Why are people so afraid of the Mental Capacity Act?

The MCA was designed to provide a legal framework to support actions taken on behalf of people who lacked capacity as long as it was considered to be in their best interests – it exists at least in part to provide additional protection for the decisions and actions relating to people lacking capacity taken by carers and other professionals for things that were already being done under common law. The MCA does not even replace common law. However, many of the professionals involved with people who lack capacity, eg. social workers, staff in care homes, ambulance crews, and even relatives, seem to be interpreting the MCA as preventing them from doing things that are in the best interests of service users. AMHP’s are often finding themselves being asked to use the MHA when the MCA might be more appropriate.

One Friday afternoon I was contacted by an older people’s social worker requesting an assessment of an 85 year old lady, Mary. It was reported that neighbours the previous evening had seen smoke billowing out of her kitchen. She is a widow who lives alone and has been diagnosed with vascular dementia. The social worker had visited her this morning and reported that she appeared agitated and had soiled herself. I initially suggested that if there had been a fire, there may have been a risk of smoke inhalation, etc and that perhaps an ambulance should be called so she could be checked out medically. I also suggested that since she was suffering from dementia, the MCA could be used to provide her with physical medical intervention. The social worker insisted that this was not appropriate, saying that Mary had had a mental capacity assessment (although seemed unclear of the outcome), and that only an assessment under the MHA would be suitable.

I went to see the lady’s GP to ask him if he could attend an assessment with me. He was on duty, looked extremely harassed and seemed about to cry when I asked him to. I went through the list of Sec.12 doctors. They were nearly all either on holiday, already committed to an assessment, or were otherwise unavailable. After over an hour on the phone, I was only able to find one Sec.12 doctor.

I established that Mary has home carers visiting her twice daily. In view of the above I rang the social worker back, saying I was having problems getting the full complement of doctors, and enquiring as to whether additional home care could be provided over the weekend as an alternative to admission. The social worker insisted that this was not feasible.

I eventually managed to persuade the GP to meet with me at the patient’s house with the one Sec.12 doctor, who at least happened to be a phsychogeriatrician. (“Couldn’t you do the assessment with the psychiatrist and then just call me when the papers need signing?” “No.”)

By late afternoon I was finally at the patient’s house. The social worker was there, as well as one of the carers. The psychogeriatrician arrived and began an examination of the patient. It very soon became clear that, even if she did have dementia, she had bad cellulitis and also possibly had an acute infection. The psychiatrist was not therefore prepared to consider a detention under the MHA. I went to look for the social worker, and was given a note by the carer to say that she had gone, and had informed the Nearest Relative, a son who lived 100 miles away, that we would be admitting her to the local psychiatric unit. The GP arrived and concurred with the psychiatrist, and prescribed an antibiotic. The kitchen fire was not nearly bad as had been described, and having talked to the home carer, there did not seem to be any significant deterioration in the patient’s mental state to warrant action being taken then and there, especially since the current problem seemed to be physical illness rather than mental disorder, and I spoke to the son who was already on his way to visit his mother over the weekend. I alerted the Out of Hours service of the action taken, and the possible need for extra home care over the weekend.

End of story? No. Having spent the weekend ruminating over the assessment, I concluded that I had been set up. The social worker really wanted Mary to go into residential care, but did not think they could do it under the MCA. So the social worker thought that if an admission under the MHA could be engineered, it would then be much easier to transfer the patient from hospital to residential care.

And still it rumbled on. Over the next few weeks the local Community Mental Health Team became involved with Mary. The local psychogeriatrician agreed to undertake a formal assessment of capacity. He visited Mary and concluded that, now the infection had cleared up, Mary did indeed lack capacity. He was also prepared to consider that an admission for assessment might be justified. So I again went out with the patient’s consultant and her GP, and this time, based on the two medical recommendations, and taking into account a significant deterioration in the patient’s condition, including a recent fall and a mild head injury which she had refused to have treated, I completed an application for detention under Sec.2, and Mary was admitted to hospital. A month or so later she was transferred to residential care.

So why didn’t I detain her a month earlier? Well, apart from the Sec.12 doctor not being willing to make a recommendation, it seemed to me that, even though Mary did not want to leave her home, and had on several occasions turned ambulance crews away when she had had falls, nevertheless, if she lacked capacity and it was in her best interests, then she could still have been taken to hospital, or even a residential care home, and could have avoided a stay on a psychogeriatric ward.

Such are the trials of the AMHP.