Is the lack of cohesion between the Mental Capacity Act and the Mental Health Act keeping patients in hospital and not in the community?

Is the lack of cohesion between the Mental Capacity Act 2005 and the Mental Health Act 1983 dangerous for patients?

This is an important question for patients and their families because if patients are discharged from hospital without the proper community care plans in place, it can increase the risk of them deteriorating in the community. 

This can prevent the stability that would have enabled the patient to rebuild their lives after being hospitalised. It can also put the patient and others in dangerous situations whilst the patient is deteriorating.  

Further, it can be excruciating for families supporting a patient through one hospital admission but to force them to re-live this experience and simultaneously battle a flawed mental health system can often create mental health issues with other family members too.

Background 

The Court of Protection is a specialised court that can make decisions on behalf of an adult who is deemed to lack mental capacity in one or more areas, in their best interests. For example, it could decide where they should live or what package of care they should receive. The statutory provision that underpins the Court of Protection is the Mental Capacity Act 2005 (MCA).

However, when a community discharge is due to happen for someone who has been detained under the Mental Health Act 1983 (MHA) there's often a lack of cohesion between the health care providers and community care providers, particularly where a patient has experienced delusional or psychotic symptoms. 

There are existing provisions outlining the housing and care entitlements that a patient who has been detained under section 3 of the MHA may receive. There are also statutory provisions under the Care Act 2014 setting out the duties of public authorities to meet the care needs of those with assessed care needs. 

For example, a patient may need support to maintain their personal hygiene, to manage medical appointments, to take their medications, to maintain a habitable environment and so forth.

This Act also covers the needs of a patient’s carers and aims to prevent carers developing additional needs through a lack of proper community support. However, even though these provisions have been in effect for many years, they are often not being properly utilised by health or community care providers. 

Limited understanding of the Mental Capacity Act

In addition, it's notable that the average consultant psychiatrist, outside of independent experts, often have a very limited understanding of the MCA, and appear to be unaware of how it could be transformative for their patient’s care. 

As a result, a patient’s treating psychiatrist can be unable to properly assess a patient’s capacity (decision making ability) in a given area, particularly where the patient has a nuanced presentation. For example, fluctuating capacity, borderline capacity or multiple diagnoses. 

Therefore, the extent of the patient’s vulnerabilities is not properly understood or addressed. For example, a patient may be unable to make decisions surrounding their finances, care, medications, sharing their medical information with their family or managing tenancy agreements in the community, leading to them making very poor decisions in these areas. 

Lack of training impacting community care

Yet due to the lack of in-depth training on the MCA, patients may be treated by clinicians as though they are simply making unwise but capacitious decisions and sadly frequently receive little to no community care as soon as they are discharged from hospital. 

The patient’s families can tirelessly try to convey their vulnerability to services and develop mental health issues themselves because they are not medically trained or properly supported. Many patients don't have family members to look after them and so are in extremely precarious situations. 

Conveyor belt of admissions

In many cases, this inability to utilise existing law leads to a ‘conveyor belt’ admission where patients are discharged abruptly and without adequate community care support or family notification, they become dangerously unwell again in the community and need to be re-admitted back to hospital. In many other cases, a lack of proper mental health support can lead to patients becoming street homeless. 

Use of the Court of Protection

Traditionally, where a client within the Court of Protection needs to be detained under the MHA, the jurisdiction of the Court of Protection ends. Therefore, legal representatives would usually have to conclude or stay the court proceedings and/or re-issue the case when a person is due to be discharged into the community. 

Seeing the lack of proper care and support for mental health patients has led me to try to utilise the Court of Protection to have some oversight of a patient’s discharge to the community. This period of a patient being discharged to the community is crucial for a patient and can be the difference between them needing to be re-admitted or not. 

In view of this, even where a patient is detained under the MHA, bringing a case to the Court of Protection may be considered. Similarly, it may not be appropriate to conclude a case within the Court of Protection where a client has been admitted to hospital under the MHA because they may lose this court oversight at a critical time for the patient. 

Working with service providers to provide long-term community care

This oversight has yielded positive results for those clients detained under the MHA. Instead of threatening litigation such as a public law challenge or a claim for compensation under the Human Rights Act 1998, we're able to largely work collaboratively with public authorities with the aim of stabilising the client in the community on a long-term basis. 

It can also be helpful to obtain capacity assessments from independent consultant psychiatrists who have extensive training on the MCA, highlighting that the patient has an inability to make certain decisions from themselves. 

This won't remove but will reduce the risk of hospital readmission or fatalities. This will also reduce the pressures on health services and public expense. Most importantly, it will give mental health patients the best chance of being stable in the community, so that they and their families can further recovery and / or have the best quality of life possible.  

Therefore, whilst it has historically been an unattractive legal approach to utilise the Court of Protection in this way, for these patients it can be life changing.

Find out more about Irwin Mitchell's expertise in supporting patients and families affected by mental health and community care issues at our dedicated protecting your rights section.