The Mental Capacity Act

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

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When I get asked about the Mental Capacity Act and what it may allow the police and / or the ambulance service to do, I generally say this in order to summarise it all:  “Stay clear of the Mental Capacity Act as something that allows you to do anything unless you are faced with an imminently life-threatening or serious risk situation.  And if you are a police officer, get the NHS into the situation as fast as you can, probably by calling a paramedic!”

It’s a simplification, but it is intended to circumnavigate all of the legal discussion that can sometimes follow.  This addition to the Paramedics’ Series emerges from a spontaneous discussion on Twitter yesterday between @NathanConstable and me, which was joined by various others from the medical and paramedical professions.  He has documented his specific queries and concerns in a blog, to which this is a reply.   But this post also follows on from certain questions posed to me during the College of Paramedics’ #PatientSafety2013 Conference in Birmingham.

From that discussion, it was clear that questions persist, including about the specific detail of what the law says and it focussed quite quickly on the potential of the Mental Capacity Act to offer a legal solution to the “non-compliant incapacitated patient” problem, especially if that situation is encountered in a private dwelling where the Mental Health Act cannot be used by the police.  And indeed it does, in some very limited circumstances.

SO WHAT DOES THE LAW ACTUALLY SAY?

Firstly, if you’re unfamiliar with the general thrust of the MCA, read my original post it which covers the general principles of the Act and the potential defences it affords to decision-makers, as covered in sections 1 to 5.

Section 4A of the Mental Capacity Act is key to a baseline understanding of what can and cannot be done in detention / restraint:

• “This Act does not authorise any person (“D”) to deprive any other person (“P”) of his liberty.  But that is subject to; (a) the following provisions of this section, and (b) section 4B.”  <<  The “following provisions” of the section is basically about court orders from the Court of Protection which will almost always not exist when paramedics and police officers are responding to 999 calls.

Section 4B of the Mental Capacity Act is then key to understanding what can be done, in extremis:

• “If the following conditions are met, D is authorised to deprive P of his liberty while a decision as respects any relevant issue is sought from the court —

1. The first condition is that there is a question about whether D is authorised to deprive P of his liberty under section 4A.
2. The second condition is that the deprivation of liberty is wholly or partly for the purpose of giving P life-sustaining treatment, or doing any vital act;
3. The third condition is that the deprivation of liberty is necessary in order to give the life-sustaining treatment, or do the vital act.

Section 6 of the Mental Capacity Act is important when it comes to the use of any restraint:

• “If D does an act that is intended to restrain P, it is not an act to which section 5 applies unless two further conditions are satisfied.  The first condition is that D reasonably believes that it is necessary to do the act in order to prevent harm to P and the second is that the act is a proportionate response to the likelihood of P’s suffering harm, and the seriousness of that harm.”

1. For the purposes of this section D restrains P if he uses, or threatens to use, force to secure the doing of an act which P resists, or restricts P’s liberty of movement, whether or not P resists.
2. Nothing stops a person providing life-sustaining treatment, or doing any act which he reasonably believes to be necessary to prevent a serious deterioration in P’s condition while a decision as respects any relevant issue is sought from the court.

In other words: whether you are a paramedic or a police officer – or for that matter a doctor or a person’s relative – you cannot deprive someone of their liberty except where they lack capacity and it is necessary to give life-sustaining treatment or to do “the vital act” to prevent a serious deterioration in their condition and any restraint used must be proportionate to the risks to the person from inaction.  There are no additional permissions or authorities for paramedics or medics than there are for police officers or even members of the public: only a far better skill base upon which to base a decision.  This is why the Code of Practice requests the police to defer their decision-making, wherever possible to more appropriate people.

Also ask yourself this to look at difficult decisions from the other angle — could inaction constitute an allegation of wilful neglect, as outlined in section 44 of the Mental Capacity Act?

SCENARIO BASED DECISION-MAKING

@NathanConstable had asked if I would write this blog in response to his own list of questions and situations.  Amongst them were three types of situation —

• Patient suffering from a serious physical illness and deemed to lack capacity to decline medical treatment—– examples in the real world have included an elderly man with a serious urinary tract infection which has so affected his cognition that he can no longer take care of his basic needs including ensuring that he eats and drinks properly.  A GP is advising that unless treated at hospital, he may die.  Others examples have included a man who is intoxicated and was hit by a car during a road traffic collision who now has an open head injury and is declining treatment.  Paramedics present are advising that unless treated at hospital, his condition could deteriorate into unconsciousness and in theory could be fatal.

• Patient suffering from a serious mental illness and deemed to lack capacity where there is active self-harming or overdose risks—– examples in the real world have included a lady with known MH history in her own home with knife to her own throat.  It is known that she has consumed alcohol, taken tablets in an attempt to OD and she already has cut her neck, albeit superficially, and she is still holding the knife to her throat threatening to harm herself yet further.  Whilst officers / paramedics are attempting to persuade her to put down the knife, she starts to quite vigourously cut into her own neck.

• Patient believed to be suffering from a serious mental illness with future suggestions of self-harm or overdose—– this is the “Sessey” situation where the Metropolitan Police got it wrong.  This is where the judge in the case reminded us that we should be calling an AMHP and a DR to do an assessment under the MHA, if need be having secured a warrant under s135(1) MHA.  It is important that this is tried and documented as having failed, preferably with reasons why, before considering anything else.

It is my view that the MCA could be relied upon to defend an intervention in the first two cases as long as it was believed that the person lacked capacity.  I would rationalise each intervention in my paperwork, roughly as follows, fleshed out with particulars of the incident and names of other advising professionals:

“Accepting that the MCA does not generally allow me to deprive someone of their liberty, I considered that such an intervention were necessary, aware of the requirements of section 4B of that Act.  Without depriving [the person] of their liberty and removing them to hospital for urgent treatment I could reasonably anticipate on medical advice that their life would be at risk or there could be serious deterioration in their condition.  I assessed their capacity using a standard tool in the limited time I had available and / or sought medical advice from the ambulance service about the risks of not acting who agreed a lack of capacity.  Against that background, I took the view that I had a legal duty to intervene to act in this person’s best interests given a lack of capacity to the particular decision of accepting medical treatment.  I considered whether or not other medical professionals could have provided support, assessment or treatment in the home and it was advised that the nature of the medical conditions involved  [specify them] prevented this approach.  It was therefore the least restrictive thing to do to remove the patient to hospital using as limited as restraint as possible where I advised medical staff of the legal circumstances of the patient’s removal and recommended that any decision by A&E to continue to deprive the person of their liberty should immediately be backed up by seeking appropriate authority from the Court of Protection for an ongoing deprivation of liberty.”

SESSEY v SLAM and the MET COMMISSIONER

I want to finish by just summarising the case of Sessey which always gets brought up in these discussions – do you remember the case?! —– the Metropolitan Police “used” the MCA in a private dwelling in order to remove a lady to a mental health unit place of safety where she would be assessed for admission to hospital.  In essence, they “used” the MCA instead of following the legal procedure to use the Mental Health Act, by arranging for an AMHP and DR to attend, with a s135(1) warrant if needed, to assess the lady in her home or remove her to a Place of Safety.  Relying upon the MCA, she was taken to a PoS anyway subsequently assessed and admitted under s2 MHA.  The lady challenged the original decision to remove her from her home and the Metropolitan Police admitted in settlement of the case that they had no power to do so.

It is important to remember what that case was about and therefore what it was NOT about: it is clearly stated in paragraph 1 of the judgement —

“The issue that arises in this case concerns non-compliant incapacitated patients, that is those who are not willing to be admitted and do not have the capacity to consent to admission, to psychiatric hospitals pending the making of an application for their compulsory admission to hospital for assessment under section 2 Mental Health Act 1983.”

So what is this case NOT about? — it is not about the potential of the MCA to offer a solution to very dangerous situations arising from someone’s incapacity following either mental or physical illness where someone is at imminent risk of serious harm, like in the first two scenarios, above.  It very definitely is about scenario three, above.

MORE RESOURCES

• Mental Capacity Act 2005
• Code of Practice to the MCA ’05 (2007)
• The stated case of Sessey v SLAM and the Commissioner of Police for the Metropolis.

• My original post on the Police and the Mental Capacity Act
• The “ID a CURE” test – a capacity assessment tool to aid decision-making used by the ambulance service.
• A “quick guide” to the MCA
• A subsequent post on Actually Using the Mental Capacity Act

And 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 wider 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.

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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.

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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, 2013

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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