- This guide is an attempt to “operationalise” complex issues and you should refer to your area’s policy and your supervisors for specific local requirements.
- INITIAL ACTION
- To determine whether or not someone lacks capacity the “ID A CURE” Test can be applied –
- Impairment – is there an impairment (temporary or permanent) which prevents the person from being able to ‘CURE’, as below; OR
- Disturbance – is there a disturbance of the mind (temporary or permanent) which prevents the person from being able to ‘CURE’, as below;
- AND AS A CONSEQUENCE OF THAT IMPAIRMENT OR DISTURBANCE – just one of the follow factors then need be absent for the person to lack capacity:
- Communicate – can the person communicate their decision to you (even if not verbally)?
- Understand – can the person understand the information that would enable them to make the decision?
- Retain – can the person retain the information in order to make the decision?
- Employ – can the person employ the information to make the decision effectively?
- SUBSEQUENT ACTION
- If action involves removal to a healthcare facility, either a psychiatric unit or an Accident & Emergency department, ensure that NHS staff are made aware that the Mental Capacity Act has been applied.
- Inform your sergeant that this action has been taken so they can support your actions / decisions.
- LEGAL REMINDERS
- Determine capacity with reference to the test in section 2 MCA – not a scientific assessment, just a considered decision.
- Whether someone can take a decision is determined by the approach in section 3.
- Undertake proportionate acts to safeguard someone’s best interests (understood from section 4), in accordance with the principles in section 1.
- According to section 4A: no-one is authorised to deprive another person of their liberty, unless it is a section 4B response to the need for life-sustaining treatment or to prevent a serious deterioration in their condition.
- A deprivation of liberty occurs where someone is “under constant supervision, control and unable to leave.“
- Do your actions create such a situation? – it’s vital to understand this.
- Officers are protected from legal liabilities for any actions taken in accordance with the MCA, by section 5.
- Any ‘restraint’ must be done in accordance with section 6.
- Any ‘deprivation of liberty’ must be justified by section 4B – life-altering or life-threatening?
- See a more comprehensive post on the Mental Capacity Act for the police.
- See a link the fully explains the urgent deprivation of liberty / urgent restraint laws.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions 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.
Government legislation website – http://www.legislation.gov.uk
3 thoughts on “Quick Guide – Mental Capacity Act”
I.D A Cure was picked up by police whilst manic, sent to prison whilst manic, brought before magistrates who sent me down for contempt for barking in answer to their questions.
Can you please answer this question. Paramedics and Police are on scene in a private premises. The vulnerable person is suffering a medical emergency and the paramedic has deemed they lack capacity. But the refuse to come with the ambulance. Do we (the police) have a power to restrain and remove even though it is not us who have deemed them lacking capacity. ?
Paramedics and police are on scene in a private premises. The vulnerable person has taking an overdose but refuses to leave. Again what can we do?
PS Met Pol
It depends on the nature of the medical emergency. There is certainly no problem with the police acting after a more qualified health professional has declared that someone lacks capacity. The thing you have to be satisfied of – I’d want it explained to me – is what, precisely, do they lack capacity for? Presumably, it is around consent to medical treatment. THe next questions are –
1. Can we help this person achieve capacity in anyway, by giving them time, communicating differently, etc.? If not,
2. Is physically removing them to A&E the least restrictive thing, in their best interests?
To remove someone’s liberty and hold them in a form of detention, depriving them of their liberty, is only ever justified under the Act itself if you are doing it “in order to provide a life-sustaining intervention” or to do a “Vital act to prevent a serious deterioritation in their condition.” If you are happy that they cannot be helped to achieve capacity, that removal to A&E is the least restrictive thing in their best interests and that it is necessary to provide a life sustaining intervention, then you will be able to defend your actions under s5 MCA. If you are not satisfied of these things, then such an intervention would not be justified.
Does that make sense?!
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