Monday 31 May 2021

Personality Disorder, Capacity and the Mental Health Act

 

On 28th May 2019 an inquest in Cornwall reported on the sad case of 23 year old Amy Morby, who died as a result of an overdose.

She had received treatment at the Emergency Department in Truro three times in 4 days in September 2018. A week later she died of a fourth overdose.

The inquest reported that she was a patient of the local CMHT, and had also been assessed by the hospital psychiatric liaison team. The hospital assessor stated that Amy was treated at Treliske’s emergency department following deliberate overdoses on five occasions during 2018, including three times between September 2 and 6, just a week before she died.

He said that: “She was not acutely mentally ill. Amy’s problems were psycho-social stresses. Life was hard and she was going through a difficult time.”

The manager of the Community Mental Health Team said the team were shocked by her death as they did not consider the overdoses on September 2, 4 and 6 were actual suicide attempts. It was concluded that Amy was probably suffering from a borderline personality disorder.

There is, unfortunately, nothing out of the ordinary in this narrative. Many people suffering from a wide range of mental health problems make attempts to end their lives, and some are successful. Mental Health Services do try to help people at risk of suicide, but it is not always possible to achieve this.

Also unfortunately, identifying that a patient has a “personality disorder”, in particular, an emotionally unstable or borderline personality disorder, is often used as an excuse not only not to compel treatment, but also to decline to offer treatment.

However, there was one sentence in this report that particularly struck me:

“The inquest heard that Amy couldn’t be sectioned under the Mental Health Act as she had full capacity and wanted to continue working with the mental health team.”

It is not reported who said this in the inquest, but I know that many AMHPs would disagree.

For a start, I am reminded of the case of Kerry Wooltorton, who I have written about several occasions on my blog. She was allowed to die in hospital after drinking antifreeze, on the basis that she had made an advance decision to refuse treatment. The coroner in her case stated: “Kerrie had capacity and she could not therefore be treated”.

As I have said before, it is not uncommon to assess someone under the MHA who is either seriously planning suicide, or has taken an overdose of a noxious substance and is refusing treatment.

Capacity is not an essential factor in these assessments. Nowhere in the MHA is capacity mentioned in this context. The requirement is for someone to have a mental disorder within the meaning of the Act (which is very broad), and to be in need of assessment and/or treatment.

Detention under either s.2 or s.3 MHA would then provide a legal framework to provide assessment and, if necessary, treatment against the will of the patient.

This is not to suggest that mental capacity has no part in decision making about use of the MHA. Indeed, there is an interface between the Mental Health Act, which is about mental disorder, and the Mental Capacity Act, which is all about mental capacity.

This is reinforced by a considerable quantity of case law, including AM v SLAM, and Cheshire West.

The case law makes a distinction between objecting and non-objecting patients, and capacitous and non-capacitous patients. A non-objecting, capacitous person can be treated in hospital for mental disorder without recourse to the MHA. But both an objecting capacitous person and an objecting non-capacitous person may be detained for assessment and treatment under the MHA, and in many situations should be, if it is the only means by which they can receive the assessment and treatment they require.

Whether deemed to be capacitous or not, Amy Morby could have been made subject to a section of the MHA. The decision should perhaps have been allowed to have been made by an AMHP and 2 psychiatrists.

3 comments:

  1. AMHPs now regularly assess MCA capacity before they get on to the MHA assessment, with the two fee-paid (usually retired) psychiatrists present throughout. They don't ask many questions to explore capacity; for example, some people are capacitous in certain respects but not in others. If they can assess the person as "capacitous", they feel confident in proceeding to the MHA assessment. When I attended as a Nearest Relative, I wasn't persuaded that anyone present had had much training in the complexities of MCA assessment.

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  2. Many thanks for this post which makes many good points.

    There is a further (perhaps less legal) aspect of capacity and the MHA. Where a patient is agreeing to community treatment, then the assessing team would have to consider if this is a realistic option (to be "least restrictive") - and part of this would be whether the patient has capacity to do this. Sometimes you see people who are so unwell that even though they say they would accept community treatment it's clear they haven't really the ability to do so; equally some time people will appear to make reasonable, rational decisions to do this. That doesn't make detaining someone impossible (as you state) if the risk is evident, but it does become much harder if there appears to be a viable alternative. Thanks, as ever, for your posts.

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  3. One question not covered here is whether detention under the MHA gives the power to provide compulsory treatment for a paracetamol OD in the context of a capacitous patient with personality disorder who is refusing. Is treatment of the overdose part of the medical treatment for the mental disorder (in the way that patients with eating disorders can have compulsory treatment of the physical health consequences of their restricted eating)? Any guidance towards relevant case law must appreciated! Thank you for your excellent blog!

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