May 30, 2025 • 21 mins
⚖️ FREE MSRA PODCAST – Mental Health Act & Mental Capacity Act Explained
🎧 Struggling to get your head around the MHA and MCA? This rapid, focused breakdown distils the absolute must-knows from your source material—perfect for MSRA exam revision or real-world clinical scenarios.
🧠 Key Learning Points
📌 Mental Health Act (MHA)
• Legal framework for assessment/treatment of mental disorder when a person cannot or will not consent.
• Excludes: Sole intoxication (alcohol/drugs) unless underlying disorder present.
• Core Sections:
– Section 2: Assessment (up to 28 days, non-renewable, AMHP + 2 doctors)
– Section 3: Treatment (initially up to 6 months, renewable, both doctors seen pt in 24h)
– Section 4: Emergency assessment (72h, GP + AMHP/relative, often converts to S2)
– Section 5(2): Doctor holds voluntary inpatient (up to 72h)
– Section 5(4): Nurse holds voluntary inpatient (up to 6h)
– Section 17A: Community Treatment Order (CTO) for safe management in community, with recall powers
– Section 135/136: Police powers – 135 (court order for private premises), 136 (public place, up to 24h in “place of safety”)
• Purpose: Safety, assessment, and treatment, grouped by function: hospital, holding, community, police.
📌 Mental Capacity Act (MCA) 2005
• Framework for supporting/protecting people (16+) who lack capacity for specific decisions.
• Applies to any decision—not just mental disorder (e.g., dementia, LD, delirium, severe mental illness affecting decision-making).
• Five Core Principles:
1. Presume capacity
2. Support to decide
3. Right to make unwise decisions
4. Best interests
5. Least restrictive intervention
(Mnemonic: PSUBL)
• Capacity Assessment:
– Decision- & time-specific
– Two stages: (1) Impairment of mind/brain? (2) Does it prevent understanding, retaining, using/weighing info, or communicating a choice?
– Failure on any one = lacks capacity for that decision
• Best Interests:
– Person-centred: Involve the person, consult family/carers, consider wishes, beliefs, and possible regaining of capacity
– Checklist in statute must be followed
• Key Legal Protections:
– Section 5: Protects carers acting in best interests for basic care/treatment
– Section 6: Allows proportionate restraint to prevent harm
– Section 5 does NOT cover ongoing deprivation of liberty
📌 Safeguards, Planning & Overlap
• Advance Decisions: Wishes considered; refusals (if valid/specific) are binding—even for life-sustaining treatment (extra formalities apply)
• Lasting Power of Attorney (LPA): Appoint attorneys for property/finance or health/welfare (active if capacity lost & registered)
• IMCA: Independent advocacy for major decisions when no family/friends
• Court-appointed deputies: Manage finances/welfare if no LPA
• Deprivation of Liberty Safeguards (DoLS): Legal authorisation for restricting liberty (not under MHA), for hospital/care home residents, via local authority/ICB
📌 Clinical Practice Tips
• Always apply the right Act to the right issue (e.g. MCA for treatment consent, MHA for compulsory treatment of mental disorder)
• Capacity is always decision-specific; revisit as needed
• Use scenarios to solidify understanding (e.g. dementia patient refusing treatment: assess capacity first, then apply best interests; use MHA for compulsory admission if also a
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
(00:00):
OK, so picture this. You've got this pile of notes.
Maybe you're studying, maybe you're preparing for, you know,
a tricky situation at work. And, you know, you have to get
your head around these really important laws, the Mental
Health Act and the Mental Capacity Act.
Yeah, it's pretty dense stuff, isn't?
It it really can feel like trying to find your way through
a maze. Yeah, you've got the key
(00:20):
documents, you've pulled out themain points, but how do you
actually turn all that information into something you
can use? Exactly.
And that's what we're trying to do today.
You've shared your source material on the MHA and the MCA
and we're going to, well, dive deep into it.
The aim here is to unpack the absolute must knows, focusing on
(00:41):
the high yield stuff that helps you understand these acts,
whether that's for, you know, clinical practise, exam revision
or just feeling properly informed.
Think of us as sort of guides. Through your notes, I'll help
pull out the key ideas and explain why they're important.
You know the context. And I'll make sure we hit all
those essential points you've highlighted.
We'll break it down logically, just like you would for
(01:02):
revision. Sound good?
Sounds like a plan. OK, let's start then.
First up, the Mental Health Act.Right, that MHA.
So looking at your sources, the Mental Health Act is essentially
the legal framework you use whensomeone needs assessment or
treatment for a mental disorder but they aren't able or willing
to consent to come into hospitalvoluntarily it.
(01:24):
Gives the legal basis for detention, right?
And for giving treatment even ifthey don't agree.
Precisely, and you flagged a really important exclusion right
at the beginning in your notes. It generally doesn't apply if
someone's presentation is only because they're under the
influence of alcohol or drugs. OK, that's a key distinction.
Why is that? Well the MHA is specifically
about mental disorder. Being intoxicated, while it
(01:47):
definitely changes someone's mental state, isn't usually seen
as a mental disorder under the ACT itself, unless there's an
underlying condition or maybe a dependency that needs MHA
treatment. Right.
Got it. Now your notes lay out all these
different sections of the ACT. They're like the specific tools
for different situations. Yeah, yeah, this is often where
it gets a bit confusing, I think.
Absolutely, but grouping them can help.
(02:09):
Maybe think about purpose. Let's look at the sections used
mainly for hospital assessment and treatment first.
OK. So Section 2, your sources say
this is for assessment, it's forup to 28 days and crucially, it
can't be renewed. That's right, non renewable.
And the application usually comes from an AMHP approved
(02:30):
mental health professional or sometimes the nearest relative
and it needs 2 doctors recommendations.
Yes, 2 doctors and one of them has to be section 12 approved,
meaning they've got specific expertise in MHA assessments.
And Section 2 allows for treatment during that time, even
against someone's wishes. It does, yeah.
If it's necessary for their health, their safety or, you
(02:51):
know, to protect other people, it gives the team time to
properly assess. OK.
Then building on that, if assessment under Section 2 shows
they need longer term compulsorytreatment, you might move to
Section 3. Your notes say this one is for
treatment. Correct, Section 3 is for
treatment. Initially it's for up to six
months, but this one can be renewed.
Right. And again, it involves an AIM HP
(03:12):
and two doctors, but the timing is different here, isn't it?
Your notes say both doctors needto have seen the patient within
24 hours for a Section 3. Yes, that's a key difference.
It reflects the need for a really current assessment before
you commit to longer term detention and treatment.
And that renewal process for Section 3 is also really
important. It forces a regular review to
(03:32):
check if detention is still needed.
OK. What about emergencies?
Your notes mentioned Section 4. That's an emergency assessment
order, 72 hours. Exactly.
You use it when waiting for a full intent Section 2 assessment
would cause an unacceptable delay.
It can be initiated by AGP plus an AMHP or nearest relative.
(03:53):
And often it gets converted to aSection 2 once the person
arrives at a hospital or places safety.
That's typically what happens, yes.
Section 4 is really just a rapidway to get someone to safety for
that proper assessment. It's very short term.
OK, now what if someone's already in hospital voluntarily,
but then they try to leave and the team's worried?
Your notes cover holding powers inside the hospital, Section
5/2. Yes, Section 5, subsection 2,
(04:16):
that allows a doctor, the one incharge of the patient's care or
their nominated deputy to detaina voluntary inpatient for up to
72 hours. And that gives time to sort out
a proper MHA assessment like a Section 2.
Precisely, it buys that crucial time if the team thinks the
person meets the criteria for detention and isn't safe to just
walk out. And then there's Section 5 four.
(04:37):
That's a shorter holding power, just six hours.
And it's for nurses. That's right, it lets a suitably
qualified nurse stop a voluntarypatient from leaving the ward
for up to six hours. Again, it's about immediate
safety and giving time for a doctor to come and assess,
potentially use 5/2 or arrange. The MHA assessment recognises
the nurses role right there on the ground.
Makes sense. OK, shifting focus now outside
(04:59):
the hospital walls, your notes mentioned section 17A,
Supervised community treatment or CTO.
What's the idea here? CTO's community treatment
orders. They allow patients who've been
under certain MHA sections like Section 3 to be discharged back
into the community, but they remain formally under Section.
So it helps manage risk after discharge.
Yeah, that's the main goal. The key power is recall.
(05:21):
If the patient doesn't stick to the conditions of their CTO,
like taking meds or attending appointments, and that increases
their risk, they can be recalledto hospital for treatment.
OK. And finally, the police powers
you noted Section 135 requires acourt order.
Yes, Section 135 allows police with a warrant from a magistrate
to enter private property using force if needed, to remove
(05:44):
someone thought to have a mentaldisorder and take them to a
place of safety for assessment. So that's for when concerns
arise about someone behind closed doors.
Exactly when access is needed for an assessment and can't be
gained otherwise, the warrant provides that legal authority.
And Section 136, that's for public places.
Correct. If police find someone in a
public place who seems to have amental disorder and needs
(06:06):
immediate care or control, Section 136 allows them to take
that person to a place of safety.
Your source mentions this detention can last up to 24
hours while an MHA assessment isarranged.
So again, a temporary measure toget someone safe and assessed.
Precisely the place of safety could be an Annie or ideally, A
dedicated mental health suite. That's a really clear run
(06:27):
through of those MHA sections and thinking about them grouped
by function. Hospital holding community
police definitely seems like a good way to revise them.
Makes the numbers less abstract.It does help I think
understanding the why and when for each section is key, not
just the number itself. OK, let's completely shift gears
now. Let's look at the other big
piece of legislation in your notes, the Mental Capacity Act,
(06:50):
MCA 2005. Right.
The MCA, it's a totally different beast.
Although sometimes, you know, they do interact.
The MCA is a statutory frameworkdesigned to empower and protect
people aged 16 and over who can't make specific decisions
for themselves. This is of some impairment of
their mind or brain. Exactly.
It clarifies how decisions should be made for them and who
(07:11):
should make them. So it's much broader than the
MHA. The MHA is specifically about
mental disorder and compulsory treatment.
Whereas the MCA applies wheneversomeone lacks capacity to make
any kind of decision that could be due to dementia, a learning
disability, brain injury, delirium, even severe mental
illness, if that illness impactstheir ability to make that
(07:32):
particular decision. Right, and it's interesting your
sources mentioned reviews of theACT found that while the law
itself is OK in practise, well, there have been negative
experiences. Decisions haven't always
followed the principles. Yeah, and awareness seems
limited sometimes, which really underlines why getting to grips
with this is so important. If it's not applied correctly,
(07:53):
people's rights can just, you know, go out the window.
So getting it right is crucial. And the foundation, according to
your notes, is these 5 core principles.
They're non negotiable. Yeah.
So it'll be fundamental. Everything else flows from them.
Let's quickly list them. First, presumption of capacity.
Always assume someone has capacity unless proven
otherwise. Yep, start there.
(08:14):
Don't jump to conclusions based on age, diagnosis, appearance,
whatever. The onus is on proving lack of
capacity. Second, support to make own
decisions. You have to give all practical
help before deciding someone can't make the decision.
This is so important. It means actively trying, using
simple language, pictures, translators involving family,
(08:36):
choosing the right time, anything reasonable.
You only assess capacity after you've tried to support them.
3rd Right to make unwise decisions.
Just because a decision seems unwise to us doesn't mean the
person lacks capacity to make it.
This one can be tough in practise.
Can it? People with capacity are allowed
to make decisions others disagree with, even risky ones.
(08:57):
Yeah, I could see that. 4th bestinterests.
Anything done for someone without capacity must be in
their best interests. This is the guiding star.
Once you've established lack of capacity.
It's about what's best for them specifically, not what's easiest
for everyone else. And 5th.
Least restrictive intervention. Anything done should restrict
the person's rights and freedom as little as possible.
(09:19):
Absolutely find the minimum necessary interference to
achieve what's needed in their best interests.
So those five presume support unwise best interests, least
restrictive PSUBL. Maybe?
Remembering those is vital because they underpin everything
in the MCA. Don't.
They they really do. They're the ethical and legal
core. OK, so how do you actually
(09:39):
assess capacity? Your notes layout a test and you
stressed it's decision specific and time specific.
Absolutely critical points. Capacity isn't a blanket thing,
it's about this particular decision right now.
Someone might have capacity for deciding what to wear, but not
complex finances. And capacity can fluctuate, like
with delirium. And like you said, it's not
(10:00):
based on the diagnosis itself orage or how someone looks or
behaves. The test itself has two stages,
right? Stage 1.
Is there an impairment of or disturbance in the functioning
of the mind or brain? Yes, that's the diagnostic bit.
Is there something affecting their brain function?
Dementia, Stroke, learning disability, acute confusion,
severe depression. And stage 2, does that
(10:21):
impairment or disturbance mean the person is unable to make
this specific decision at this time?
This is the functional part. The impairment has to be the
reason they can't make the decision, and to be able to make
it, your sources say they need to do 4 things.
OK, what are they? First understand the relevant
information? Yep.
Understand the pros, cons, alternatives. 2nd retain that
(10:44):
information long enough to make the choice.
Even if just for a short period.Third.
Use or weigh the information as part of deciding.
So actually process it. Consider the consequences.
And 4th communicate their decision by any means.
Talking sign language blinking. Exactly.
Understand, retain, use way, communicate.
(11:04):
If the impairment means they can't do any one of those 4 for
that specific decision, then they lack capacity for it.
You really need to remember those four.
That's the core of the functional test.
Got it. Understand retain, use way,
communicate. That's the checklist.
Pretty much, yeah. So if someone lacks capacity for
a decision, the best interest principle kicks in, and your
notes mentioned a checklist in the act itself for working out
(11:27):
best interests. Yes, decision makers must work
through these factors. It's not optional.
You have to involve the person as much as possible.
You have to consider their past and present wishes, feelings,
beliefs, values. And you have to consult others,
right? Carers family Your notes say
they have a right to be consulted.
They do, yes, anyone involved intheir care or interested in
(11:47):
their welfare. You also mustn't make
assumptions based on age or appearance.
And you need to think, might they regain capacity later?
If so, could the decision wait? Following that checklist seems
crucial to making sure the decision is genuinely person
centred. It is.
It's the safeguard against just doing what seems convenient, OK?
(12:07):
Your notes also mentioned Section 5 of the MCA acts in
connection with care or treatment.
What's that about? Section 5.
It basically provides legal protection for carers and
professionals when they're doingnecessary day-to-day care for
someone who lacks capacity. Things like helping wash your
dress, giving medication, managing small amounts of money.
(12:27):
Things that would normally consent.
Exactly. Section 5 offers a defence
against claims like battery or theft, but only if the carer
reasonably believed the person lacked capacity and that the act
was in their best interests. And crucially, the MCA
principles have to be followed. Your source also mentions the
new criminal offence of ill treatment or neglect under the
MCA, which adds more weight. OK, what about restraint?
(12:50):
That's covered under section 6 you noted.
Yes, Section 6 deals with restraint.
It defines it quite broadly, using force or threatening it if
the person resists, or restricting their liberty of
movement whether they resist or not.
And when is it allowed? Only if the carer reasonably
believes it's necessary to prevent harm to the person who
lacks capacity, and the amount or type of restraint used is
(13:11):
proportionate to how likely and how serious that harm is.
Proportionate. That's key, and your sources
highlight something really important here.
Section 5. Protection does not cover acts
that deprive someone of their liberty.
A vital distinction Brief proportionate restraint to
prevent immediate harm might fall under Section 6 and be
covered by Section 5 Defence. But ongoing restrictions like
(13:33):
locking doors to stop someone leaving, or constant supervision
meaning they're not free to leave.
That's likely a deprivation of liberty.
Which needs separate authorization.
Exactly. Which brings us nicely onto some
of the other MCA tools and safeguards for more complex
situations, future planning, and, yes, deprivation of
liberty. Let's start with advanced care
(13:54):
planning. Right, Advanced care planning.
Your notes say this replaced advanced directives.
Yeah, it allows someone aged 18 + F while they have capacity to
make decisions about future healthcare in case they lose
capacity later. And the key point from your
notes seems to be the differencebetween wishes and refusals.
Wishes for treatment are considered, but not legally
binding. But a valid, applicable refusal
(14:16):
of treatment is legally binding.Even if it seems not in their
best interest at the time. Correct.
A valid, advanced it's refusal overrides the best interests
principle for that specific treatment and for refusals of
life sustaining treatment there are extra rules must be written,
signed, witnessed and state clearly it applies even if life
is at risk. And your source notes they can
(14:38):
become invalid if the person changes their mind with capacity
or if say, an OPA covers the same decision.
Right. And ignoring a valid refusal is
serious. Your notes mentioned potential
claims like battery or assault. It really shows the power of
exams decisions. OK what about planning who makes
decisions for you? Lasting Powers of Attorney, LP
(14:58):
as. LP as yes, someone 18 or over
with capacity can appoint one ormore attorneys to make decisions
for them if they lose capacity later.
Two types, one for property and financial affairs.
And one for health and welfare. Exactly, but they only become
active if the person loses capacity and the LPA has been
registered with the Office of the Public Guardian.
Registration is key then, so it's a way to choose your
(15:20):
decision maker in advance. It is a very important planning
tool. OK.
Next up in your notes, the Independent Mental Capacity
Advocate or IMCA, who are they? IMCA's are independent
professionals. Their role is to support and
represent people who lack capacity to make certain major
decisions and who don't have anyappropriate family or friends to
(15:40):
speak up for them. They ensure the person's voice
is heard. And your notes are specific
about when they must be involved.
For someone lacking capacity, with no one else suitable to
consult, that includes decisionsabout serious medical treatment.
Yes, serious medical treatment. Also hospital stays planned for
longer than 28 days or changes in accommodation like moving to
(16:00):
a care home planned for longer than 8 weeks.
So specific triggers for mandatory involvement if there's
no one else. Right.
And there are other times they can be involved, like care
reviews or safeguarding cases, and times they're not needed
like emergencies or if the person already has good support.
That list of when they are and aren't needed is really
practical. What about research?
(16:21):
Can people who lack capacity be involved in research?
Your notes cover this. Yes, but under very strict
conditions an Ethics Committee has to approve it.
They check it's safe, related tothe person's condition.
Couldn't be done as well with people who do have capacity and
the benefit outweighs the risk. Or it's minimal risk.
Research for new knowledge. And consultation is needed and
(16:44):
they must be withdrawn if they show resistance.
Absolutely, consultation with carers or a nominated person is
vital. And yes, any sign of objection
from the person themselves meansthey must be withdrawn
immediately. It's all about protecting them
while allowing vital research tohappen.
OK. Then there are court appointed
deputies. Your notes say this replaced the
(17:05):
old receivership system via the Court of Protection.
That's right, if someone lacks capacity for ongoing decisions
and hasn't made an LPA, the Court of Protection can appoint
a deputy. They can manage finances, make
welfare decisions. But interestingly, your notes
point out they cannot refuse consent to life sustaining
treatment for the person. Right.
And the Court of Protection itself, that's the overarching
(17:26):
body. Yes, it has jurisdiction over
the whole MCA. It's the final arbiter on
capacity disputes, best interestdecisions in complex cases, and
it appoints the deputies and thepublic guardian supervises
deputies and attorneys. OK, Last big topic under the MCA
in your notes, and it sounds complex, deprivation of liberty
safeguards doles, you know that these are an amendment to the
(17:49):
MCA. Yeah, Doles came about because
of court rulings. Essentially, it provides the
legal framework and safeguards for depriving someone of their
liberty if they're 18 or over ina hospital or care home, lack
capacity to consent to being there and the arrangements, and
that deprivation is considered necessary and in their best
interests. Crucially, this applies when
(18:10):
they're not detained under the Mental Health Act.
So it fills a gap for people restricted in care settings who
aren't under the MHA. Exactly.
It's about ensuring those restrictions, which amount to a
deprivation of liberty, have proper legal authorization and
independent cheques. And the process involves the
hospital or care home applying to a supervisory body like the
local authority or maybe the ICBnow for authorization.
(18:31):
Yes, that's the mechanism they have to apply for authorization.
An unauthorised deprivation of liberty isn't lawful under the
MCA unless it's specifically ordered by the Court of
Protection. And your notes mentioned doctors
needing specific training for Dole's assessments and that it's
often not seen as core GP work needing payment agreements.
Sounds like it has real practical implications.
(18:52):
It's definitely a complex area, both legally and practically.
The authorization process involves independent assessments
to ensure the criteria are met and the person's rights are
protected. Wow.
OK. We've covered a huge amount.
They're pulling from your detailed notes, the MHA with its
sections for compulsory detention and treatment for
mental disorder, and then the much broader MCA covering
(19:12):
decision making capacity for anyimpairment, focusing on those
five principles, the assessment test best interest and all those
tools like Advanced Decisions LPas IMCAS and Doles.
Yeah, bringing it together. Maj is primarily about detention
and compulsory treatment for mental disorder.
MCA is about empowering and protecting people who lack
capacity for any reason. Focusing on support, best
(19:36):
interests, least restriction. They're distinct, but they can
overlap or interact which needs careful handling.
For instance, doll supplies because someone isn't under the
MHA. Right.
To really make this stick, maybetry thinking through a scenario.
What if you had, say, an older patient with dementia who's
refusing treatment for a seriousinfection?
(19:58):
First step would be the MCA. Wouldn't it assess capacity
using those four points? Understand, retain way,
communicate. Absolutely start with MCA
capacity assessment for that specific decision about
infection treatment. Presume capacity support them
use the test. And if they lacked capacity for
that decision, then you'd move to a best interest decision
involving family considering their wishes.
(20:18):
Exactly. Now, if that same patient was
also, say, severely depressed test and actively suicidal due
to that depression, then the MHAmight become relevant for
assessing and treating the mental disorder, potentially
leading to detention if needed. So you might be using both acts
for different aspects of their care.
You might, yeah. It shows how you need to apply
the right framework to the rightissue.
(20:38):
Thinking through examples like that really helps connect the
dots. And maybe a final thought to
chew on How do these acts reallybalance things, you know,
protecting vulnerable people versus upholding their rights
and autonomy even when their ability to decide is impaired?
That's the constant tightrope walk in practise, isn't it?
It's a huge ethical and legal challenge that healthcare
(21:00):
professionals face everyday. There aren't always easy
answers. No, definitely not.
Well, that brings us to the end of this deep dive into your
source material on the Mental Health Act and Mental Capacity
Act. Thank you for walking us through
all that important information. My pleasure.
Getting these acts right is justso fundamental to good ethical
care. Absolutely, and if you listening
(21:21):
or using notes like these for revision or just want to test
yourself on topics like this, you might find resources like
pass the mess ray.com and Free mess ray.com really useful for
more practise questions and study materials.
Yeah, definitely worth checking out if you're prepping for exams
or just want to solidify this kind of knowledge.
OK, until our next deep dive then keep exploring these
(21:42):
important subjects.
OK, so picture this. You've got this pile of notes.
Maybe you're studying, maybe you're preparing for, you know,
a tricky situation at work. And, you know, you have to get
your head around these really important laws, the Mental
Health Act and the Mental Capacity Act.
Yeah, it's pretty dense stuff, isn't?
It it really can feel like trying to find your way through
a maze. Yeah, you've got the key
(00:20):
documents, you've pulled out themain points, but how do you
actually turn all that information into something you
can use? Exactly.
And that's what we're trying to do today.
You've shared your source material on the MHA and the MCA
and we're going to, well, dive deep into it.
The aim here is to unpack the absolute must knows, focusing on
(00:41):
the high yield stuff that helps you understand these acts,
whether that's for, you know, clinical practise, exam revision
or just feeling properly informed.
Think of us as sort of guides. Through your notes, I'll help
pull out the key ideas and explain why they're important.
You know the context. And I'll make sure we hit all
those essential points you've highlighted.
We'll break it down logically, just like you would for
(01:02):
revision. Sound good?
Sounds like a plan. OK, let's start then.
First up, the Mental Health Act.Right, that MHA.
So looking at your sources, the Mental Health Act is essentially
the legal framework you use whensomeone needs assessment or
treatment for a mental disorder but they aren't able or willing
to consent to come into hospitalvoluntarily it.
(01:24):
Gives the legal basis for detention, right?
And for giving treatment even ifthey don't agree.
Precisely, and you flagged a really important exclusion right
at the beginning in your notes. It generally doesn't apply if
someone's presentation is only because they're under the
influence of alcohol or drugs. OK, that's a key distinction.
Why is that? Well the MHA is specifically
about mental disorder. Being intoxicated, while it
(01:47):
definitely changes someone's mental state, isn't usually seen
as a mental disorder under the ACT itself, unless there's an
underlying condition or maybe a dependency that needs MHA
treatment. Right.
Got it. Now your notes lay out all these
different sections of the ACT. They're like the specific tools
for different situations. Yeah, yeah, this is often where
it gets a bit confusing, I think.
Absolutely, but grouping them can help.
(02:09):
Maybe think about purpose. Let's look at the sections used
mainly for hospital assessment and treatment first.
OK. So Section 2, your sources say
this is for assessment, it's forup to 28 days and crucially, it
can't be renewed. That's right, non renewable.
And the application usually comes from an AMHP approved
(02:30):
mental health professional or sometimes the nearest relative
and it needs 2 doctors recommendations.
Yes, 2 doctors and one of them has to be section 12 approved,
meaning they've got specific expertise in MHA assessments.
And Section 2 allows for treatment during that time, even
against someone's wishes. It does, yeah.
If it's necessary for their health, their safety or, you
(02:51):
know, to protect other people, it gives the team time to
properly assess. OK.
Then building on that, if assessment under Section 2 shows
they need longer term compulsorytreatment, you might move to
Section 3. Your notes say this one is for
treatment. Correct, Section 3 is for
treatment. Initially it's for up to six
months, but this one can be renewed.
Right. And again, it involves an AIM HP
(03:12):
and two doctors, but the timing is different here, isn't it?
Your notes say both doctors needto have seen the patient within
24 hours for a Section 3. Yes, that's a key difference.
It reflects the need for a really current assessment before
you commit to longer term detention and treatment.
And that renewal process for Section 3 is also really
important. It forces a regular review to
(03:32):
check if detention is still needed.
OK. What about emergencies?
Your notes mentioned Section 4. That's an emergency assessment
order, 72 hours. Exactly.
You use it when waiting for a full intent Section 2 assessment
would cause an unacceptable delay.
It can be initiated by AGP plus an AMHP or nearest relative.
(03:53):
And often it gets converted to aSection 2 once the person
arrives at a hospital or places safety.
That's typically what happens, yes.
Section 4 is really just a rapidway to get someone to safety for
that proper assessment. It's very short term.
OK, now what if someone's already in hospital voluntarily,
but then they try to leave and the team's worried?
Your notes cover holding powers inside the hospital, Section
5/2. Yes, Section 5, subsection 2,
(04:16):
that allows a doctor, the one incharge of the patient's care or
their nominated deputy to detaina voluntary inpatient for up to
72 hours. And that gives time to sort out
a proper MHA assessment like a Section 2.
Precisely, it buys that crucial time if the team thinks the
person meets the criteria for detention and isn't safe to just
walk out. And then there's Section 5 four.
(04:37):
That's a shorter holding power, just six hours.
And it's for nurses. That's right, it lets a suitably
qualified nurse stop a voluntarypatient from leaving the ward
for up to six hours. Again, it's about immediate
safety and giving time for a doctor to come and assess,
potentially use 5/2 or arrange. The MHA assessment recognises
the nurses role right there on the ground.
Makes sense. OK, shifting focus now outside
(04:59):
the hospital walls, your notes mentioned section 17A,
Supervised community treatment or CTO.
What's the idea here? CTO's community treatment
orders. They allow patients who've been
under certain MHA sections like Section 3 to be discharged back
into the community, but they remain formally under Section.
So it helps manage risk after discharge.
Yeah, that's the main goal. The key power is recall.
(05:21):
If the patient doesn't stick to the conditions of their CTO,
like taking meds or attending appointments, and that increases
their risk, they can be recalledto hospital for treatment.
OK. And finally, the police powers
you noted Section 135 requires acourt order.
Yes, Section 135 allows police with a warrant from a magistrate
to enter private property using force if needed, to remove
(05:44):
someone thought to have a mentaldisorder and take them to a
place of safety for assessment. So that's for when concerns
arise about someone behind closed doors.
Exactly when access is needed for an assessment and can't be
gained otherwise, the warrant provides that legal authority.
And Section 136, that's for public places.
Correct. If police find someone in a
public place who seems to have amental disorder and needs
(06:06):
immediate care or control, Section 136 allows them to take
that person to a place of safety.
Your source mentions this detention can last up to 24
hours while an MHA assessment isarranged.
So again, a temporary measure toget someone safe and assessed.
Precisely the place of safety could be an Annie or ideally, A
dedicated mental health suite. That's a really clear run
(06:27):
through of those MHA sections and thinking about them grouped
by function. Hospital holding community
police definitely seems like a good way to revise them.
Makes the numbers less abstract.It does help I think
understanding the why and when for each section is key, not
just the number itself. OK, let's completely shift gears
now. Let's look at the other big
piece of legislation in your notes, the Mental Capacity Act,
(06:50):
MCA 2005. Right.
The MCA, it's a totally different beast.
Although sometimes, you know, they do interact.
The MCA is a statutory frameworkdesigned to empower and protect
people aged 16 and over who can't make specific decisions
for themselves. This is of some impairment of
their mind or brain. Exactly.
It clarifies how decisions should be made for them and who
(07:11):
should make them. So it's much broader than the
MHA. The MHA is specifically about
mental disorder and compulsory treatment.
Whereas the MCA applies wheneversomeone lacks capacity to make
any kind of decision that could be due to dementia, a learning
disability, brain injury, delirium, even severe mental
illness, if that illness impactstheir ability to make that
(07:32):
particular decision. Right, and it's interesting your
sources mentioned reviews of theACT found that while the law
itself is OK in practise, well, there have been negative
experiences. Decisions haven't always
followed the principles. Yeah, and awareness seems
limited sometimes, which really underlines why getting to grips
with this is so important. If it's not applied correctly,
(07:53):
people's rights can just, you know, go out the window.
So getting it right is crucial. And the foundation, according to
your notes, is these 5 core principles.
They're non negotiable. Yeah.
So it'll be fundamental. Everything else flows from them.
Let's quickly list them. First, presumption of capacity.
Always assume someone has capacity unless proven
otherwise. Yep, start there.
(08:14):
Don't jump to conclusions based on age, diagnosis, appearance,
whatever. The onus is on proving lack of
capacity. Second, support to make own
decisions. You have to give all practical
help before deciding someone can't make the decision.
This is so important. It means actively trying, using
simple language, pictures, translators involving family,
(08:36):
choosing the right time, anything reasonable.
You only assess capacity after you've tried to support them.
3rd Right to make unwise decisions.
Just because a decision seems unwise to us doesn't mean the
person lacks capacity to make it.
This one can be tough in practise.
Can it? People with capacity are allowed
to make decisions others disagree with, even risky ones.
(08:57):
Yeah, I could see that. 4th bestinterests.
Anything done for someone without capacity must be in
their best interests. This is the guiding star.
Once you've established lack of capacity.
It's about what's best for them specifically, not what's easiest
for everyone else. And 5th.
Least restrictive intervention. Anything done should restrict
the person's rights and freedom as little as possible.
(09:19):
Absolutely find the minimum necessary interference to
achieve what's needed in their best interests.
So those five presume support unwise best interests, least
restrictive PSUBL. Maybe?
Remembering those is vital because they underpin everything
in the MCA. Don't.
They they really do. They're the ethical and legal
core. OK, so how do you actually
(09:39):
assess capacity? Your notes layout a test and you
stressed it's decision specific and time specific.
Absolutely critical points. Capacity isn't a blanket thing,
it's about this particular decision right now.
Someone might have capacity for deciding what to wear, but not
complex finances. And capacity can fluctuate, like
with delirium. And like you said, it's not
(10:00):
based on the diagnosis itself orage or how someone looks or
behaves. The test itself has two stages,
right? Stage 1.
Is there an impairment of or disturbance in the functioning
of the mind or brain? Yes, that's the diagnostic bit.
Is there something affecting their brain function?
Dementia, Stroke, learning disability, acute confusion,
severe depression. And stage 2, does that
(10:21):
impairment or disturbance mean the person is unable to make
this specific decision at this time?
This is the functional part. The impairment has to be the
reason they can't make the decision, and to be able to make
it, your sources say they need to do 4 things.
OK, what are they? First understand the relevant
information? Yep.
Understand the pros, cons, alternatives. 2nd retain that
(10:44):
information long enough to make the choice.
Even if just for a short period.Third.
Use or weigh the information as part of deciding.
So actually process it. Consider the consequences.
And 4th communicate their decision by any means.
Talking sign language blinking. Exactly.
Understand, retain, use way, communicate.
(11:04):
If the impairment means they can't do any one of those 4 for
that specific decision, then they lack capacity for it.
You really need to remember those four.
That's the core of the functional test.
Got it. Understand retain, use way,
communicate. That's the checklist.
Pretty much, yeah. So if someone lacks capacity for
a decision, the best interest principle kicks in, and your
notes mentioned a checklist in the act itself for working out
(11:27):
best interests. Yes, decision makers must work
through these factors. It's not optional.
You have to involve the person as much as possible.
You have to consider their past and present wishes, feelings,
beliefs, values. And you have to consult others,
right? Carers family Your notes say
they have a right to be consulted.
They do, yes, anyone involved intheir care or interested in
(11:47):
their welfare. You also mustn't make
assumptions based on age or appearance.
And you need to think, might they regain capacity later?
If so, could the decision wait? Following that checklist seems
crucial to making sure the decision is genuinely person
centred. It is.
It's the safeguard against just doing what seems convenient, OK?
(12:07):
Your notes also mentioned Section 5 of the MCA acts in
connection with care or treatment.
What's that about? Section 5.
It basically provides legal protection for carers and
professionals when they're doingnecessary day-to-day care for
someone who lacks capacity. Things like helping wash your
dress, giving medication, managing small amounts of money.
(12:27):
Things that would normally consent.
Exactly. Section 5 offers a defence
against claims like battery or theft, but only if the carer
reasonably believed the person lacked capacity and that the act
was in their best interests. And crucially, the MCA
principles have to be followed. Your source also mentions the
new criminal offence of ill treatment or neglect under the
MCA, which adds more weight. OK, what about restraint?
(12:50):
That's covered under section 6 you noted.
Yes, Section 6 deals with restraint.
It defines it quite broadly, using force or threatening it if
the person resists, or restricting their liberty of
movement whether they resist or not.
And when is it allowed? Only if the carer reasonably
believes it's necessary to prevent harm to the person who
lacks capacity, and the amount or type of restraint used is
(13:11):
proportionate to how likely and how serious that harm is.
Proportionate. That's key, and your sources
highlight something really important here.
Section 5. Protection does not cover acts
that deprive someone of their liberty.
A vital distinction Brief proportionate restraint to
prevent immediate harm might fall under Section 6 and be
covered by Section 5 Defence. But ongoing restrictions like
(13:33):
locking doors to stop someone leaving, or constant supervision
meaning they're not free to leave.
That's likely a deprivation of liberty.
Which needs separate authorization.
Exactly. Which brings us nicely onto some
of the other MCA tools and safeguards for more complex
situations, future planning, and, yes, deprivation of
liberty. Let's start with advanced care
(13:54):
planning. Right, Advanced care planning.
Your notes say this replaced advanced directives.
Yeah, it allows someone aged 18 + F while they have capacity to
make decisions about future healthcare in case they lose
capacity later. And the key point from your
notes seems to be the differencebetween wishes and refusals.
Wishes for treatment are considered, but not legally
binding. But a valid, applicable refusal
(14:16):
of treatment is legally binding.Even if it seems not in their
best interest at the time. Correct.
A valid, advanced it's refusal overrides the best interests
principle for that specific treatment and for refusals of
life sustaining treatment there are extra rules must be written,
signed, witnessed and state clearly it applies even if life
is at risk. And your source notes they can
(14:38):
become invalid if the person changes their mind with capacity
or if say, an OPA covers the same decision.
Right. And ignoring a valid refusal is
serious. Your notes mentioned potential
claims like battery or assault. It really shows the power of
exams decisions. OK what about planning who makes
decisions for you? Lasting Powers of Attorney, LP
(14:58):
as. LP as yes, someone 18 or over
with capacity can appoint one ormore attorneys to make decisions
for them if they lose capacity later.
Two types, one for property and financial affairs.
And one for health and welfare. Exactly, but they only become
active if the person loses capacity and the LPA has been
registered with the Office of the Public Guardian.
Registration is key then, so it's a way to choose your
(15:20):
decision maker in advance. It is a very important planning
tool. OK.
Next up in your notes, the Independent Mental Capacity
Advocate or IMCA, who are they? IMCA's are independent
professionals. Their role is to support and
represent people who lack capacity to make certain major
decisions and who don't have anyappropriate family or friends to
(15:40):
speak up for them. They ensure the person's voice
is heard. And your notes are specific
about when they must be involved.
For someone lacking capacity, with no one else suitable to
consult, that includes decisionsabout serious medical treatment.
Yes, serious medical treatment. Also hospital stays planned for
longer than 28 days or changes in accommodation like moving to
(16:00):
a care home planned for longer than 8 weeks.
So specific triggers for mandatory involvement if there's
no one else. Right.
And there are other times they can be involved, like care
reviews or safeguarding cases, and times they're not needed
like emergencies or if the person already has good support.
That list of when they are and aren't needed is really
practical. What about research?
(16:21):
Can people who lack capacity be involved in research?
Your notes cover this. Yes, but under very strict
conditions an Ethics Committee has to approve it.
They check it's safe, related tothe person's condition.
Couldn't be done as well with people who do have capacity and
the benefit outweighs the risk. Or it's minimal risk.
Research for new knowledge. And consultation is needed and
(16:44):
they must be withdrawn if they show resistance.
Absolutely, consultation with carers or a nominated person is
vital. And yes, any sign of objection
from the person themselves meansthey must be withdrawn
immediately. It's all about protecting them
while allowing vital research tohappen.
OK. Then there are court appointed
deputies. Your notes say this replaced the
(17:05):
old receivership system via the Court of Protection.
That's right, if someone lacks capacity for ongoing decisions
and hasn't made an LPA, the Court of Protection can appoint
a deputy. They can manage finances, make
welfare decisions. But interestingly, your notes
point out they cannot refuse consent to life sustaining
treatment for the person. Right.
And the Court of Protection itself, that's the overarching
(17:26):
body. Yes, it has jurisdiction over
the whole MCA. It's the final arbiter on
capacity disputes, best interestdecisions in complex cases, and
it appoints the deputies and thepublic guardian supervises
deputies and attorneys. OK, Last big topic under the MCA
in your notes, and it sounds complex, deprivation of liberty
safeguards doles, you know that these are an amendment to the
(17:49):
MCA. Yeah, Doles came about because
of court rulings. Essentially, it provides the
legal framework and safeguards for depriving someone of their
liberty if they're 18 or over ina hospital or care home, lack
capacity to consent to being there and the arrangements, and
that deprivation is considered necessary and in their best
interests. Crucially, this applies when
(18:10):
they're not detained under the Mental Health Act.
So it fills a gap for people restricted in care settings who
aren't under the MHA. Exactly.
It's about ensuring those restrictions, which amount to a
deprivation of liberty, have proper legal authorization and
independent cheques. And the process involves the
hospital or care home applying to a supervisory body like the
local authority or maybe the ICBnow for authorization.
(18:31):
Yes, that's the mechanism they have to apply for authorization.
An unauthorised deprivation of liberty isn't lawful under the
MCA unless it's specifically ordered by the Court of
Protection. And your notes mentioned doctors
needing specific training for Dole's assessments and that it's
often not seen as core GP work needing payment agreements.
Sounds like it has real practical implications.
(18:52):
It's definitely a complex area, both legally and practically.
The authorization process involves independent assessments
to ensure the criteria are met and the person's rights are
protected. Wow.
OK. We've covered a huge amount.
They're pulling from your detailed notes, the MHA with its
sections for compulsory detention and treatment for
mental disorder, and then the much broader MCA covering
(19:12):
decision making capacity for anyimpairment, focusing on those
five principles, the assessment test best interest and all those
tools like Advanced Decisions LPas IMCAS and Doles.
Yeah, bringing it together. Maj is primarily about detention
and compulsory treatment for mental disorder.
MCA is about empowering and protecting people who lack
capacity for any reason. Focusing on support, best
(19:36):
interests, least restriction. They're distinct, but they can
overlap or interact which needs careful handling.
For instance, doll supplies because someone isn't under the
MHA. Right.
To really make this stick, maybetry thinking through a scenario.
What if you had, say, an older patient with dementia who's
refusing treatment for a seriousinfection?
(19:58):
First step would be the MCA. Wouldn't it assess capacity
using those four points? Understand, retain way,
communicate. Absolutely start with MCA
capacity assessment for that specific decision about
infection treatment. Presume capacity support them
use the test. And if they lacked capacity for
that decision, then you'd move to a best interest decision
involving family considering their wishes.
(20:18):
Exactly. Now, if that same patient was
also, say, severely depressed test and actively suicidal due
to that depression, then the MHAmight become relevant for
assessing and treating the mental disorder, potentially
leading to detention if needed. So you might be using both acts
for different aspects of their care.
You might, yeah. It shows how you need to apply
the right framework to the rightissue.
(20:38):
Thinking through examples like that really helps connect the
dots. And maybe a final thought to
chew on How do these acts reallybalance things, you know,
protecting vulnerable people versus upholding their rights
and autonomy even when their ability to decide is impaired?
That's the constant tightrope walk in practise, isn't it?
It's a huge ethical and legal challenge that healthcare
(21:00):
professionals face everyday. There aren't always easy
answers. No, definitely not.
Well, that brings us to the end of this deep dive into your
source material on the Mental Health Act and Mental Capacity
Act. Thank you for walking us through
all that important information. My pleasure.
Getting these acts right is justso fundamental to good ethical
care. Absolutely, and if you listening
(21:21):
or using notes like these for revision or just want to test
yourself on topics like this, you might find resources like
pass the mess ray.com and Free mess ray.com really useful for
more practise questions and study materials.
Yeah, definitely worth checking out if you're prepping for exams
or just want to solidify this kind of knowledge.
OK, until our next deep dive then keep exploring these
(21:42):
important subjects.
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