Published on 12, July, 2020
I was sectioned a couple of years ago and every time I appeal to go back home it's always overruled. The reason is because it's thought I can't keep myself safe and require constant support and care. I think it's because I used to get dehydrated a lot and had malnutrition but that was purely a lack of remembering to eat and drink. As a person I've always been safe to myself and others, I used to do a lot of imaginary play, I still do sometimes that's never changed. But it was never dangerous or anything like that.
I hate being in hospital. It's not home and the noise can be really distressing at times. I've been here for a long time but I'm still not used to anything here. I miss my home and I miss the familiarness of smells and possessions. My family still visit which is something but not as often, it's like they have all moved on and I'm just being forgotten. They do at least stick up to me when I appeal to go home again but I wonder if I didn't appeal would they instead for me? I worry they wouldn't.
I always was a bit stressful for them and like a burden.
I'm not sure what to do now. I've used an advocate, tried Citizens Advice and my GP. But it's led nowhere. The nurses say to keep appealing and when I'm ready I'll be ok to go home but it's been almost 4 years and it feels like it's never going to happen.
There is a lot of misunderstanding amongst the whole community on the use and meaning of the Mental Capacity Act 2005. But it is important to understand that one has the right to pursue an unwise course of action if they may.
The care providers are obligated to pursue the less restrictive option in caring for the patient; if a patient wishes to go the toilet or get out of bed, the care-provider is obligated to facilitate them to that end (within reason).
Care providers are obligated to encourage the patients understanding of the care they are receiving and get an understanding of their wishes, and have their close-carers concerns heard, even if it is deemed unwise, they must not use a more restrictive method than is necessary. So slip/trips/falls policy or the workflow of the staff is not a reasonable excuse to restrict what a patient wishes to do (or what their close-carer insists that the patient wants to do).
You can get a second opinion and care provider are obligated to allow pursuit of a second opinion. There should be a mental capacity act specialist that you could seek out, there likely will not be, because it isn’t really feasible as a requirement. I would be surprised if there were more than five in any given shire.
DeSpereaux
Currently there are social workers, psychologists, nurses and other health professions (apart from medical practitioners) who are trained as Best Interest Assessors - known as Approved Mental Capacity Professionals under the new legislation. The input of a AMCP is usually required where a care provider is seeking a Deprivation of Liberty Authority. The practicalities are a bit fuzzy at the moment as the latest legislation is being implemented piecemeal.
The fact that the patient lacks capacity means that there will be a named consultee, either a relative or an independent worker appointed by the local authority or the Court of Protection. There are also powers for the Donees of Power of Attorney for Health and Welfare. The guidance is a very large, very thick book about the size of an old telephone directory which I can't easily summarise here! The consultee for the purposes of the Mental Capacity might not be the "nearest relative" for the purpose of MHA83
It should be noted that "sectioning" (as per the original post) applies to sections of the Mental Health Act 1983 as amended. Persons sectioned under the MHA83 may have the capacity to make many specific decisions, and detention under the MHA83 disapplies parts of the Mental Capacity Act. Similarly, deprivation of liberty authorised under the MCA is not the same as "sectioning" and compulsory treatment for a mental disorder will probably require a s3 MHA83.
There should be no shortage of BIA/AMCPs nor of Approved Mental Health Professionals - every authority should have sufficient trained staff, or employ Independent Social Workers as contractors. There would almost certainly be far more than five in any shire authority.
Regarding "unwise acts " the person must have mental capacity - the relevant caselaw was that a person who makes what the professionals deem to be an unwise decision cannot, by virtue of that decision alone, be regarded as not having capacity - this means that neither the Common Law doctrine of necessity nor the MCA can be used to overrule the rights of a capacitous person. Of course, if the patient were to lose consciousness they could be treated under the Common Law unless there were a prior direction or a donee of a POA intervened.
Although I am qualified as a BIA/AMCP I am finding it hard to keep up with changes in the legislation because this is not my day-to-day area of practice ... I need to refer to the guidance and sometimes take legal advice. Where individual clients / patients are concerned, the recommendation is always the same ... seek out a lawyer or specialist who practice this area of law and get specific advice.
Usual disclaimer applies - nothing herein should be considered as legal advice and you should seek qualified professional advice where appropriate.