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EDITORIALS: John Dawson Mental capacity and psychiatric admission BMJ 2008; 337: a116 [Full text]

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Beware of fluctuating capacity

Jay Sarkar   (3 July 2008)

Dawson's editorial: some clarification required

Brian J Murray   (6 July 2008)

Beware of fluctuating capacity 3 July 2008
Jay Sarkar, Consultant Forensic Psychiatrist, Personality Disorder Service & Secure Womens Services East Midlands Centre for Forensic Mental Health, Cordelia Close, Leicester LE5 0LE Send response to journal: Re: Beware of fluctuating capacity	Dawson refers to capacity in a categorical manner - present or absent. That is most useful when issues of 'gatekeeping' into detention and/or providing treatment urgently are important over-riding factors. This might also be reflected in the diagnoses of patients detained where severe psychosis, mood disorders or dementia often predominate. With regards to personality disordered individuals, especially those who have offended and are diverted into mental health services, the situation is quite different. Most of them retain their capacities for they do not lose 'touch with reality' as psychotic or organically impaired patients might. Or else this loss is limited to brief periods when they become psychotic or experience severe emotional disturbances that might become transient mood disorders. On other occasions they experience post- traumatic stress symptoms or disorder. The applicability of 'appropriateness' test in relation to the Mental Health Act 1983 and the 'best interest' principles of Mental Capacity Act 2005 are limited to brief windows only. Additionally most severely personality disordered individuals fluctuate in terms of stability of symptoms such that such windows replicate themselves throughout their detention. Furthermore, they often retain capacity fundamentally to refuse physically invasive treatments with drugs, ECT, etc., but may have impaired 'best interest' capacity for psychological therapies. They might chose to refuse engagement with any risk assessment, risk management and risk reduction strategies all of which are underpinned by robust psychological frameworks derived from a wide variety of fields ranging from cognitive behavioural to psychoanalytic. It is also not known how one would describe the undesirable side effects of psychological treatments, for often that is not known. Can the patient be expected to make a balanced judgment when the treater is unclear? One cannot 'enforce' psychological treatment either unlike depot medication, often the fall- back resort to harried clinicians when rapid symptom control is necessary. It is also important to highlight that what might be considered 'medical' best interest (the Code of Practice of MHA '83 considers all habilitative treatments to be 'medical' including attending arts and crafts in occupational therapy, for example) might not be the 'social' or 'legal' best interest for the patient. The risk of loss of autonomy and liberty for a far longer period of time brought about by acceptance of psychological treatments (that might highlight risks to others even more glaringly) can quite easily be conceived of as 'undesirable' and 'side effect' by the patient. Should patients be expected to engage in treatments that is likely to prolong their detention and may not be of direct benefit to them anyway, beyond the argument that prevention them from re-offending is a direct medical benefit. Should that not be the work of criminal justice agencies rather than mental health agencies? These issues are even more confusing when patients self harm prolifically within institutions such as maximum secure hospitals and prisons and both refuse treatment -physical and psychological - and carry out random and sometimes strategic assaults on care-givers in order to paradoxically 'seek' care in a traumatic manner, a function of their 'mental disorder'. Often in such cases one has to rely on common law and statutes such as MHA '83 and MCA '05 become meaningless as these statutes are limited in their scope inasmuch they do not cover much of ethical and moral debates necessary for these acts to be really meaningful in all health settings, not merely acute settings with those with severe psychotic symptoms or risk of suicide. Finally, with the imminent arrival of the MHA '07, one where all notions of 'categories' have been abandoned for 'mental disorder' alone, and 'treatability' criterion has been removed, one is likely to see paedophiles being detained as Paedophilia is a recognised mental disorder in the DSM and ICD nomenclatures, however mentally well the individual might be. We are on the anvil of a time when psychiatrists within the community to those working in the most secure institutions are likely to be challenged by statutory agencies to detain sex offenders on the grounds that they are mentally disordered, and that 'appropriate’ treatment exists. Both the acts are completely out of depth in cases such as these and issues such as On the other extreme are those patients detained under the DSPD pilot proposals who are increasingly taking up considerable amount of time, energies and resources of the mental health services through legal challenges and counter-challenges with tribunals appearing more like country courts and patients and hospital authorities both arguing through their respective counsels. Both the patient and the RMO and Social supervisor are being subjected to what has been called 'juridogenic harm', or the harm to therapeutic alliance and collaborative endeavours that so characterise doctor-patient relationships, by the adversarial 'us and them' approach that tribunals are forcing them to go through. Should one ask whether they have the capacity to agree to legal eagles hijacking their agendas and whether this is in their best interest for it clearly involves refusal of treatment or as is now increasingly being referred to as 'treatment resisting' patients as opposed to 'treatment resistance'. Unfortunately neither the academic world nor the Royal College of Psychiatrists appear to have taken such issues as seriously as they ought to have such that busy clinicians are now, in tandem with trust legal teams, trying to do a fire-fighters job. Who is to predict how the Supervised Community Treatment orders would be used for the majority of the DSPD individuals will not be subject to invasive medical treatment and cannot be forced to comply. And they are coming to a community mental health service near you if you are a psychiatrist. The need for greater awareness on legal and ethical issues could not be more acute for psychiatrists in the country and articles such as these raise important issues tangentially and must be lauded for they are so rare in mainstream medical journals. Competing interests: None declared
Dawson's editorial: some clarification required 6 July 2008
Brian J Murray, Consultant Psychiatrist HP22 4EZ Send response to journal: Re: Dawson's editorial: some clarification required	The editorial by Dawson (1) makes some interesting points but two important points need clarification. Dawson says that where a patient might be covered by the Mental Capacity Act 2005 (MCA) or the Mental Health Act 2007 (MHA), the clinician can choose which to apply. There are, in fact, guidelines supplied with the Code of Practice for the MCA (2) advising which is the more appropriate. Crucially, once a patient is detained under the MHA it effectively 'trumps' many provisions of the MCA, including Advance Refusals of Treatment. Dawson then asks whether Owen et al's study (3) shows that the current MHA and current MCA are inter-changeable and concludes that they are not - but for the wrong reasons. I think I understand what Dawson means when he makes the unusual claim that the MCA will only apply where a patient is accepting treatment. It is true that when a patient actively dissents from (psychiatric) treatment, the MHA would be more appropriate, however readers should not run away with the impression that the MCA only applies when someone agrees with treatment. The MCA comes into play whenever someone is shown, or suspected, to lack functional capacity based on their ability to understand and retain relevant information, weigh up their choices and communicate their decision (2). The Mental Capacity Act allows treatment if it is considered in the individual's best interests, regardless of whether that individual agrees or not. Whether there is dissent or not, the MCA still applies to provide important safeguards such as a duty to explore the patient and / or family's wishes, and a provision for proportionality in the management plan. Dawson is still right to say that Owen's study does not show that we can jettison the current MHA in favour of the MCA, but then it was not designed to answer this question. For one thing, Owen's study used the MacArthur Competence Test (4). This predates the MCA by several years and the criteria are (despite reassurances in the original paper) noteably different from the criteria used in the MCA. The biggest flaw, though, in Dawson's argument is that he is examining only current legislation's ability to deal with the fluctuating nature of mental incapacity. So far, the fluctuating nature of certain types of incapacity have not proved a major obstacle in the application of the Mental Capacity Act, but if necessary it would not be difficult to design new legislation that would over-come Dawson's objection. New MCA/MHA legislation could incorporate a proviso that, once detained, an individual will only be discharged once their clinician believes that recovery is likely to be sustainable. This would be no more subjective nor problematic than many other provisions of the current MCA and MHA. The point is that we should not block important reforms of current legislation based on procedural matters if there is an ethical imperative for reform: I believe Owen's study adds to the growing body of evidence showing that that ethical imperative is there (5,6). Yours Dr Brian Murray 1 Dawson J Mental Capacity and psychiatric admission BMJ July 2008; 336: 5; doi: 10.1136/bmj.a116 2 Mental Capacity Act Code of Practice Available from http://www.justice.gov.uk/guidance/mca-code-of-practice.htm 3 Owens GS, Richardson G, David AS, Szmukler G, Hayward P, Hotopf M. Mental Capacity to make decisions on treatment in people admitted to psychiatric hospitals: cross - sectional study BMJ July 2008; 337: 40; bmj337.a448 4 Grisso T, Appelbaum PS Assessing competence to consent to treatment New York: OUP 1998 5 Doyal L, Sheather J Mental health legislation should respect decision making capacity BMJ Dec 2005; 331: 1467 - 1469; doi:10.1136/bmj.331.7530.1467 6 Murray B Mental health legislation and decision making capacity: Capacity is of more than practical benefit BMJ Jan 2006; 332: 119; doi:10.1136/bmj.332.7533.119-a Competing interests: None declared