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The Psychiatrist Says “No”

July 25, 2017

I’ve been getting my brain in a right old tangle the last few days. I keep trying to compare the importance of best interests decisions in lawfully applying the Mental Capacity Act with what seems to be the complete absence of best interest factors when someone is detained under the Mental Health Act.

My web is further tangled by the disparity in the number of decision makers. Under the MCA, a best interests decision can only be made after consultation with all relevant parties. I know that isn’t always what happens in reality but at least that’s the goal of the Act. Under the MHA, if best interests are considered at all, the decision seems to come down to one person – the responsible psychiatrist. The person detained or their family are seldom included in the decision making process, so actually have little idea how the decision has been reached.

It’s only Tuesday but in the past four days I have heard the stories of three people with autism and/or learning disabilities who are each detained under a Mental Health section. Each one of them have asked for extended leave and can make a decent best interests argument for being allowed leave but each one has been refused by the responsible psychiatrists who have cited “risk” as the reason for their refusal.

The three requests were made to:

1. Spend a long weekend away with family in a cottage in Wales.

2. Attend a family wedding.

3. Spend his 30th birthday on a boat with his family and friends.

It’s pretty easy to put a case together as to why any of the above would be in the person’s best interests. All of them involve quality time with people who love them and have known them for years. All three activities are significant life events and will form part of the memory photo album for the future. All three events show the person they are loved, and respected, and important to the family dynamic and that the person is a valued component of something greater and bigger than him/herself. In a nutshell, all three should be good things to do.

But risk comes first and appears to trump best interests. There will be about 60 relatives and friends at the wedding, so surely amongst them, any risk can be mitigated.

One question I keep asking myself is this: There you are at a multi disciplinary meeting with all the professionals. They are keeping the conversation solely to the Mental Health Act. Are you allowed to talk about best interests as per the Mental Capacity Act? (You could also ask, are you allowed to talk about the Human Rights Act? Or the CRPD?)

None of the three people I’ve mentioned above were unwell at the point of their admission. They ended up in hospital because of failings in their home care provision. But because they’ve ended up in hospital, under a medical decision maker, everything is seen through a medical lens.

One last question – if the MCA is meant to such an empowering force for the good, how comes it doesn’t come within miles of the three guys in the stories above?


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  1. charm permalink

    I think it’s long over due to turn the tables on these ‘professionals’. I remember when my son was deprived of his liberties and placed in ‘hospital’ and forced to stay by a psychiatrist who said NO.
    1.He said no to my son coming home for his 21st birthday.
    2 He said no to my son being released for 17 months.
    and he sat back munching popcorn.
    He allowed ‘home leave’ and wondered why my son didn’t want to go back to his hospital ‘prison’ to be ‘assaulted’. He pretended he was ‘horrified’ when riot police were sent to my home to remove my son on a home visit that had finished also smashing his door down and leaving me to pay the costs.
    These activities used by professionals need to stop. Otherwise, they are continuing to blatantly deprive the liberties you fought to correct through the Courts in your son’s case Mark. I actually think they are ‘sticking two fingers up to the rulings by the Court of Human Rights so they can carry on doing as they wish in the future and as they were before. Everyone with a disabled son or daughter needs to fight against it…because you can never be sure when it’ll be a loved one’s turn at this barbaric treatment on a mainly 1 man or woman psychiatrist say so.

  2. Kate strutt permalink

    When the MHA is in force the MCA no longer applies, legally. What psychiatrists see when people are in ATU’s is very distressed people… because they are away from everyone and everything they’ve known, medicated and probably restrained when they act in ways that are potentially risky because they are fearful. This gets labelled as ‘mentally ill’ often diagnosed medicated etc, applying mental health treatments, which don’t work because the issue isn’t a mental health issue per se but distress. Psychiatrists assume person will behave in the same way on community leave and therefore assume too risky. Makes sense. But you and I know that for many people, as soon as they are with their family and feel safe again, for many there is no distressed or ‘risky’ behaviour. But you know this right? Makes sense though to ask why is MCA thrown out when MHA is in place. For people who are very mentally unwell, bipolar episode or psychosis it makes sense but not for people with LD or autism.

  3. Jayne knight permalink

    When you are in these all powerful meetings Mark then do much depends on the personality and way of working of the RC. Best interest decisions can run alongside MHA. For example on where to discharge someone to if a decision has been taken they are ready for discharge.I am sure therefore that equally section 17 leave could be brought up in the same way as that’s usually the section used for a few weeks for a discharge of someone.
    One of the human rights lawyers could answer your question
    Do you want to ask one of them?

  4. I don’t think a psychiatrist can determine “risk” any better than the next person. Nothing in their education prepares them to. The cases you describe are human rights issues. They shouldn’t be medicalised.

  5. Those 3 cases led from failures in care home provision..? So the status of the people should be voluntary, rather than under section (as they weren’t ill). But as they aren’t exactly volunteering to be in hospital, there should be much more effort in discharge planning.
    Any risk should be clear to everyone, but all should be doing positive risk-taking, as it’s only through ‘hope, opportunity and sense of agency’ that any good outcome is likely, as any good psychiatrist would say.

    Our psychiatrist used to agree regular leave, but the final responsibility legally lay with him, and I don’t think the rest of the MDT did much that was expert, so I really wouldn’t want their decision.
    Family and psychiatrist should be equally as ‘partners in care’, working to make happy events happen.

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