The assessor must be either a doctor with specific psychiatric expertise, often approved under Section 12 of the Mental Health Act, who has undergone appropriate training to be a medical assessor, or an AMHP who is also a best interests assessor. Either of them must if relevant have completed annual refresher training that satisfies the supervisory body as fulfilling this requirement.
What makes a good eligibility assessment
The assessor must be clear about what makes a person ineligible for the Safeguards (see the next section for problems that may arise in psychiatric hospitals). This is detailed in Schedule 1A (62) to the Mental Capacity Act 2005 and the rule is spelled out, helpfully, in the eligibility form (form 9).
The Safeguards cannot be used as the mechanism for protecting the rights of a person if:
- the person objects to being in this hospital in order to be given treatment for their mental disorder or to be given some or all of the mental health treatment and
- no donee (person given rights under a Lasting Power of Attorney) or deputy appointed by the Court of Protection has made a valid decision to consent to each matter to which the person objects and
- the person meets the criteria for being detained under Sections 2 or 3 of the Mental Health Act.
It will sometimes happen that a person is referred for authorisation under the Safeguards, for example, in a community hospital or care home, but before the assessors can get there, the person’s psychiatrist has admitted them to a psychiatric hospital under the Mental Health Act. This will be because, as above, the person requires treatment in a hospital, for a mental disorder, and is objecting to some or all of this. The MCA however cautions (63) that it cannot replace the Mental Health Act, or be seen as an optional ‘less restrictive option’ to the Mental Health Act. It is spelled out that nothing in the MCA authorises anyone:
(a) to give a patient medical treatment for mental disorder, or
(b) to consent to a patient’s being given medical treatment for mental disorder if, at the time when it proposed to treat the patient, his treatment is regulated by Part 4 of the Mental Health Act.
The relationship between the MHA and the MCA relating to treatment of a detained patient for a mental disorderis that, generally, the MHA is the preferred legal mechanism to protect the human rights of the person:
An Advance Decision to Refuse Treatment relating to a mental disorder, or a decision by a health and welfare attorney refusing treatment of a mental disorder, can be overridden by use of the Mental Health Act 1983.
An exception relates to ECT (Electro-Convulsive Therapy), in that an advance refusal of ECT, or refusal of its use by a Lasting Power of Attorney donee, cannot be overridden except in specified emergency situations:
s62(a) MHA: immediately necessary to prevent death
s62(b) MHA: immediately necessary to prevent deterioration (64)
A valid and applicable advance decision to refuse treatment, or a decision made by a health and welfare attorney acting within their powers (provided the decision is in the person’s best interests) re physical treatment must be respected.
Eligibility assessments in psychiatric hospitals
Particular problems can arise in mental health settings if a deprivation of liberty has been identified and there is disagreement on the appropriate legal mechanism to use to protect the relevant person’s rights under the European Convention on Human Rights. (65)
Considering whether to use the Mental Health Act is the most appropriate first step in almost all circumstances, as the relevant person will have been admitted for assessment and treatment of a mental disorder.
However, if a person is no longer a mental health patient (because, for example, minimal improvement to their condition brought about by medicating them against their will is no longer proportionate), but needs to stay in hospital to be given medication for a physical disorder and lacks the capacity to be safely in charge of their own medication, that person may be deprived of their liberty because staff will not let them leave in their own best interests. In such a case the Safeguards are the appropriate route to protect the relevant person’s rights.
The supervisory body and local mental health trusts (together with the CCG MCA lead) are advised to establish a protocol to address situations when a deprivation of liberty has been identified and the person has been assessed as ineligible for both the Safeguards and the formal powers of the MHA. Such situations typically occur when different groups of assessors have assessed the person separately. Where a deprivation of liberty is found, it is important that, if there is any doubt about the correct route to protect the person’s rights, the responsible professionals discuss which is the appropriate framework to achieve this protection. MCA and MHA leads from the relevant trust or the local authority are often able to be consulted or involved in such discussions.
Checklist for eligibility assessors
- If the eligibility assessor is not the best interests assessor, that person’s views have been sought.
- The eligibility assessor is clear what is the purpose of this hospital admission (treatment for a mental disorder or treatment for a physical disorder) in order to determine whether or not the person is eligible for DoLS.
- If the eligibility assessor needs further information to decide if the person is eligible for the Safeguards, they are aware of where to find it (the supervisory body or best interests assessor may hold such information).
Mr T (64): DoLS example from practice
Mr T is a 64-year-old with a diagnosis of alcohol-related dementia leading to hallucinations, paranoia, continued drinking, self-neglect, exploitation, assaults in the community and outbursts of violence and aggression.
He had briefly been detained under Section 2 of the MHA 1983, but his dementia did not respond to treatment. He remained on the ward since there was nowhere else for him to go, and his considerable physical health problems meant that he needed help with medication.
Mr T kept trying to escape from the ward and join his unit as he thought that he was still in the armed forces. Following a best interests meeting it was decided to seek a specialist care home placement. In the interim, it was identified that Mr T’s rights needed protecting, and a request was made for a DoLS authorisation. The eligibility assessor examined carefully the nature of his treatment, and decided that, but for his physical condition and the need to manage this, combined with the difficulty of finding a suitable care home, Mr T would not have needed to remain in the mental health unit. Therefore he was not a mental health patient, and ‘not ineligible’ for DoLS.
Mr T remained on the ward, with the protection of an authorisation, until he was placed in a small specialist unit. During his time on the ward, his paid relevant person’s representative, supported by an IMCA, requested that the supervisory body review the eligibility requirement, since they felt Mr T should have been detained again under the MHA. A different eligibility assessor came to the same conclusions as the first, that the DoLS authorisation was the appropriate legal framework to protect Mr T’s rights.