Consent and capacity are intrinsically linked. If there is a ‘reasonable belief’ that a person is unable to make an informed decision with support, then the first principle of the Mental Capacity Act (2005) is suspended in order to enable assessment of capacity for the specific decision in question. When working with someone who may have deteriorating or fluctuating cognitive health, which may be affecting their engagement with the decision in question, it can be particularly hard to establish whether a person is making an ’unwise decision’ under principle #3 of the MCA, whether they lack capacity to make the specific decision, or if other legislation such as the Mental Health Act should come into play.
The case of Nicholas Harrison
In a coroner’s report into the death of Nicholas Harrison (2024), we are given a stark reminder of the importance of completing relevant assessments and professional escalations to safeguard appropriately. In the report, coroner Kirsten Heaven states;
I heard evidence from a SBUHB [Swansea Bay University Health Board] consultant psychiatrist that where a mentally unwell person in the community refuses mental health care and treatment and / or where they are hard to engage in mental health services such persons can be referred for assertive outreach in SBUHB to facilitate their engagement with services, but only if that person consents to such outreach. I also heard that assertive outreach services are available to those under secondary mental health care in SBUHB but that to be accepted for secondary mental health care a patient must consent to first being assessed. I heard that the referral forms for assertive outreach require a referrer to indicate whether a patient is consenting and if they are not consenting then the referral will not be accepted. I also heard that when a mentally unwell person refuses to engage with mental health services in the community it can be a feature of their mental ill health and an indication of their lack of insight into their illness. I am concerned that if consent is required before a mentally unwell person in the community is able to receive assertive outreach then there may be a gap in the mental health services within SBUHB that creates a risk that mentally unwell people will remain in the community without access to mental health services in circumstances where they may pose a risk to their own life or the lives of others. This is because whilst they may need access to mental health services, they may be too unwell to consent to that access. I am concerned that if there is such a systemic deficiency within SBUHB in relation to hard to engage mentally unwell people in the community then this creates a risk that deaths will continue to occur.
Kirsten Heaven: ‘Nicholas Harrison: Prevention of future deaths report’ (9 May 2024)
Lessons to be learnt: prevention of future deaths
A person has a right to accept or decline treatment. However, due care and consideration must be given as to whether this is an informed decision (with capacity), or rather a decision caused by a disturbance of the mind (a decision made without capacity).
In these situations, we have a professional duty to apply the Mental Capacity Act (2005) and associated legislation including safeguarding under the Care Act (2014) and the Mental Health Act (1983, 2007).
This is why it is so vital to keep CPD training up to date, and to critically reflect upon everyday practices. Indeed, colleagues should be encouraged to raise questions within professional working teams should something not seem right, in order to ensure duty of care, and to avoid situations such as those outlined by the coroner above.
It is my professional opinion that wider review is needed into policies and procedures within Community Mental Health Team practices around consent to treatment, application of the Mental Capacity Act, non-engagement of patients and non-attendance. Otherwise we risk more cases such as those of Nicholas Harrison, and more people suffering, or even dying as a result.