It is important we understand at the outset: this Mental Capacity Act stuff can cause nightmares for partnership working because of the number of myths which already exist and because the police and many parts of the NHS have had little or no training. I’m going to do a couple of posts on it – first explanatory and then later I’ll do a punchy ‘guidance’ post for police officers applying it.
Update (May 2012) >>> A simple, handy tool to approach decision making when thinking of the Mental Capacity Act is The CURE Test.
Some police forces appear to have latched on to the MCA in various circumstances, but in particular for its potential to help resolve mental health crisis situations in private premises. There has now been a significant stated case about the MCA – the ‘Sessey’ case – after the Metropolitan Police considered its application to attending private premises where someone was suffering from mental health problems. In circumstances where they did not or could not get an AMHP to attend and assess under the Mental Health Act, officers considered whether the MCA allowed to ‘remove’ someone to a place of safety, as if under s136 MHA, in order to be assessed for admission to hospital under the Mental Health Act.
It was agreed between the claimant and the Commissioner that there was no power to do this and the court ruled that detention in the place of safety pending assessment, had been unlawful.
Here’s my rule of thumb: if you can avoid taking decisions – including mental health care decisions – implied by the Mental Capacity Act because there is time to call an ambulance or other health or social care professionals, you should do so. Any intervention should be restricted to those circumstances where you absolutely must intervene in order to preserve life or prevent serious injury and this means having regard to s4B MCA – only where intervention is necessary to mitigate an immiment, life-threatening risk. Principally, decisions around capacity and healthcare should be taken by healthcare professionals – this sentence is not my view, it is a requirement of the Code of Practice to the MCA.
SO HOW DO YOU APPLY IT?
- One should determine whether someone has capacity with reference to the test in s2 MCA – nobody is asking for scientific assessment, just a properly considered decision.
- Whether or not someone can take a decision for themselves is determined by the approach in s3 MCA.
- One may then undertake proportionate acts to safeguard someone’s best interests (understood by reading s4 MCA) , in accordance with principles explained in s1 MCA.
- Officers would then be protected from any legal liabilities ordinarily arising from that act, by virtue of s5 MCA, as long as they acted in good faith to do the right thing – the proper legal terminology is that you acted in the best interests of someone whom you reasonably believed lacked capacity.
- If doing the right thing involves the ‘restraint’ of a person, it must be done in accordance with s6 MCA.
- If one has assessed as per s4 MCA and acted in accordance with the principles of s1 MCA and acted within the spirit of s5 MCA, (then s6 MCA if restraint is required) it will provide a legal ‘defence’ to the action taken, as long as it was done in good faith.
- There is a good explanation of how to consider the principles which underpin the Act, within chapter 2 of the Code of Practice to the MCA.
1. The police are called to a private dwelling to a report of an out-of-hours GP with ambulance and family, attending to a man in his 80s who needs removing to A&E. The GP explains that the man is thought to have had mild dementia for some while although he normally lives on his own. The man is frail and confused because he has contracted a urinary tract infection which had affected his congitive functioning because it had become quite acute. He’d become extremely confused over the last three or four days and become unable to look after himself – not eating or drinking – and he has soiled much of his house because he has not been using the toilet. The GP explains that the infection has caught hold so severely that because of frailty, the man’s life is genuinely at risk if he is not taken to A&E shortly and treated with antibiotics. Between him, the paramedics and the man’s daughter and son-in-law, they’ve tried to get him to A&E, but he is refusing and they need help. The GP confirms that the man lacks the capacity to take this decision, because of the infection and his dementia.
2. You attend street to a report of a robbery where man has been badly beaten whilst on his way home from a night out. He appears intoxicated, but he has sustained head injuries in the beating and his wallet and phone have been taken. He is wandering in and out of the road when you arrive and all attempts to verbally manage him and encourage him to safety have failed. You use a low level of force to get him out of the road and the paramedics arrive. They express serious concern about the head injuries, because his face is already badly swollen and cut. You all attempt to get the man into the ambulance for removal to hospital, but he declines. Between you and the paramedics, it is suggested that his intoxication probably prevents him understanding the extent of his injuries and the potential consequences of them not being assessed and treated more or less immediately. They cannot rule out the possibility that the injuries sustained have been very serious indeed, potentially life altering and everyone is agreed that because of alcohol, disorientation and quite possibly shock and pain from the injuries themselves, he lacks capacity to decline treatment.
NOT A SUBSTITUTE OR THE MHA
The ‘Sessey’ case showed that where police officers attend a private dwelling to a non-life threatening situation – or not immediately life-threatening – that they should not use the MCA because no power to remove someone to hospital exists. The court reminded us that the statutory response to mental ill health on private premises, is for Mental Health Act assessment to occur led by an AMHP. If the urgency of the assessment means that only one DR can be involved, they can use the emergency admission mechanism under s4 MHA. The case was unequivocal, that the MCA should not be used to subvert the need for this approach.
(Potentially, officers consider the MCA because of an inability to secure prompt attendance to mental health crisis situations by mental health professionals. The answer to this, is closer partnership working with crisis teams and agreed support between the agencies and senior officers should ensure that this achieved through robust, reviewed protocols.)
There is more to be read on this within the NPIA Guidelines (para 6.3.1 on p87) and it is also worth reading the Code of Practice to the MCA particularly chapters 2 and 4.
Winner of the President’s Medal,
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All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2012
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
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12 thoughts on “The Police and The Mental Capacity Act”
Great blog entry. Just worth noting that s.5 offers protection from liability to prosecution if the decision maker can demonstrate a reasonable belief on the balance of probabilities that the decision which is being made for the person who lacks capacity is in the Person’s best interests.
Good faith alone might not offer protection as that might still imply someone acted unlawfully. Acting in someone’s “best interests” (s.4) would suggest lawful application of the MCA.
Many thanks – the error you pointed out has now been corrected and I’m genuinely grateful for you pointing it out.
The issue in our force since the ‘Sessey’ case has been what to do with people thretening suicide in there homes. There is little we can do now and What we can do takes hours to accomplish and is dependand on other organisations that are in no rush because police are already there. A call to a AMHP recently got the reply “Well now your there it’s your problem. We’ve nobody to send.”
Add to this the fact that NHS still think it’s either Section 136 MHA or a full blown MH assesment is needed then it again rolls back to police to resolve issues.
Male walks into A&E saying theyve taken an overdose. Patient is admitted and left for 4 hours alone while tests or done. Patient gets bored and walks out. Staff have made no effort to make even a basic assesment of the patients Capacity to refuse treatment and haven’t even bothered to keep a general eye on the patient. Police are then called to deal with a high risk missing patient.
Male cuts wrist in his own house. Police call Paramedics who deem them not to have the capacity to refuse through drink and drugs. Male take aainst will to hospital where Doctors and AMHP demand that the male is detained under 136 MHA. Despite being told the circumstances insist and in the end Sgts and Insps are called whilst the Male is still not being treated by staff.
There is only a tiny part of the MCA police rely on and it seems that nodody realises that.
MENTAL CAPACITY ACT NOT FIT FOR PURPOSE I AVER
In my opinion the Mental Capacity Act 2005 Section 44 is totally
abused on account of it not being properly construed. It is a
Nobody really knows who is “vulnerable” or what “mental incapacity”
There are no longer precise mental health disorders but just a
vagueness about a person who might have temporary psychosis being
forcibly placed under the Mental Health Act.
Even though these are not compatible laws, the Mental Capacity Act
seems to be misunderstood and therefore needs to be overhauled as
it is now being used in Mental Health facilities in ways not
originally deemed by the lawmakers.
The police are being asked to enforce unworkable legislation which
is contradictory with the overarching Human Rights legislation
which has to be the first priority, not the lesser MHA 1983/2007
and Mental Capacity Act 2005, however nice it may be to be able to
“pigeonhole” a person, it is simply not that simple, I aver.
Thus, I believe the police are being put in an invidious position,
as are the Multi-Agency partnerships which are unaccountable
because there is not a specific DATA CONTROLLER for the ordinary
person, such as myself, to write to ask for information – I have
tried but been told that they don’t have one.
This was not helped by the new Mental Health Act 2007 where the
DOLS just muddies the waters incredibly because it mixes the Mental
Capacity Act 2005 with the Mental Health Act 2007 even though it is
not possible to use the MCA2005 with someone who is under
MHA1983 who is not incapacitous, nevertheless unscrupulous
prosecutors might seek to exploit loopholes to prosecute people who
are innocent of any charge yet be deemed to be worse than rapists,
murderers and rioters simply because they do not see things in the
same way as others.
To me a “victimless crime” is very bad indeed.
If the so-called victim does NOT want a prosecution because the
so-called victim does not believe any crime to have been done, then
surely the CPS and Police and Courts should listen to that person
rather than seek to prosecute innocent people whose only “crime”
has been to care and protect and give every provision as the person
has wished and asked for, and provided for a good life to their
loved one. For which the loved one is most grateful and wishes to
return home to their relative but that the Crown Court and CPS has
other ideas because they want to prosecute come what may.
HUMAN RIGHTS ARE BEING TRAMPLED UPON ALL OVER THE PLACE AND IT IS
ESSENTIAL FOR THE LAW COMMISSION TO ADDRESS THIS TERRIBLE CRIME OF
THE MCA2005 44 CONTINUING IN ITS PRESENT STATE – YOU GOT RID OF THE
NATIONAL ASSISTANCE 44 – SO SHOULD YOU GET RID OF THE MCA2005 44.
THAT IS MY PETITION.
Mental capacity and mental incapacity is clearly defined in Ss.2&3 of the MCA as well as explained in the Code of Practice. The MCA is the first piece of law England and Wales have had which goes some way to protecting vulnerable adults (albeit by virtue of lacking capacity). I welcome s.44, as I suspect do many police officers, safeguarding investigators, carers and vulnerable adults.
The interface between the MCA/DoLS and the Mental Health Act is clear (the GJ case helps us with this). What causes the problems with such law is not the law itself but the application of, caused typically by a lack of knowledge, understanding and confidence in practice. To “get rid” of s.44 of the MCA would be a hugely regressive step when we have come so far legislatively to protect those who may not have a voice. Why would this even be considered?
The Winterbourne View situation clearly shows us good use of s.44 and how this has raised national awareness of protecting vulnerable adults who lack capacity. http://www.bbc.co.uk/news/uk-england-bristol-16963406
The reason I find the Mental Capacity Act 2005 not acceptable is precisely Section 44 because this was CIVIL code with a bit of CRIMINAL code added in which in sum makes it a “dog’s breakfast” and is neither one thing nor the other. Kate Lumsden, an eminent barrister, warns prosecutors to beware the Mental Capacity Act 2005 in her online article. And with reason.
For how does one decide the “balance of probabilities”?
I aver that it must be a very high test indeed.
But is that how it operates on the ground?
Has there been any further advice regarding the Mental Capacity Act from ACPO at the end of last year?
I have been informed by an Inspector that the ACPO advice is now not to use it at all even in emergency situations but I am unaware of this advice.
Before informing him that he is wrong, are you able to clarify this?
I would like to point out that the House of Lords Select Committee on the Mental Capacity Act 2005 is currently seeking evidence. It has to be in by the beginning of September 2013.
Hello – think illustrative real life examples are really helpful.
In my point of view the Mental Capacity Act 2005 Section 44 is totally
2 November 2013
I agree. The main problem is how do you ENSURE categorically that the person either has mental capacity or lacks mental capacity at that specific point in time?
And, moreover, if it is being assessed RETROSPECTIVELY how on earth can you be absolutely SURE that you have the “balance of probabilities” correct, especially as the bar is supposed to be extremely HIGH, and that the person is assumed ordinarily to have capacity, and you have to be totally clear that the person LACKS capacity.
I believe that this should be removed entirely from the Mental Capacity Act altogether.
I am not a fan of the Mental Capacity Act 2005 because it simply does not protect people and their Human Rights.
I’m an Inspector on ERT in Islington. Hoped you could email me your take on last nights debacle with LAS and hospital.
1. Male stabs himself in his chest at home. Persuaded to put knife down. MCA used to remove to hospital, NOT MHA because private premises.
2) LAS begs ignorance of using MCA at hospital.
3) I speak to their duty officer and explain to hospital what was done.
Q) what (if any) powers are there to keep this patient at hospital if he decides to leave once there?
Q) What powers are there to keep patient at hospital for MH assessment after MCA is used on private premises to facilitate physical medical attention?
Thank you for your guidance in advance.
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