Further Memorandum submitted by Alan Capps (MH 44)
1. The Government Research Paper (07/33) summary states the Bill introduces "Safeguards into the Mental Capacity Act 2005 for people with mental health problems who lack capacity to consent to care or treatment and who may effectively be detained in a hospital or a care home but not under the 1983 Act."
2. Part 2 of the Bill proposes amendments to the MCA 2005, (paragraph 47, deprivation of liberty). Section 4A and Schedule A1 lay down the procedure for this.
3. Part 1 is headed "AUTHORISATION TO DEPRIVE RESIDENTS OF LIBERTY ETC" and indicates the person is resident or will be. The remaining parts (42 pages), detail the process for granting an authorisation for deprivation of liberty. However there is no reference to any power to admit a person to residence in hospital or care home in comparison with Part 2 of the MHA (compulsory admission to hospital).
4. Schedule 1A entitled "PERSONS INELIGIBLE TO BE DEPRIVED OF LIBERTY BY THIS ACT" sets out such conditions. Paragraph 12 refers specifically to persons within the scope of the MHA. What is unclear is the purpose of the clause. Sub paragraph (1) states that P is within the scope of the MHA if an application could be made under section 2 or 3 of that Act. Subsection (2) states that subsections (3), (4) and (5) apply in the determination of whether an application can be made under sections 2 and 3 of the Act.
5. Subsections (3), (4) state the obvious that the criteria should be met for an application to be made. Subsection (5), however, sets out that it is assumed that the treatment to be provided, referred to in section 3(2)(c), cannot be provided under this Act (the MCA).
6. If the treatment to be provided could be given whilst the person is detained in hospital under the MCA (in the best interests of the patient who is authorised to be deprived of their liberty), the MHA is no longer required.
7. However the MHA, Part 2, entitled "Compulsory Admission to Hospital" permits the compulsory admission to hospital (if the criteria of the Act are met), whereas the MCA does not appear to do so. The Bournewood briefing sheet states that the provisions do not include any new powers to decide that a person should be accommodated in hospital or care home, nor any new power to take and convey people to hospital or care home.
8. Chapter 13 of the Code of Practice outlines the relationship between the MHA and MCA. In the quick summary it states that the professionals may need to think about using the MHA if "it is not possible to give the person the care or treatment they need without doing something that might deprive them of their liberty." Paragraph 13.12 states "It might be necessary to consider the MHA rather than the MCA if it is not possible to give the person the care or treatment they need without doing something that might deprive them of their liberty." It also states at Paragraph 13.15 "There will be some cases where a person who lacks capacity cannot be treated either under the MHA or the MCA - even if the treatment is for mental disorder." There is no clarity in the proposed draft guidance of how these issues are to be addressed
9. In summary there needs to be a drastic simplification of the Bill. I would ask the committee to consider whether or not the Mental Health Act criteria will be met if:
Dementia is a mental disorder that warrants "medical treatment" in hospital, which is "necessary for the health or safety of the patient", and that treatment includes care, nursing, habilitation or rehabilitation.
If they are not then a more simplistic approach would be to exclude dementia from the MHA. Perhaps this is what the Government wants!