Constructing this blog has been an intricate journey. While I can describe the Mental Capacity Act (MCA) in specific contexts, its nuances become more challenging when applied in complex circumstances. Each revisit brings forth new contradictions, compelling me to acknowledge the paradox within the Act.

I’ve chosen to delve into the intricacies of the MCA over a series of three blogs:

• The first examines the uneasy interplay between the Mental Health Act and the MCA.
• The second highlights the dilemma of defining capacity using a binary system, especially for individuals experiencing hyperarousal or trauma. Given that our cortex may not function optimally during these instances, how might this influence capacity assessments?
• The third discusses the power dynamics inherent within the MCA.

The significance of the MCA cannot be understated. Its primary intent is to safeguard and empower those who lack the mental capacity to decide for themselves. By ensuring decisions made in their best interest reflect their genuine feelings and beliefs, we aim for a more inclusive and empathetic approach, leaning on the principle of minimal restrictiveness.

Yet, history paints a grim picture. Numerous instances highlight individuals being detained against their will for supposed medical ‘treatment’ or undergoing paternalistic practices where decisions were imposed rather than informed by their personal experiences and perspectives.

The Intersection of the Mental Health Act and the Mental Capacity Act

The Mental Health Act primarily focuses on circumstances that permit the detention of an individual in a hospital for assessment or treatment without their consent. It seeks to ensure that those with severe mental disorders receive treatment when it is vital for their health, safety, or for public protection.

Criteria for Detention under the Mental Health Act dictates:

• The individual must be diagnosed with a mental disorder severe enough to justify detention for assessment or treatment.
• Detention must be necessary for the person’s health, safety, or to protect others.

The Act guarantees specific rights for detained patients, including:

• The right to contest their detention.
• The right to be informed of their rights.
• The right to seek legal counsel.
• The right to have their situation reviewed periodically.

The Act defines roles for various professionals. Approved Mental Health Professionals (AMHPs) and section 12 approved doctors play critical roles in the assessment process. Following an assessment, a person may be detained based on the criteria mentioned, admitted voluntarily with their consent, or, if they pose no significant risk, might be directed to local services for support.

Clearly one of the challenges, where beds are scarce, services overwhelmed and the criteria for treatment still unclear, the exact nature of a mental disorder is problematic and the threshold of risk to themselves and others, difficult to quantify.

While the Mental Health Act seems tailored specifically for addressing mental health, risk, and treatment, there has been an observed overlap with the Mental Capacity Act. Notably, the language of the Mental Capacity Act has been increasingly employed in discussions of risk management, particularly in cases of suicidal ideation, eating disorders, addiction, and other behaviours deemed by society as problematic.

Misinterpretation of the Mental Capacity Act: A Hindrance to Care

A compelling webinar underscores the pitfalls of misapplying the MCA, cautioning against its misuse as a shield to protect professionals from litigation—especially surrounding the contentious issue of capacity to make ‘unwise decisions’, including suicide.

View the webinar with Dr. Chloe Beale here. https://www.mentalcapacitylawandpolicy.org.uk/suicide-and-the-misuse-of-capacity-in-conversation-with-dr-chloe-beale/

There’s an alarming trend where the Mental Health Act is bypassed, often relating to those with personality disorders and other expressions of emotional distress. While these are not always considered grounds for detention or voluntary admission, sidelining them as mere “choices of behaviour” is deeply problematic. Those of us attuned to the complexities of the human psyche understand the limitations of the conventional medical model of mental health. As professionals, we’re bound by our ethical and moral duties to “Do no harm” and respond with care.

Yet, barriers persist. While we pride ourselves on evidence-based methodologies, the absence of a thorough understanding of the mind’s physiological processes creates rules and protocols, where much of the diagnosis and treatment is not understood. Traditional care models and systemic prerequisites to address emotional distress often sideline intuitive and empathetic responses. In this context, the ‘Open Dialogic Model’, which prioritises open conversations and patient involvement, offers a refreshing alternative.

It’s disheartening when I hear of individuals labeled as “non-contactable” or deemed to have made a “capacitated decision” not to seek care. From my experience, when genuine efforts are made to walk alongside these individuals, they are reachable. Instead of recording that they didn’t show up, we must ask: How can we effectively reach out to them? It’s not just about setting an appointment; it’s about creating an environment where they feel heard.

In our quest for holistic care, psychologists and therapeutic modalities often find themselves vying with medication and interventions. But considering the emerging evidence surrounding trauma, adverse childhood experiences, addiction, and personalities, I strongly advocate for a participatory model. Building connections, instilling hope, and fostering a sense of purpose can significantly alter an individual’s trajectory, steering towards healing and growth.

Let’s Prioritise Compassion and Understanding

I advocate for deeper and more meaningful conversations, rooted in understanding. We must Listen actively, Believe genuinely, and Respect unconditionally. It’s time we cultivate safe environments where individuals can navigate the tumultuous waters of hope and despair. If mental health is the primary concern, lets use the Mental Health Act and rather than defaulting to Mental Capacity Act that might pigeonhole individuals into categories of care declination, let’s shift our focus. Let’s genuinely notice those in distress, understand the pivotal role of advocacy, and present genuine opportunities for care and support.