LPAs and the Mental Health Act

What the attorney loses

If the donor is detained and treated under the Mental Health Act, the attorney cannot refuse the psychiatric treatment authorised by that Act, and cannot decide where the donor is detained. The Mental Health Act framework takes priority for those decisions.

What the attorney keeps

• Decisions about physical health treatment unrelated to the detention.
• Consultation rights: attorneys should be involved in care planning and section 117 aftercare.
• Welfare decisions once detention ends.
• Financial authority under a separate property and financial affairs LPA, which is unaffected.

A worked example

Consider Denise, who is detained under section 3 of the Mental Health Act for treatment of a severe depressive episode. Her brother Colin holds her registered health and welfare LPA. Colin cannot refuse the antidepressant medication the responsible clinician has decided is necessary — that decision sits with the Mental Health Act framework, not the LPA. But when Denise also develops a chest infection unrelated to her mental health treatment, the ward asks Colin, as her attorney, to consent to the antibiotic course on her behalf because she lacks capacity to decide it herself at that point. Colin is also invited to, and attends, the section 117 aftercare planning meeting ahead of Denise's eventual discharge, where his knowledge of her usual routine and support network shapes the plan.

Two systems working side by side

Practical steps

1. Give the ward and the responsible clinician a copy of the LPA.
2. Ask to be recorded as the donor's attorney for consultation and aftercare planning.
3. Consider whether the donor also needs an Independent Mental Health Advocate.
4. Keep notes of every meeting; aftercare disputes are common.

Why two frameworks exist side by side

The Mental Health Act 1983 and the Mental Capacity Act 2005 answer different questions. The Mental Health Act asks whether someone with a mental disorder needs to be detained and treated for the safety of themselves or others, regardless of whether they consent. The Mental Capacity Act, which is what an LPA sits under, asks whether someone can make a particular decision for themselves and, if not, who decides in their best interests. A donor can lack capacity for many decisions without ever meeting the threshold for detention, and a person detained under the Mental Health Act may still have capacity for decisions the Act does not cover. An attorney needs to know which framework is in play for each decision, because getting it wrong can mean acting outside your authority.

Community Treatment Orders and guardianship

• A Community Treatment Order (CTO) lets a patient leave hospital under conditions; the attorney is not the one who sets or enforces those conditions.
• Guardianship under section 7 of the Mental Health Act gives a guardian, not the attorney, the power to decide where the donor lives in specific circumstances.
• Where a CTO or guardianship is in place, the attorney's welfare authority narrows further around residence and treatment, but financial authority is again unaffected.
• If you are unsure which regime currently applies, ask the ward's mental health social worker or the community mental health team to confirm in writing.

Common questions

Read next

• What can a health and welfare attorney actually decide?
• Hospital discharge: an attorney's rights
• Mental capacity explained (and why timing matters)