Key Facts
- A Health and Welfare LPA is a legal document that gives an appointed attorney the authority to make decisions about your health and personal welfare.
- When it comes to mental health treatment, the Health and Welfare LPA faces a significant limitation.
- Despite these limitations, the Health and Welfare LPA attorney retains important powers over voluntary mental health treatment.
- Mental health medication is where the overlap between the two Acts becomes most critical.
- The attorney can consent to voluntary admission to a psychiatric facility.
A Health and Welfare Lasting Power of Attorney is a crucial legal document that allows you to appoint someone you trust to make health and welfare decisions on your behalf if you lose mental capacity. However, when it comes to mental health treatment, this power is not absolute. The Mental Capacity Act 2005 and the Mental Health Act 1983 work together to create a complex framework that can confuse both attorneys and families. Understanding what a Health and Welfare LPA can and cannot cover regarding mental health decisions is essential for anyone who holds this responsibility or is considering creating one. For a full overview of how LPAs work, see our complete guide to lasting power of attorney.
What Is a Health and Welfare Lasting Power of Attorney?
A Health and Welfare LPA is a legal document that gives an appointed attorney the authority to make decisions about your health and personal welfare. This can include decisions about medical treatment, where you live, what daily care you receive, and whether you consent to medical procedures. The attorney only gains these powers if you lack mental capacity to make the decision yourself, as defined under the Mental Capacity Act 2005. The Act assumes that everyone has capacity unless proven otherwise, and capacity is decision specific, not general.
What Is Mental Health Treatment: The Key Limitation?
mental health treatment, the Health and Welfare LPA faces a significant limitation. The Mental Health Act 1983 is a separate piece of legislation that takes precedence in specific circumstances. The Mental Health Act 1983 allows the government (through approved clinicians and mental health tribunals) to compel someone to receive mental health treatment even if they lack capacity and do not consent. This power is exercised through what are called sections.
If someone is detained under the Mental Health Act 1983, the Health and Welfare LPA attorney cannot override or challenge the compulsory treatment orders that result from that detention. The Mental Capacity Act 2005 explicitly recognises this restriction. In practical terms, this means that when a patient is sectioned, their attorney cannot refuse treatment that the mental health team deems necessary, even if the attorney believes the person would not have wanted it.
What the Health and Welfare LPA Can Cover
Despite these limitations, the Health and Welfare LPA attorney retains important powers over voluntary mental health treatment. If someone has lost capacity but is not detained under the Mental Health Act, the attorney can make decisions about accepting or refusing voluntary mental health treatment, including therapy, counselling, and antipsychotic medications taken on a voluntary basis.
The attorney can also make decisions about day to day mental health support, such as which GP the person sees, whether they attend mental health appointments, and what lifestyle changes might support mental wellbeing. They can consent to admission to a psychiatric facility if the person is receiving voluntary care (not detained). These powers are important because they allow the attorney to act in the best interests of the person who has lost capacity, even when it comes to sensitive mental health matters.
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What Is Medication Decisions and Compulsory Treatment?
Mental health medication is where the overlap between the two Acts becomes most critical. If a person is receiving medication voluntarily, the attorney can make decisions about whether they consent to that medication, including the type, dose, and timing. However, if that same person is detained under the Mental Health Act and their medication becomes part of a compulsory treatment order, the attorney can no longer refuse that medication.
This distinction matters because someone might lose capacity while already taking medication. The attorney might believe the medication should be changed or stopped. If the person is not detained, the attorney has the right to make that decision. If they are detained under the Mental Health Act, the attorney’s power is limited. The mental health team making the compulsory treatment order will make the medication decision instead.
What Is Psychiatric Hospital Admission and Detention?
The attorney can consent to voluntary admission to a psychiatric facility. However, they cannot consent to or resist detention under the Mental Health Act 1983. If a clinician believes someone meets the criteria for detention (they have a mental disorder, and there is a risk to their health, safety, or protection of others), the attorney has no power to prevent that detention, even if the person previously stated they would not want to be admitted.
Furthermore, once someone is detained, the mental health team has authority over most treatment decisions within the scope of that detention. The attorney cannot negotiate the length of stay, the treatment plan, or the type of medication administered if those decisions fall within the compulsory treatment order.
What Is Capacity in Mental Health Contexts?
An important principle to understand is that capacity is decision specific. Someone might have capacity to decide about some aspects of their mental health treatment but not others. For example, someone might have capacity to decide whether to attend therapy but not capacity to decide about medication. The Health and Welfare LPA only allows the attorney to make decisions in areas where the person genuinely lacks capacity.
Assessing capacity in mental health settings can be complex. The Mental Capacity Act 2005 defines four key elements: the person must understand the relevant information, retain that information, use it to make a decision, and communicate that decision. Someone with depression or anxiety might meet this test, while someone with severe dementia might not. The attorney should work with healthcare providers to clarify where capacity is lacking.
What Is the Role of the Best Interests Test?
When the attorney makes decisions about mental health treatment, they must follow the best interests test outlined in the Mental Capacity Act 2005. This is not the same as doing what the attorney wants or even what the person previously expressed they wanted. The best interests test requires the attorney to consider all relevant circumstances, consult with family members and carers, take into account any advance statements or wishes the person made before losing capacity, and avoid making decisions based on age, appearance, or other stereotypes.
In mental health contexts, this can create tension. An attorney might believe the person would refuse medication based on conversations they had previously. However, if the person has now lost capacity, the attorney must make the decision based on the best interests test, which may result in a different choice. The Mental Capacity Act 2005 requires this approach to protect vulnerable people.
What Is The Interaction Between the Two Acts?
The Mental Capacity Act 2005 and Mental Health Act 1983 were designed to work together but with clear hierarchy. The Mental Capacity Act 2005 provides the general framework for making decisions when someone lacks capacity. The Mental Health Act 1983 provides specific powers to override consent and capacity in mental health contexts where there is significant risk.
The key principle is that the Mental Health Act 1983 takes precedence when both Acts might apply. If someone is detained under the Mental Health Act, decisions made under the compulsory treatment powers of that Act cannot be challenged using the Mental Capacity Act 2005 framework. However, if someone is not detained, the Mental Capacity Act 2005 applies fully, and the attorney has broad powers.
What Attorneys Need to Know
If you are appointed as an attorney under a Health and Welfare LPA, several key responsibilities come with decisions about mental health treatment. First, you must understand that your power is not absolute. Second, you must work closely with mental health professionals to understand the person’s capacity at any given time. Third, you must document your decisions and the reasons for them, following the best interests test.
Attorneys also need to recognise when they have reached the limits of their power. If a person is detained under the Mental Health Act, the attorney should accept that the mental health team has authority and focus instead on supporting the person’s wellbeing within that framework.
What Is Advance Decisions and Mental Health?
Some people create an Advance Decision (also called an Advance Directive) to specify what medical treatment they do and do not want in the future. These can relate to mental health treatment as well. An Advance Decision can refuse specific treatments, but it cannot demand that treatment be given. Additionally, an Advance Decision does not override the Mental Health Act 1983. If someone is detained and an Advance Decision says they do not want antipsychotic medication, but the compulsory treatment order includes that medication, the Advance Decision cannot prevent it.
However, Advance Decisions do carry weight in the best interests assessment. If the person previously made clear they did not want a particular medication, and they are now being treated voluntarily under the Health and Welfare LPA, the attorney should take that Advance Decision into account when making the decision about consent.
What Is Working with Mental Health Professionals?
The relationship between the attorney and the mental health team is crucial when mental health decisions arise. Mental health professionals need to understand that the attorney has legal authority to make decisions about voluntary treatment. However, the professional also needs to explain clearly where the person’s condition might lead to detention under the Mental Health Act, which would shift decision making authority.
Good communication helps prevent misunderstandings. The attorney should ask the mental health team directly about capacity, the likelihood of detention, and the scope of any compulsory treatment orders. The mental health professionals should explain why they believe detention might be necessary and what treatment decisions would fall outside the attorney’s power in that scenario. This clarity helps everyone act in the person’s best interests.
What Is Life Sustaining Treatment Decisions?
Sometimes, mental health issues coincide with broader health concerns, and life-sustaining treatment decisions arise. The attorney can make decisions about life-sustaining treatment if the Health and Welfare LPA explicitly authorises it. However, the Mental Capacity Act 2005 requires that any decision to refuse life sustaining treatment must be made with particular caution and following a careful best interests process.
What Happens If the Attorney Disagrees with the Mental Health Team?
If the attorney believes the mental health team is not acting in the person’s best interests, what options exist? If the person has been detained under the Mental Health Act, the attorney can ask for a second opinion under the Mental Health Act procedures, but the attorney cannot reverse the decision. If the person is receiving voluntary treatment, the attorney can refuse consent to proposed treatment, and then the matter moves to dispute resolution.
The Mental Capacity Act 2005 allows for disputes to be resolved through the Court of Protection if necessary. However, this is expensive and time consuming. A better approach is usually to work collaboratively with the mental health team and seek mediation if disagreements arise. The attorney can also consult the guidance on whether an attorney can refuse medical treatment under a Health LPA.
Please note: Lasting Powers of Attorney apply in England and Wales only. Different rules apply in Scotland and Northern Ireland.
Frequently Asked Questions
Can a Health and Welfare LPA attorney refuse mental health treatment the person is receiving?
Yes, if the person is receiving voluntary treatment and is not detained under the Mental Health Act 1983. If the person has lost capacity, the attorney can consent to or refuse treatment based on the best interests test. However, if the person is detained under the Mental Health Act, the attorney cannot refuse treatment that is part of the compulsory treatment order.
Does a Health and Welfare LPA prevent someone from being detained under the Mental Health Act?
No. A Health and Welfare LPA gives the attorney power to make decisions when someone lacks capacity, but it does not prevent detention under the Mental Health Act 1983. If a clinician believes the criteria for detention are met, detention can proceed regardless of what the Health and Welfare LPA says.
What is the difference between voluntary and compulsory mental health treatment?
Voluntary mental health treatment is treatment that the person consents to, or that the attorney consents to on their behalf if the person lacks capacity. Compulsory treatment occurs when someone is detained under the Mental Health Act 1983, and treatment is given even if the person refuses. Once detained, the attorney cannot refuse compulsory treatment.
Can an Advance Decision refuse mental health medication?
An Advance Decision can state that the person does not want specific mental health medications. However, if the person is later detained under the Mental Health Act, the Advance Decision cannot prevent compulsory treatment under that Act. The Advance Decision does carry weight in best interests decisions about voluntary treatment.
Does the attorney need to consult the person about mental health treatment decisions?
Yes, the Mental Capacity Act 2005 requires the attorney to involve the person in decisions to the extent possible, even if they lack capacity to make the final decision. The attorney must also consult family members, carers, and other relevant people. This consultation helps ensure the decision genuinely reflects the person’s best interests.
TL;DR: Mental Health Treatment and Lasting Power of Attorney
A Health and Welfare Lasting Power of Attorney allows an attorney to make mental health decisions, but with significant limits. The Mental Health Act 1983 gives mental health teams the power to detain and compel treatment, which overrides the LPA attorney’s authority.
- The attorney can consent to or refuse voluntary mental health treatment when the person lacks capacity.
- The Mental Health Act 1983 takes precedence over the LPA when someone is detained under a section.
- Compulsory treatment ordered under the Mental Health Act cannot be refused by the attorney.
- Capacity is decision specific, so the attorney’s power applies only to decisions where the person lacks capacity.
- Good communication between the attorney and mental health professionals is essential for effective decision making.
More From Elwyn & Mabel
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