.53).
A worked example: an older adults' ward
An 82-year-old woman with Alzheimer's dementia is admitted to an older adults' ward with agitation and psychotic symptoms. She lacks capacity to consent to admission. She's settled, accepts medication and doesn't try to leave. The ward door is locked and she's on frequent observations.
After AGNI, first ask whether she's deprived of liberty at all. Weigh the locked door, the observations and the medication against her contentment, and ask whether her acceptance is real or just compliance.
If she would be confined and meets s2 or s3 criteria, both the MHA and DoLS are open. Choose on her circumstances and record why. If her capacity fluctuates, or she starts to object, use the MHA.
The rules in brief
- Ineligible for DoLS if they're detained under the MHA. On leave, a CTO or guardianship, they're ineligible if DoLS would conflict with a requirement. On leave or a CTO, they're also ineligible if it's for treatment of mental disorder in hospital. On guardianship, they're also ineligible if they object to being in hospital for that treatment, or to some of it.
- Objecting patients. A person who meets the criteria for s2 or s3 and objects to being in hospital for treatment of mental disorder (or to some of it) is ineligible. The exception is where an attorney or deputy has validly consented to what they object to. Use the MHA.
- Not objecting, lacks capacity. The MHA or DoLS are both possible. Fluctuating capacity favours the MHA.
- In doubt about objection? Treat it as an objection.
- Physical treatment in a general hospital is usually a matter for the MCA, not the MHA.
Read more: MHA Code of Practice 2015, chapter 13: Mental capacity and deprivation of liberty · MCA Code of Practice 2007, chapter 13: The MCA and the Mental Health Act · DoLS Code of Practice 2008 (partly out of date)
Find the right power
Answer a few questions about where the person is and what's happening. You'll get the law that applies, what it lets you do, and what it doesn't.
Question 1
Where is the person right now?
Questions trainees ask
When do you use the MHA rather than the MCA?
The is for assessing and treating mental disorder, with or without capacity. The covers decisions someone lacks capacity to make, including physical treatment. A section never covers an unrelated physical illness.
Can you use DoLS for a patient who objects to admission?
Not if they could be detained under s2 or s3 and need hospital treatment for mental disorder. Use the MHA.
What's the difference between the Mental Health Act and the Mental Capacity Act?
The MHA is about assessing and treating mental disorder, whether or not the person has capacity. The MCA covers any decision a person lacks capacity to make, and never overrides a capacitous refusal.
Can the Mental Capacity Act be used to treat mental disorder?
Yes, if the person lacks capacity for the decision, it's in their best interests, and the treatment isn't regulated by of the MHA. It can't be used to deprive them of liberty without or a court order.
Can you treat a physical illness under a section?
Only if the treatment is part of, or ancillary to, treating the mental disorder, such as wounds self-inflicted because of it. Otherwise you need the patient's consent, or the MCA if they lack capacity.
Can someone be on DoLS and a section at the same time?
Not while they're detained in hospital. DoLS can sometimes run alongside s17 leave, a or guardianship (Sch 1A Cases B to D). If someone under DoLS is detained under the MHA, the authorisation is suspended, and it ends if the suspension isn't lifted within 28 days.
Can a detained patient have capacity?
Yes. Capacity isn't an MHA criterion, so a detained patient can have capacity, and their capacitous refusal of treatment for an unrelated physical illness stands.
Test yourself
A man who lacks capacity is in hospital for treatment of psychosis and keeps trying to leave. He meets the criteria for s3. Can DoLS authorise it?
Show the answer
B. An objecting patient within the scope of the MHA is ineligible for DoLS for hospital treatment of a mental disorder.