The Mental Capacity Act 2005 provides the legal framework for acting and making decisions on behalf of individuals who lack the mental capacity to make particular decisions for themselves. Everyone working with and/or caring for an adult who may lack capacity to make specific decisions must comply with this Act when making decisions or acting for that person, when the person lacks the capacity to make a particular decision for themselves. The same rules apply whether the decisions are life-changing events or everyday matters.
Before making an application under the Mental Health Act (MHA), doctors and Approved Mental Health Professionals should consider whether they could achieve their aims safely and effectively by using the Mental Capacity Act (MCA) instead. If a doctor believes that they can safely assess or treat a person under the MCA, they do not need to consider using the MHA.
Sometimes it will be necessary to consider using the MHA rather than the MCA because it is not possible to give the person the care or treatment they need under the MCA but it is important to remember that a person cannot be treated under the MHA unless they meet the relevant criteria for being detained. For example, compulsory treatment under the MHA is not an option if the patient’s mental disorder does not justify detention in hospital, or the patient needs treatment only for a physical illness or disability.
There is no reason to assume a person lacks capacity to make their own decisions just because they are subject (under the MHA) to detention, guardianship or supervised community treatment but people who lack capacity to make specific decisions are still protected by the MCA even if they are subject to the MHA (this includes people who are subject to the MHA as a result of court proceedings).
Subject to certain conditions, the MHA allows doctors to give patients who are liable to be detained treatment for mental disorders without their consent – whether or not they have the capacity to give that consent. But doctors treating people for mental disorder under the MHA cannot simply ignore a person’s capacity to consent to treatment. As a matter of good practice (and in some cases in order to comply with the MHA) they will always need to assess and record whether patients have capacity to consent to treatment, and if so, whether they have consented to or refused that treatment.
- See more at: http://www.cavamh.org.uk/directories/mental-health-directory/legal-matters/mental-capacity-act-2005#sthash.n5Y6CCx8.dpuf