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legal: mental health

To put it as simply as possible, the MCA
is basically a legal overflow system for
populations who have for various reasons
been ousted from the MHA.
This includes some people with learning
disabilities (and autism, if this proposal is
adopted), but it can also be true for other
groups, for example, people with
dementia or those with brain injuries.
If a clinician deems it as being in a
person’s best interests to be in hospital
for whatever reason and if the person
cannot consent to this, the MCA DoLS can
be used to detain them.
Another example is that a person who
has been detained under the MHA then
discharged by a mental health tribunal
because they do not meet the MHA’s
criteria for detention cannot then be
re-detained under the MHA. However, it
seems they can then become eligible for
detention under the MCA DoLS instead.
So the same person could then be A home, not a hospital: under proposed changes to law, people detained and their families will have
detained again in the same place, just fewer opportunities to object to detention and treatment
under a different law. It seems perverse
that you could set up a law precisely to Let’s take a hypothetical example to She would no longer be eligible for free
discharge people from detention when work this through. “Ella Brown” has aftercare. There would be no statutory
they do not meet certain criteria, only for autism and her care in the community is discharge planning processes of the kind
them to be detained again under a breaking down. She is considered by proposed in the MHA white paper. There
different law. clinicians to pose a risk to herself as well are good reasons to believe she and her
To summarise, the smaller you make as others and they want to bring her into family might have a harder time
the reach of the MHA – by raising risk hospital for assessment and treatment. preventing her admission or getting her
thresholds, by removing people with At present, they could make an out under the MCA than the MHA.
learning disabilities and/or autism from application for detention for assessment
its scope altogether – the more people under section 2 of the MHA. She Question the loss of protection
will overflow into the MCA’s provisions would not be eligible for detention under So, my point is this – taking people with
for detention. the MCA DoLS (or the LPS as presently learning disabilities and autism out of the
drafted) because she is both within the scope of the MHA will not stop them from
scope of the MHA and she is objecting. being detained in ATUs unless we also fix
It seems perverse to draw up However, if the white paper’s proposal the MCA.
We could argue for an absolute
a law to discharge people who to remove people with autism from the prohibition on hospital detention for this
powers of detention of the MHA were
do not meet certain criteria adopted, then she would no longer be population or a requirement for court
only for them to be detained within the scope of the MHA; no approval for this.
We could argue that the MCA should
again under a different law application could be made under carry safeguards equivalent to those in
section 2 or, if it were made, it could not
be granted. the MHA. This would entail a major
So, even though Brown is objecting, she review of the LPS, which were passed by
For some people, this sounds is now eligible for detention under the parliament only a couple of years ago.
acceptable. I have heard it argued that MCA – the DoLS at present and the LPS as I doubt the government would want to
since it self-evidently would not be in a of next year. revisit that turbulent exercise any time
person’s best interests for them to be soon, but it is worth asking ourselves why
detained in hospital, the MCA will protect Less scrutiny someone should have less protection
them against that possibility. Detention under the MCA potentially under the MCA for detention in the same
means that fewer independent kind of setting. n
Best interests not the best option professionals will be scrutinising l Department of Health and Social Care
The trouble is that the concept of best admissions and the frequency of reviews. (2021) Reforming the Mental Health Act.
interests is inherently vague and Whereas under the MHA a tribunal will https://tinyurl.com/4wtx9sdd
subjective. I doubt there is a doctor in the automatically be convened for Brown
country who would detain a person in after six months to review her detention, Lucy Series is Wellcome senior research
hospital where they believed it was not in the odds of her having a court review of fellow and lecturer in law, School of Law and
their ultimate best interests, albeit they detention under the DoLS are 1% and Politics, Cardiff University. Follow her blog
Seán Kelly might see it as the least bad option for projected (by the government) to fall to The Small Places at https://thesmallplaces.
that person from the available options.
0.5% under the LPS.
wordpress.com/author/lucyseries/
www.cl-initiatives.co.uk Community Living Vol 34 No 4 | Summer 2021 9