Actually Using the Mental Capacity Act

We are still behind where we need to be in using the Mental Capacity Act:  I heard recently from an AMHP asked to under take a Mental Health Act assessment in an A&E department after police officers had ‘removed’ the person there “under the MCA because they wouldn’t come outside!” …… we also heard in the cases of ‘Sessy‘ [2011] and ZH v Commissioner of Police for the Metropolis [2012] how the Metropolitan Police had ‘used’ the MCA: –

No, no, no, no … NO! – where there are no acute medical emergency or life-threatening situation, but ‘merely’ a concern about mental ill health and a perception that early assessment was needed, it does not follow at all in law the MCA can be ‘used’ by the police.  I don’t say ‘merely’ to minimise the impact of the seriousness upon individuals of their condition, or of the importance of assessment, treatment and support – I use it to (badly?) differentiate between such events and imminently life-threatening medical or psychiatric emergency.

No ambulances were called, no AMHPs requested, no CrisisTeams engaged.  So potentially, such removal as mentioned by the AMHP, above, was illegal as agreed by the Commissioner of the Metropolitan Police in Sessey.  The phrasing of the background to these officers’ decision also implied to the AMHP that if they had been able ‘get’ the person outside their own house, they would have detained them under s136 MHA.  This is also illegal: in no way could officers argue in such circumstances that they had “found in a place to which the public had access” etc., etc..

Here is –

1. A Quick Guide to the MCA

2. A longer article with links to sections of the Act

3. A short screening tool to assess capacity – the “ID a CURE“.

Police responses to mental health crisis in private premises can be complex and I have written about them previously.  The police service has no powers in a private dwelling to coercively manage such situations unless additionally, there is a criminal offending committed or attempted; or unless there is a Breach of the Peace ongoing or apprehended – OR unless the health service are involved in supporting the care pathway and the decision-making.

My advice to officers on those situations is contained within a Quick Guide on the subject.  It can be difficult to manage.  In many areas, a CrisisTeam will not respond unless the person concerned is known to, or ‘open’ to, mental health services already – even if they do, CrisisTeams out of hours are usually nurses so cannot immediately initiate removal to a place of safety and cannot undertake formal MHA assessment.  Many AMHP services will not respond directly to a police or indeed to an ambulance service request to assess someone.  Out of hours GPs will often not respond to such instances at people’s homes to indicate whether formal assessment is required and activate that where it is.

As such, officers can find themselves in a position where they have followed the above Quick Guide and reached the point where they are still standing in a private dwelling along with a vulnerable person and being able to secure no support from the NHS or social care services, except perhaps for paramedics.  As stated: the ambulance service often have no greater ability to access out of hours mental health crisis pathways than the police – sometimes, less ability.

So, if you find yourself standing there with all the criteria for s136 having been met except for the geographical one, what can you do?  Any one of three things, obviously ranked from low to high risk situations, depending upon the features on the incident:

  • Leave the person in situ >> whilst making or having made relevant referrals to appropriate referrals to NHS or social care organisations.
  • Remain in situ >> whilst continuing to lobby for an assessment oriented response.
  • Use the MCA to remove the person >> having reached a point where it is argued it may be legitimately used.

In circumstances of non-imminent threat, decisions about the use of the MCA are for healthcare professionals.  This would include paramedics where they have been called – they often have greater MCA training than police officers and it is a CoP requirement that the police defer these decision to ‘health’ where possible.  But if you’ve tried everything else and failed to secure a resolution, it starts to make the use of the Mental Capacity Act justified as long as the criteria for using it are met.

Should the police be unable to engage the ambulance service or if they have to act with urgency before they arrive, this is the Quick Guide to the MCA, including a very practical tool to assess capacity shared with me by a paramedic and known as the “ID a CURE” test.

But let’s not be too quick to say, “Let’s just use the MCA” because it really is just not that simple.

EXAMPLES

A woman in her fifties is in her own home and she calls 999 threatening to kill herself.  Police are despatched and gain access to the premises, they find a woman who is under the influence of alcohol.  Police intelligence checks reveal previous attendances at that address in order to undertake mental health related support to the NHS and warning markers on PNC for mental health issues, suicide risk and self-harm.  Upon arrival, the police find someone who is under the influence of alcohol but not drunk, she has self-harmed although the injuries are superficial and she states that she has been trying to call her CMHT all day but not been able to get through.  There are no criminal offences and there is no anticipation of a breach of the peace

Can you use the MCA to remove her from her dwelling?  No.  Are you yet certain that she lacks capacity about the decision she is taking to drink and self-harm?  Even if you were, is the yet known to be the least restrictive thing to do?  There is no imminent, life-threatening risk, no literally urgent medical care that is required.  So how do you proceed?

  • Contact one or more of the following:
  • Ambulance
  • CrisisTeam
  • Patient’s GP

If they respond and take the lead, fine.  If they do not – for whatever reason you then have the following dilemma:

  • In light of what you know, do you reasonably believe that she lacks mental capacity (see the “ID a CURE” test).
  • In light of the threats and risks, is it proportionate to remove the person to A&E for assessment / treatment of injury?

Maybe – are there friends and family that could be brought into the situation? … would that help?! … if ultimately the answers are “No!”, or if all of that has been tried and failed, what do you do?!!

We will probably find different answers to this and they will be influenced by experience and personal judgement.  If you are going to ‘use’ the MCA to intervene – because not to do so when you reasonably believe the person lacks capacity to take decisions around self-harm or treatment would be negligent – ensure that the documented approach for doing so complies with the sections 2-6 of the MCA and that you involve your supervisors.

Again:  a Quick Guide to the MCAa longer article with links to sections of the Act – the “ID a CURE” screening tool.

______________________________________________________________________
The Mental Health Cop blog

Badgewon the ConnectedCOPS ‘Top Cop’ Award for leveraging social media in policing.
won the Digital Media Award from the UK’s leading mental health charity, Mind
– won a World of Mentalists #TWIMAward for the best in mental health blogs

ccawards2013 was highlighted by the Independent Commission on Policing & Mental Health
– was referenced in the UK Parliamentary debate on Policing & Mental Health
was commended by the Home Affairs Select Committee of the UK Parliament.

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6 thoughts on “Actually Using the Mental Capacity Act

  1. Interesting case study, commonly encountered. I’d say no to MCA, I think. If patient is threatening suicide though, that constitutes a ‘red flag’. It should go straight back to GP/CMHT/AMHP. Ambulance/police have no powers to act in these circumstances. Custom is, though, to get around this, because of the difficulty of going through the correct channels. Unfortunately, the more we all do this, the less impetus there is to improve the system so it’s done right.

  2. There’s warning markers on PNC for mental health issues? Are these automatic if you see a psychiatrist? Or are these if you have seen police before where it has been an issue?

    1. They are not at all automatic and certainly wouldn’t not occur purely because of seeing a psychiatrist. The PNC system allows officers to place what are either interest or warning markers on PNC, if they deal with an incident where they did not know something that they subsequently found out and which they would have preferred to know – if that makes sense. So search someone without any markers and find drugs, you’d add a drugs marker; violently resist on arrest and you’d add a ‘violence’ marker, etc.. There are markers for ‘mental health’, ‘self-harm’ and ‘suicide’ and if an officer dealt with an incident where they felt one or more of these were relevant, they could add them. When added they certainly do not remain there forever: they come off PNC after five years unless another officer re-enters the need for the marker. Markers are subject to supervisory authority – often the custody officer has to authorise them being placed on PNC and can be subject to appeal against relevance and disclosure under the DPA.

  3. It a re-post of mine but appropriate I think:

    External organisations put the onus on the police to do something but we’re partly at fault because we accept it and go on to do something. I’ll run a scenario and see if I can explain a little better.

    Ambulance calls police as somebody has self harmed by cutting there wrists, not life threatening but might need stitches, police turn up and the crew say that they are refusing to go with them to hospital and don’t have the capacity to refuse treatment.

    What we do now is ask them a few times then drag them out of the house into the back of the ambulance. 2 hours later they’re reported missing by the hospital because they’ve walked out of A&E. This kind of incident happens several times a day on my division and no doubt all over the UK.

    BUT……

    1) Just because the decision to cut their wrists seems silly to us doesn’t mean they lack capacity. More often than not Paramedics will not fail them on capacity if police use force because its paperwork for them. I now always ask them on what grounds they’re failing them on and I tend to get “Err…I suppose when you think about it they don’t” and if they do stick to them failing I ask to see the PRF (form they use at jobs) to see what they’ve written because “removed by police under the Mental Health Act” is not uncommon.

    CODES OF PRACTICE: A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

    Lets assume for a moment though that the person does fail.

    2) Ultimately what is it we’re taking them to hospital for? If it’s for the treatment to the cuts then why can’t a nurse attend the address and provide the treatment there? They’re not going to die so can be arranged for the morning. I know what you’re going to say about “they wont do it” but that’s their problem not the police’s. Leave it to the Paramedics to sort it out, it is after all a medical problem. This way we’re not using force, the treatment is still given and they wont be reported missing when they get bored in A&E and go home. If its just for a MH assessment then ther’es already case law to say we cant do that R (Sessay) v South London and Maudsley NHS Foundation Trust. If its both then we’re still shouldn’t be dragging them out, for the same reasons.

    CODES OF PRACTICE: Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action

    If however there is a risk of
    Resistance
    Aggresion
    Violence
    Escape

    Then we stay. If not leave it to the Paramedics to sort out. Police are by nature a group of people that like to get things done and this gets abused by other agencies. I’ll I’m saying is before you act think about a) is it your responsibility. b) are you best placed to to it? and c) is there another, less restrictive, way of resolving the issue.

    1. I feel like you are unfairly attacking my profession (paramedic) here with this. We have very similar training to the police with regards to this. The vast majority of these patients will easily pass a capacity to consent test. It is only about whether they understand what you are communicating, they can weigh it up in the balance of probable outcomes and they can communicate a decision back to you. Proving lack of capacity is very, very difficult. If you ask someone whether they understand if cutting their carotid artery will cause them to bleed to death and do they accept the consequences of that then, effectively, that would pass as capacity. We have a tendency to do things based around what we deem to be ‘best interest’ for the patient even though this isn’t strictly defined in law. We also get to a point where the patient is at risk, they have a history of self harm and depresson, no social support, doctors/mental health workers refuse to attend and the police refuse to remove them. We are unable to just leave scene due to having a ‘duty of care’ and it can get very difficult with it turning into a stand off lasting hours sometimes.

      1. How am I attacking your proffession? I’m fully aware of how the MCA works and agree with you that most people who self harm would have capacity. What I dont understand in your post is what you would like police to do? If they have capacity then even if it is in the ‘persons best interest’ then theres nothing anybody can do to stop them self harming. So again I ask what do you want the police to do? There is nothing the police can do that paramedics can’t in that situation? Yes it may take several hours to resolve but if the person has capacity and are not being aggresive etc why do police need to be involved? The short answer is they dont!

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