Mental Health - April 2010

It’s not just what’s expedient

The protection given by the Mental Capacity Act is different from the power contained in section 136 of the Mental Health Act.

Some police forces have leapt very eagerly upon the Mental Capacity Act (MCA); so eagerly, in fact, that they have begun to use it in preference to the Mental Health Act. That might be a perilous course.

Section 5 of the MCA gives all manner of people the power to provide care to an incapable person. It seems it is now being used to take people to hospital who appear to be suffering from mental disorder.

That is already covered by section 136 of the Mental Health Act (MHA), of course, provided the person concerned is in a public place and appears to be in immediate need of care and control. Thereafter, he may be held in hospital for up to 72 hours while being assessed for possible admission, whether as an informal or a detained patient.

It is not hard to see why, in this situation, the MCA might be preferred to the MHA: a constable who uses section 136 might have to remain with the patient while a bed is found for him, which might not be for several hours. The section 5 power, however, appears to carry no such expectation, and it is not subject to the formal arrangements that would otherwise apply.

But there are significant problems with this approach. First, of course, while section 5 may be invoked in a public place, it will only apply to someone who is, or appears to be, incapable, and so might not cover everyone to whom section 136 could apply.

The second problem will affect doctors and nurses more than constables, but it should be no less compelling for that. While section 136 includes the power to detain a patient after he arrives at hospital, section 5 does not: the relevant constable cannot confer such a power on those who receive the patient, and the MCA itself does not contain it. If the patient is incapable, it might be possible for the hospital authorities to invoke the Deprivation of Liberty Safeguards (although they will have to act with great speed in order to do so); but if he is capable, they will only be able to detain him substantively by using the MHA, a possibility section 136 would have given them fully 72 hours to investigate.

The use of section 5 of the Mental Capacity Act instead of section 136 of the Mental Health Act might well be expedient for chief constables, but that will almost certainly be at the expense of the NHS. It should not be contemplated, therefore, without proper, informed consultation with all concerned.