Chapter 5: Communication, psychological wellbeing and safeguarding
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Interface between the Mental Health Act ([178], revised 2007) and the Mental Capacity Act ([176])
Related theory
The purpose of the Mental Health Act ([178]) is to provide the statutory framework for the compulsory care and treatment of people with a ‘mental disorder’ when they are unable or unwilling to consent to that care and treatment, and when it is necessary for that care and treatment to be given to protect them or others from harm. The Mental Health Act is restricted to compulsory treatment for a mental disorder, which it defines as ‘any disorder or disability of the mind’ (Box 5.28).
Box 5.28
Clinically recognized conditions that could fall within the definition of ‘mental disorder’ under the Mental Health Act ([178])
- Affective disorders, such as depression and bipolar disorder
- Schizophrenia and delusional disorders
- Neurotic, stress‐related and somatoform disorders, such as anxiety, phobic disorders, obsessive compulsive disorders, post‐traumatic stress disorder and hypochondriacal disorders
- Organic mental disorders such as dementia and delirium (however caused)
- Personality and behavioural changes caused by brain injury or damage (however acquired)
- Personality disorders (see DH [80], paras. 2.19–2.20 and chapter 21)
- Mental and behavioural disorders caused by psychoactive substance use (see DH [80], paras 2.9–2.13)
- Eating disorders, non‐organic sleep disorders and non‐organic sexual disorders
- Learning disabilities (see DH [80], paras. 2.14–2.18 and chapter 20)
- Autistic spectrum disorders (including Asperger's syndrome) (see DH [80], paras. 2.14–2.18 and chapter 20)
- Behavioural and emotional disorders of children and young people
| Note: this list is not exhaustive. |
The UK government intended to pass a new Mental Health Act to replace the 1983 act. However, opposition to many of its proposals meant that the 2007 act was an amendment to the 1983 act.
The code of practice for the Mental Health Act (DH [80]) provides stronger protection for patients and includes discussion on:
- involving the patient and where appropriate their families and carers in discussions about the patient's care at every stage
- providing personalized care
- minimizing the use of inappropriate blanket restrictions, restrictive interventions and the use of police cells as places of safety.
Evidence‐based approaches
Rationale
Indications
The Mental Health Act is only applicable to people with a mental disorder. Its aim is to facilitate assessment and treatment for people with mental disorders who are unable to consent to this (or are unwilling due to a lack of insight). Although it can be invoked to prevent deterioration of mental health, in practice it is generally used where risks to self or others, arising from the mental disorder, have been identified.
Psychiatric disorders associated with substance misuse (e.g. delirium tremens and drug‐induced psychoses) are covered by the Mental Health Act. However, alcohol or drug dependence syndrome (addiction) and uncomplicated intoxication are not. Delirium and dementia are both mental disorders in the terms of the Mental Health Act.
Contraindications
The Mental Health Act cannot be used to prevent unwise refusal of medical treatment (or self‐discharge from an acute ward) by a person who has no serious mental disorder.
The act is clear that uncomplicated intoxication with drugs or alcohol, or dependence on drugs or alcohol, is not grounds for detention. Intoxicated patients are often incapacitous and can be looked after in the general hospital setting using the Mental Capacity Act until ‘sober’. People with substance dependence cannot be detained under the Mental Health Act as a route into treatment for their addiction.
Pre‐procedural considerations
When a nurse is concerned that someone with a ‘diagnosable mental disorder’ is at imminent risk of harm to or from themselves and/or others and that the person may need to be confined for their own safety, the nurse should follow local guidance on mental health or psychiatry emergencies. The guidance given here specifically focuses on inpatients.
If an inpatient develops a mental disorder of a nature, severity and riskiness that demands further assessment and treatment, the first step is to seek their consent to all the proposed interventions. This involves inviting their consent to interventions such as special observation by a registered mental health nurse, frequent reviews of mental state, medical investigations to ascertain the cause of the mental disorder, suspension of leave from the hospital and administration of psychotropic medication. If the person lacks the capacity to consent, a decision needs to be made about whether to use the Mental Capacity Act or to invoke the Mental Health Act.
Generally speaking, the Mental Capacity Act is appropriate for the short‐term care of medically unwell, acutely confused inpatients. Management should be in the patient's best interests and the least restrictive intervention should be implemented. For all other severe and/or risky ‘mental disorders’, the Mental Health Act should be used if the person does not or cannot consent.
Principles of using the Mental Health Act
Mental Health Act: Section 2
Section 2 of the Mental Health Act provides for the issuing of a 28‐day assessment order. It requires three opinions:
- a psychiatrist with Section 12 approval, i.e. speciality trainees (4–6) or consultant
- the patient's GP or an independent Section 12‐approved doctor
- an approved mental health professional (usually a specially trained social worker).
In the acute hospital setting during office hours, this process usually takes several hours. Detention of the person may need to occur more quickly than this to maintain their or other people's safety and to keep the patient on the ward. In these circumstances, Section 5(2) should be invoked.
Mental Health Act: Section 5(2)
Section 5(2) provides the power to immediately, and temporarily, detain a hospital inpatient who has a ‘mental disorder’ to ensure their (or other people's) immediate safety. A Section 5(2) lasts for up to 72 hours and a person cannot appeal against; it is imperative that once it has been activated, staff trigger the process for a Section 2 assessment to take place.
Any fully registered medical doctor (of any speciality) can act as the ‘nominated deputy’ of the ‘responsible clinician’ for the patient's care and complete a Section 5(2) application form. Local guidance should be consulted to identify who can be contacted to implement the Section 5(2). The nominated manager named in local policy should be called upon to support the completion of these forms and the ongoing management of the patient. If a psychiatric liaison service is available, they need to be involved from the outset.
See Mental Health Law Online ([180]) for the appropriate forms. These forms can be completed online (see www.mentalhealthlaw.co.uk/Mental_Health_Act_1983_Statutory_Forms), but they must then be printed out and signed.
Post‐procedural considerations
Anyone detained under Section 5(2) should be assessed for detention under Section 2 of the Mental Health Act as soon as this can be arranged. Section 5(2) should not be allowed to simply ‘run on’ until close to its expiry.
Depending on the context and outcome of the Mental Health Act assessment, a nurse may or may not have a role to play following the assessment. At the very least, however, they will need to clearly document what happened and their role in the lead‐up to and following the assessment. It will also be important for the hospital treating team to liaise with the mental health provider to ensure ongoing appropriate physical and mental health treatment.
