There's been a bit of sneaky legislation.
The Mental Capacity Act 2005
Have you had a rummage around through The Mental Capacity Act 2005 (MCA 2005) yet?
I've read it from cover to cover a couple times now, since it's highly relevant to my work, but even so it was only when a number of lawyers have explained some of it to me that the implications are becoming clear. And scary.
The legislation is broad. It doesn't apply just to mental health, or just to health in fact.
Question : When a social worker determines if a person can make decisions about going in to care, solicitor determines if I have capacity to instruct them on the conveyancing to buy a new house, when a bank clerk determines if someone's capable of managing their finances, whether a frail old lady in a care home can refuse a bath, what test is used in any and all circumstances to decide if I, or whoever, does have capacity to do these things?
Answer : The Mental Capacity Act 2005. It has within it the test that is used to assess capacity. Any capacity. In any situation. For anything. By anyone. So, a pretty big bit of legislation, then.
No longer will social workers routinely be able to ask me if a patient on a medical or surgical ward, or in their own home, has capacity to make choices about going in to a care home. The social worker will have to determine that for themselves. It is not a delegable duty. Professionals taking responsiblity for their professional decisions, this is a good thing. Specialists still can give a view in complex cases but that doesn't over ride the decision any other individual makes on their own assessment of capacity.
Let's assume that I've a patient who lacks capacity to make decisions about their future treatment. Maybe they're too depressed and thought disordered to weigh up choices, benefits, risks, consequences and outcomes of various alternatives. Maybe they're dementing through Alzheimer's disease. Within the meaning of the MCA 2005 this makes them an "incapacitated adult" with respect to this decision on treatment.
Section 5 lets us treat an incapacitated adult.
Positively, it means nurses and carers can deliver care lawfully. The patient needs dressing in a morning, may need help bathing, may need help dressing in nightwear on an evening. Section 5 lets them deliver this hands on care without this undressing of a patient without their consent constituting trespass against the person and criminal assault. Which is a good thing, carers are empowered to deliver care.
Worryingly, it means I can give any care on the understanding, ". . . that it will be in [the patient's] best interests for the act to be done."
The MCA 2005 covers personal welfare (health and social welfare) decisions.
If a muddled patient needs care (medical, nursing or social) such as, say, an injection, it could be given to the adult under the MCA 2005. In fact, ECT or any other treatment can be. Antibiotics, amputation, arthoplasty, whatever is needed and the patient's doesn't have capacity to consent to (but otherwise could consent to).
This effectively obliges us to use community treatment orders. When the MCA 2005 comes fully in to force this Autumn a psychotic patient who doesn't appreciate the role of medication can then have depot antipsychotic medication injected in to them in their own home without their consent.
They're not detained under the Mental Health Act 1983 (MHA 1983), they have none of the protections of the MHA 1983 and no scrutiny or review that the MHA 1983 requires.
An independent MCA advocate (IMCA) can give an opinion and a court appointed deputy can give a direction. If you've made a Lasting Power of Attorney (LPA) then your Donee can give or refuse consent for health and social welfare decisions, if you have empowered them to do so in the LPA. Nobody else can. In all other circumstances then other folks views are taken in to account but the only ones truly empowered and determining what is is the patient's best interests is the multi-disciplinary team.
So if I'm knocking on someone's door with a nurse to inject them in their own home, how can they appeal against this decision? No Mental Health Act Commission review. No second doctor needing another medical recommendation. No Second Opinion Act Doctor (SOAD) approving medication, ECT and so on. No right to appeal (to managers or to a Mental Health Act Commission tribunal). No right of relatives to discharge.
Hmmm, not many safeguards or rights at all, in fact . . .
1 in 4 of us will experience mental illness at some point in our lives.
Lest, in a moment of lost capacity, malign or unwanted care is benevolently foisted 'pon us, I reckon it's time for us to see our solicitors and sort out Advance Decisions and two Lasting Power of Attorneys (one for Personal Welfare and one for Property and Affairs).
Who's going to win here, then?
Solicitors must be ecstatic with glee.