Section or DoLS? The Great Interface Dilemma

Related Sector: Health & Social Care

The results are in! 832 health and social care professionals (including 387 section 12 qualified Doctors) recently took part in a survey conducted by the King’s Fund, which explored how the Mental Health Act and Mental Capacity Act were being applied to patients who were, potentially, eligible for the legal protection offered by both.

The findings, sadly, are not particularly encouraging and, in certain cases, downright alarming.

The survey was part of a larger, independent, report commissioned from the King’s Fund by the Department of Health and Social Care: “Understanding clinical decision-making at the interface of the Mental Health Act (1983) and the Mental Capacity Act (2005)”

The author of the report, Helen Gilburt found that practitioners faced the “section or DoLS” dilemma extremely regularly. Most responders reported having to make such a decision once a month, some reported that it was a weekly conundrum.

Overall, though, the preferred route appeared to depend on who was asked. Mental Health Professionals often chose the MHA route, with one S12 Doctor (one of 12 people interviewed) asserting that the more people consider the problem, the more they will see the Mental Health Act as their preferred choice. Professionals who work outside of a mental health setting though prefer to use the MCA/DoLS option. Not too surprising, perhaps but still concerning.

Why do I say that?

Because the route taken should depend on patient needs and which option offers the “least restrictive” way of meeting them, not the preference of the professionals involved, which seem to be largely dictated by the area in which they have chosen to work. To do anything else would be to contravene the patient’s rights under Article 5 of the European Convention on Human Rights further than is necessary, laying the people responsible for such decisions, and their employers, open to complaints, legal challenges and possible orders for compensation.

If this was not alarming enough, the survey also found that there were blanket policies at work in certain areas which dictated the route to be taken for entire groups of patients. If you happen to work somewhere which has such a policy in place you should really think about ignoring it and justify your decisions by focusing on the individual needs of the patient instead. Blanket policies which restrict the rights of patients are generally regarded as unlawful and only really have a place in maintaining security in forensic psychiatric hospitals (and then not always).

Of most concern were the reports that some patients were still being detained in psychiatric hospitals, despite not being eligible to have their liberty deprived under either act, simply because they had not expressed the wish to leave. As most of you know, the Bournewood Case, way back in 2004, found that sort of practice was unlawful.

Why are there such problems? Most, but not all, participants reported that they had been trained on the use of both acts but that they found them confusing and contradictory and so had settled into a style of implementation which most suited their understanding, without considering whether that “understanding” was in fact legally correct. I am, though, more than a little troubled by those participants who said that they “weren’t sure” if they had been trained on the acts or not – perhaps they were off ill that day.

The Legal Position

This issue should only arise with patients who have been found to lack the capacity to make the decision. Patients who have this capacity are not eligible for DoLS under the MCA and the MHA must be the route forward. If they are not eligible for admission under section, then they should be free to live their lives in the community.

Where patients lack the capacity to make the decision but nevertheless object to receiving psychiatric treatment, the MHA, again, is the only lawful route forward if that treatment is to be delivered against their will.

With patients who lack the capacity to make the decision but are happy to receive treatment, both options are open but the decision as to which one to take should depend entirely on the patient’s needs and which offers the least restrictive way of meeting them.

How do you assess whether someone has the capacity to consent to treatment in a psychiatric hospital? A key case in this area is A PCT v LDV, CC & B Healthcare Group [2013] EWHC 272 (Fam), which considered just this point, amongst others. The salient details relevant to that decision were whether the potential patient understood:

1. That they were going to hospital to receive care and treatment for a mental disorder/illness
2. Their care and treatment would include varying levels of supervision (including supervision on leave in the community), use of physical restraint and the prescription and administration of medication to control their mood
3. That hospital staff would be entitled to carry out personal and property searches
4. That they must seek permission of the nursing staff to leave hospital and, unless decided otherwise, would only be entitled to leave under supervision
5. If they left without permission and without supervision, the staff would take steps to have the patient returned, including contacting the police if necessary

Another, as yet unsolved, problem, in practice, is in understanding whether someone has the capacity to consent to psychiatric treatment in the community. There is precious little caselaw on this and the salient points are difficult to tease out.

Perhaps this is why practitioners stick with what works for them but sometimes fail to consider what works best for the patient.

Author: Max Duddles, Subject Matter Expert in DoLS and MHA
This article was first published on Thursday 4^th March 2021.

The Interface Between The Mental Health Act and The Mental Capacity Act

This highly practical 1-day course explores the concept of capacity, mental capacity assessments and best interests decisions. It then moves on to consider how and when the MCA should be used for patients who are detained under section in psychiatric hospital or being treated under a CTO in the community. Find out more about this course here.