The Mental Health and Capacity Acts

To see any of the other paramedic series blogs, refer to the index:

---

MENTAL HEALTH ACT ASSESSMENTS

There is a difficult catch-22 situation for Approved Mental Health Professionals when they are trying to arrange to assess a patient in their own home, for potential admission under the Act.  The police will often say “Let us know when the ambulance service arrive” and you will say the opposite!  For all the reasons in the previous posts, officers will be reluctant to convey a detained patient in a police vehicle without some kind of clinical support; and paramedics may be reluctant to convey patients who may pose a risk to themselves or others.  All of that having been said, most MHAAs occur without police support.

An AMHP who wants to coordinate an assessment will require a “section 12 doctor” – this means a doctor “having special experience in the diagnosis or treatment of mental disorder.”  Most MHAAs involve an AMHP and two Doctors so that they may make an admission application under section 2 of the Act or under section 3; but where there is a difficulty getting a second doctor, s4 may be considered –

• Section 2 – detention for up to 28days of someone believed suffering from mental disorder, in order to assess them.  Once the nature of the disorder is understood, a patient can be transferred onto section 3, if necessary.
• Section 3 – detention for up to six months of someone for treatment of a mental disorder.  This order can be renewed if necessary – some patients can be detained for several years.
• Section 4 – detention for up to 72 hours of someone believed suffering from mental disorder.  If a second doctor subsequently agrees, patient can become a s2 patient.

One of the main debates for the police in the lead up to these assessments, is whether or not the AMHP has secured a warrant under s135(1).  The warrant will determine what authority the police have within that address to manage the risks which have caused them to be called – you’ll remember from a previous post in this series, that the police have no legal powers under the MHA in a private dwelling.  So they can only act by force to prevent crime or prevent a breach of the peace.

This issue about a s135(1) is also relevant to paramedics where you have jobs involving people ordering you out of their house.  Imagine that you were told to do so by someone you believe is in need of assessment and / or admission? – unless you can find lawful authority to remain there, you must comply with the instruction and the same applies to the police.  If you have ongoing concerns about mental ill-health that means you think the person should be compulsorily assessed or detained, then you’ll need to think about an AMHP obtaining a s135(1) warrant and attending with the police.  Obviously, if you believe you can remain in the premises because of an assessment of Mental Capacity which leads you to conclude that the patient lacks the capacity to take the decision, then you could consider remaining, but in those circumstances police support may be needed to ensure your safety and prevent an escalation of problems.

Where an AMHP has attended an address and made a written application for a patient’s admission to hospital, then the police and / or paramedics may detain and convey, if authorised by the AMHP to do so.

THE MENTAL CAPACITY ACT

This legislation is very challenging for paramedics and police officers, not least because none of us get very much training on it.  Although it has application to a large number of health and social care situations, it’s relevance to emergency services’ work is comparatively limited.  I have written other posts and a “Quick Guide” to the MCA elsewhere on the blog: suffice to say here that it usually emerges between the police and the ambulance service in the following situation –

You are called to an address where a patient is threatening to harm themselves and / or take an overdose, but they are doing so in circumstances where it is not a criminal offence and it is not a Breach of the Peace.  <<  This situation is quite common: a lot of police and paramedics I know are reporting that CrisisTeams and other MH services are starting to say “Ring the police” or “Ring an ambulance” when patients identify themselves as being in crisis and in need of support.  So whether police or paramedics were called to the incident, by the time we’re both standing there in that house, we have an issue of what kind of intervention can apply if we believe one is needed.

Firstly, if the situation revolves around whether someone needs admission under the MHA to hospital, then an attempt to arrange that should be made – via the CrisisTeam and / or an AMHP.

If you get to the point of feeling that you need to assess Mental Capacity Act to consider use of the MCA, then –

• Everyone is presumed to have the capacity to take their own decisions.
• To reach a position where a lack of capacity has been established and there is a lawful basis to doing something proportionate in the best interests of a patient, a capacity assessment should be undertaken.
• There are various tools for assessing capacity, but one that I put together after two bits of advice from a paramedic and a mental capacity trainer and former AMHP, is the “IDaCURE test”.

The police have been criticised by the courts for removing a person from their home “using the MCA” and taking them to a place of safety for assessment under the MHA.

FURTHER READING

Don’t forget three methods of using this blog to find out more:

• There is a full index of over 500 posts on all manner of topics.
• There is a series of “Quick Guides” originally intended for police officers, but some will be of interest to paramedics.
• There is a “Search” facility in the top right hand corner: any keywords on policing / mental health will bring up the relevant posts.

---

Update on 01st April 2015 – since writing this article, a new Code of Practice has come into effect in England.  It doesn’t substantially alter the post but certain reference numbers have changed.  My summary post about the new Code of Practice (2015) is here, the new Reference Guide is here and the full document is here.  The Code of Practice (Wales) remains unchanged.

---

Winner of the President’s Medal,
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award

 

All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2019

---

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 – www.legislation.gov.uk