produced by the Cerebral Ageing and Mental Health SIG

Health teams can act under common law in the best interests of patients already on the ward who lack capacity to appreciate the risks they run, which may relate to incapacity to consider consenting to treatment or to continued care. Any such action should be reasonable, proportionate and in accord with good practice. Current practice suggests that if a patient, although incapable, is very much resisting such approaches then use of Mental Health legislation (the Mental Health Act, 1983, MHA, in England and Wales ) should be considered.

Any consultant in the general hospital in charge of the patient’s treatment (or his/her nominated deputy, who MUST be a registered practitioner, i.e. NOT a PRHO) can authorise detention of an inpatient temporarily using a Section 5 (2) (MHA in England and Wales) for up to 72 hours so that an assessment can be performed of the patient’s mental health needs. The doctor “furnishes” a report to “the managers” of the hospital in Form 12. If this is done, good practice suggests an appropriate psychiatrist be involved as soon as is practicable to consider the next steps and this should trigger further assessment under the Mental Health Act, as well as the involvement of an ASW.

The England and Wales (E & W) MHA 1983 remains in force but the Government has proposed to amend it. There is no statute legislation specifically for incapable adults in E & W (though there is in Scotland the Adults with Incapacity Act, Scotland , 2000). In 2004 the Government proposed a Mental Capacity Act to address this in E & W and when it is implemented in full as law (together with a Code of Practice) this will govern practice with incapable people in this jurisdiction. Presently it is expected to legitimise current good practice procedures, acting reasonably in the individual’s best interests. Following implementation of this Bill a reformed MHA is expected to follow for E & W.

Currently the MH A 1983 allows people with delirium to be regarded, if necessary, as suffering from mental disorder and consequently detained and cared for under the Act – though some clinicians have argued that common law should always be used here. Where physical disorder is causing the delirium treatment for this can, if necessary, be given compulsorily under the Act. Such detention would require initiation by a doctor approved under Section 12 (of the MHA) and the patient would be under the RMO-ship of a psychiatrist for the mental disorder, although he/she could also be under the care of a non-psychiatric consultant.

Non-psychiatric treatment, not directly for mental disorder, can be given on an appropriate non-psychiatric ward but only with consent or under common law in an incapable person. The patient could be admitted directly there on Section from the community if this was required (there MUST be a bed identified for the person to be detained to – they can not be detained to the hospital), whilst legally the patient was seen as on route eventually to a psychiatric ward. A detained psychiatric inpatient could be transferred to a non-psychiatric ward for non-psychiatric treatment if necessary, requiring Section 17 leave for this if going to a ward which is in another hospital. The Mental Health Act Commission suggests such formality is not required when the wards are on the same hospital site, although managed by different Trusts. Such treatment could only be given in the absence of consent and on Section if its use was for treatment of the mental disorder (eg for the cause of delirium). Otherwise, such treatment should be with consent or under common law in the patient’s best interest if he/she were incapable.

Patients with dementia (usually showing serious psychotic features and/or serious behavioural disturbance so that there is serious risk to their health or safety or that of others) similarly can be detained, compulsorily admitted and/or treated compulsorily for their mental disorder under the MHA, 1983 in E & W. All the considerations noted above, particularly regarding people with delirium, can apply with them. Similar considerations apply to patients with purely functional psychiatric disorder but having accompanying physical disorder. Then their physical disorder can only be treated with consent or under common law in their best interest if they are incapable.

Compulsory admission from the community to a place of safety, including to any appropriate hospital ward, can still be effected without the use of Mental Health legislation (in E & W) under Section 47 of the National Assistance Act, 1948 through the District Physician where an individual “being aged or infirm” requires care and is not receiving it, including because refusing it. Variability in criteria used and in levels of use of this procedure have been noted but generally there is emphasis on the presence of quite significant squalor. The Mental Capacity Act may make this superfluous.

Hospitals should have clearly defined policies and procedures for ensuring the correct procedures for legal detention and administering the legal documents.