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The intersection of mental health law and clinical practice creates complex decision-making challenges for practitioners. A conceptual framework, which we call the Decision-making Triangle, offers clarity in navigating these challenges. This triangle comprises three interconnected elements: the acid test for deprivation of liberty, the definition of treatment under Section 145 of the Mental Health Act, and liability for detention under Mental Health Act [England & Wales] 1983 (amended 2007). The working knowledge for this article should arise from: Cheshire West: What’s to be learned? – Investigative Psychiatry, the MHA 1983 (Amended 2007), MCA 2005, the MCA Code of Practice, the MHA Code of Practice and various other pieces of case law.

Whilst much of this article is structed as if advice, it is strictly about the author’s opinion on what ought to be done as referenced against the law. Nothing here is binding on anyone. The ‘sue yourself‘ principle applies. If readers did not read it before, the Fat Disclaimer is here.

The significance of this framework lies in its practical application to real clinical scenarios. When continuous supervision and control meets the acid test threshold, it may align with activities that constitute treatment as defined in Section 145. Meanwhile, these same activities might indicate liability for detention under the Act. Understanding these relationships helps practitioners determine whether detention might be necessary or whether other legal frameworks could be more appropriate. The ‘triangle’ cannot avoid COMPLEXITY created by the law.

The triangle’s strength lies in its ability to clarify the complex interface between the MHA 1983 (Amended 2007) and the MCA 2005. It acknowledges the overlap between supervision, control and treatment activities, while maintaining distinctions between safety measures and therapeutic interventions. This framework supports practitioners in making legally sound decisions that protect patient rights while ensuring appropriate care and treatment. The triangle’s weakness is that it cannot avoid complexity and overlap created by the law as it exists.

Unpacking the ‘triangle’

The interaction between the three elements of the triangle creates a complex decision-making framework.

Primary Interactions:

Acid Test and Treatment Definition

• When continuous supervision and control exists, it may overlap with activities defined as treatment in Section 145 MHAd
• These activities might include nursing observation, therapeutic engagement, or psychological support
• The key distinction lies in whether supervision serves treatment purposes or merely safety/care functions that are unrelated to mental state or condition.

Acid Test and Liability to Detention

• Meeting acid test criteria does not automatically create liability for detention
• However, the nature of supervision and control may indicate treatment needs requiring consideration under MHA
• The inability to leave, combined with supervision needs, may suggest underlying treatment requirements

Treatment Definition and Liability to Detention

• Activities constituting treatment under Section 145’s definition inform decisions about potential requirement for detention
• The nature and degree of mental disorder must warrant hospital treatment (inter alia) for detention under MHA 1983 (Amended 2007)
• The necessity for health/safety/protection of others must align with defined treatment activities

Cumulative Effects:

When all three elements intersect or overlap:

• Complex clinical scenarios emerge requiring careful legal consideration
• The intensity of supervision may indicate both treatment needs and detention requirements
• The distinction between MCA and MHA frameworks becomes crucial
• Risk assessment becomes multifaceted, considering both immediate and longer-term needs

How it could work

When all three elements of the triangle are considered, we see complex interactions that create both challenges and clarity in clinical decision-making. Those boil down into two main areas.

Cumulative Effects

The presence of continuous supervision and control may constitute treatment as defined in Section 145 MHA. This same supervision might indicate liability for detention under Sections 2 or 3 MHA. However, practitioners must carefully distinguish between supervision for safety and supervision as part of defined treatment activities.

The intensity of supervision often reveals underlying treatment needs. When combined with the inability to leave, this creates a complex matrix of considerations about the appropriate legal framework. The overlap between MCA and MHA jurisdictions becomes particularly relevant when all elements are present.

Practical Implications

Practitioners (namely the author) must navigate several key decision points:

• First, they must determine whether continuous supervision amounts to deprivation of liberty under the acid test.
• Then they should assess whether this supervision aligns with activities defined as treatment in Section 145.
• Finally, they must consider if the nature and degree of mental disorder warrants detention.

This creates challenging scenarios requiring careful analysis. For instance, when a patient requires continuous supervision, practitioners must determine whether this observation:

• Meets the acid test threshold
• Constitutes part of defined treatment activities
• Indicates a need for detention under MHA

Continuous supervision does not mean ‘constant’ supervision or ‘constant observations’. It means frequent enough to protect against a risk. Risk is a probability not an event. Therefore ‘continuous’ could mean at intervals and protective of *foreseable harm. If the operational duty to protect Article 2 Rights is involved even more careful consideration is needed. [*foreseeable (in law) does not simply mean predictable.]

The framework helps distinguish:

• The borderland between supervision for safety and treatment as defined in S145 of the MHA 1983 (Amended 2007).
• Deprivation of liberty requiring MCA authorisation versus MHA detention
• Clinical needs in the mix of legal requirements

Risk assessment and control becomes multifaceted, considering:

• Immediate safety needs
• Treatment requirements
• Legal obligations
• Patient rights
• Less restrictive and proportionate options

The triangle framework could provide structure to these complex considerations and decision-making, helping practitioners maintain legal compliance while meeting clinical needs.

Deeper into the Triangulated Web

The Human Rights Dimension

It must be kept in mind how and why all this has become so tangled. Long story short: It is about protecting Human Rights. That’s a big deal because Human Rights are of Constitutional importance, in a Nation without a written Constitution – unlike in America for example. Human Rights law (HRA 1998) imported into domestic UK law what is known as ‘positive rights’. That’s not just about something being positive. It is a special form of Rights. Normally UK subjects only had ‘negative rights’, which means they were only allowed to do what was not prohibited by law. The burden was on the individual to prove that some contested action was ‘not prohibited’. The switch to positive rights meant ‘you’ are give a freedom without having to prove that your actions were not prohibited. The burden switches to the State not to offend, unlawfully infringe or restrict various freedoms. Whilst there are lots of debates about the distinction between positive and negative rights, positive rights is the nature of the big issue. After the HRA 1998 came into force, all UK laws relevant to people’s freedoms and previous restrictions, had to be interpreted in accordance with positive rights.

The MHA 1983 (Amended 2007) is compliant with the HRA 1998. The MHA 1983 can and does lawfully infringe, or restrict certain rights (commonly Articles 5 and 8). Laws can be challenged if they are proved incompatible with the HRA 1998 by a special legal procedure, but laws cannot be ‘struck’ down automatically on proof of incompatibility with the HRA 1998. The MHA can impose on Rights which are not absolute. Only two Rights are absolute – Article 3: Prohibition of torture and inhuman or degrading treatment and Article 4: Prohibition of slavery and forced labour.

Unknown to most, the operation of the MHA 1983 even before it was amended in 2007 incorporated and/or recognised Human Rights e.g Winterwerp v Netherlands 6301/73 [1979] ECHR and Megyeri v Germany 13770/88 [1992] ECHR 49. In the backdrop several common law cases that reached the European Court of Human Rights would have changed how MHA 1983 procedures were to operate. All that is probably for a seperate dissertation.

Article 2 (Right to Life) ought to be considered always, in decision-making. For more see: Article 2 in Psychiatry – Savage and beyond.

Practical application of the law

In this part Sections 136, S5(2) and Section 2 are considered.

Areas of application common to each

Initial assessment of mental disorder: The practitioner must establish whether a mental disorder exists within the meaning of the MHA. This requires clinical evaluation of symptoms, behaviour, and history where available. The assessment must determine if the disorder is of a nature or degree warranting consideration of hospital admission.

Application of the acid test: The practitioner must consider whether the person is under continuous supervision and control, and not free to leave. This assessment remains constant across all sections. However, the overlap between supervision and activities that constitute treatment as defined in Section 145 requires careful consideration. The acid test helps determine whether any deprivation of liberty exists, or would follow, regardless of the section being considered.

Consideration of treatment activities as defined in Section 145: Section 145 provides a definition of what constitutes treatment under the MHA. This includes nursing, psychological intervention, specialist mental health care, and rehabilitation under medical supervision. Some will be surprised that ‘medication’ is not in the definition. A practitioner must consider whether the person’s needs align with these defined treatment activities, without implying that Section 145 itself authorises treatment (it does not).

Evaluation of detention criteria: For all sections covering detention, practitioners must assess whether legal detention criteria are met. This involves evaluating if hospital admission is necessary for the person’s health or safety, or for the protection of others. The assessment must consider whether the purpose of admission aligns with the specific section’s requirements for assessment or treatment.

Capacity assessment: The practitioner must assess whether the person has capacity to make decisions about their care and treatment. This includes understanding relevant information, retaining it, weighing it up, and communicating their decision. However, there is some confusion as to whether capacity under the MHA 1983 is different to capacity under the MCA 2005. Gluttons for punishment click: A Tale of Two Capacities or is it One? – to learn more. The assessment must be decision-specific and documented clearly. Capacity can fluctuate, requiring ongoing review. The capacity must include understanding of any restrictions, limitations, or intrusions on Human Rights.

Compliance considerations: Even when a person has capacity and agrees to admission or to remain in the S136 bed, the practitioner must assess whether this compliance is genuine and likely to remain stable. They must consider whether the person truly understands what they’re agreeing to, and whether their apparent compliance might mask underlying resistance or ambivalence about treatment. AM v South London & Maudsley NHS Foundation and Secretary of State For Health [2013] UKUT 365 (AAC) clarified the need to evaluate the following:

1. Capacitious and compliant: The person understands their situation and agrees to supervision and control and/or treatment. They can be admitted informally under Section 131 MHA, provided their compliance remains genuine and stable. Practitioners must monitor for any changes in capacity or compliance. Note however, that the concept of consent in the MHA does not rest on the same four tests of capacity in the MCA 2005. The CQC invoked an overlay of MCA considerations of capacity on the MHA. The CQC is not an authorised or recognised law-making body. Gluttons for punishment may click: A Tale of Two Capacities or is it One? – to learn more.
2. Capacitious and non-compliant: The person understands and agrees to supervision and control but refuses treatment or is incapable of consenting to treatment. If they meet criteria for detention under MHA, formal admission may be necessary. Their capacity to refuse treatment does not prevent use of MHA if criteria are met.
3. Non-capacitious and compliant: This combination requires careful consideration. Despite apparent compliance, lack of capacity means they cannot give valid consent to to supervision and control and/or treatment. Practitioners must consider whether MCA/DOLS framework suffices or if MHA is required based on defined treatment needs.
4. Non-capacitious and non-compliant: The most straightforward combination for decision-making. If supervision and control and/or treatment.needs alignment with defined activities and detention criteria are met, MHA framework is likely appropriate rather than MCA/DOLS.

However – note carefully in each of the above, the bordeland where continuous supervision and control may cross into the defintion of treatment under S145 MHA.

I did not invent the law on any of this. The ‘triangle’ warned about complexity!

Key decision points

Across all the above the following need careful consideration:

1. Initial Assessment Point: The urgent nature of S136 and S5(2) means rapid assessment of capacity and compliance is needed under time pressure. With S2, there’s usually more time for thorough evaluation. However, all situations require clear documentation of how capacity and compliance were assessed.
2. Treatment Definition Point: When activities align with treatment as defined in Section 145, practitioners must consider whether the person’s capacity/compliance status affects the choice between MHA and MCA frameworks. This becomes particularly crucial when continuous supervision and control exists.
3. Risk Assessment Point: The level of risk combines with capacity/compliance status to inform framework choice. High risk with any non-compliance (regardless of capacity) often indicates MHA consideration. Lower risk with compliance might allow consideration of less restrictive options.

Conclusion and takeaway points

The ‘Triangular Framewok’ offered clarity but did not guarantee no complexity. The laws applicable in Psychiatric practice have become a tangled web. By ‘laws’ I mean both Statute and case law.

Complicating matters is that it cannot be assumed that ‘capacity’ (and therefore consent) under the MHA 1983 are the same concepts under the MCA 2005. Under the MCA 2005: capacity + free willing agreement = consent.

The structure and issues arising from the framework if thought about closely can assist in decision-making.

The objectives of this article were not to advise psychiatrists and other mental health practititioners ‘what to do’. Rather, it was to pick out important areas where mental health practitioners can leverage their knowledge, skill and experience.

With great hesitation the author is working on an algorithm to encapsulate the main considerations in this article. Do not expect it to provide ‘answers’.