The Mental Capacity Act

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


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 METROPOLITAN POLICE 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

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.

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.


IMG_0053IMG_0052Winner of the President’s Medal from
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.


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9 thoughts on “The Mental Capacity Act

  1. So, can I seek your advice about something? In January of this year I was restrained, cuffed and dragged from my house by police who stated they were using the Mental Capacity Act, despite having explained repeatedly and, to my mind, rationally, why I didn’t want to go to A&E. Is this something I could complain about, or is it too late? If not, how do I go about it? Thanks

    1. You can make a complaint for up to 12 months after the event, so yes you can. You can either go to any police station and ask to make it, you could write to the Chief Constable who will send your letter to the appropriate place, probably the Professional Standards department, or you can do it to the Independent Police Complaints Commission, the IPCC.

      The IPCC have a website and you can make your complaint online to them at: http://www.ipcc.gov.uk

      They will then assess your complaint and forward it as appropriate for investigation. Let me know if you need anything more, very happy to support you in making it.

  2. I agree with everything you say here, and in the comments on Nathan Constable’s blog. When I teach First Aid, I often say to people that they should do ‘as little as they can get away with’ but that sometimes they may have to take their courage in both hands and do something anyway (usually in relation to the “don’t move them, you may make it worse” question). I think this could sometimes be applied to these situations.

    In my experience, where the MCA/MHA thing tends to go wrong is when (a) everyone disagrees with the patient’s decision even though they appear to have capacity (and, of course, they are specifically entitled by the MCA to make an ‘unwise’ decision) and/or (b) the professionals on scene (police/ambulance usually) are finding it difficult or impossible to get a satisfactory response from the MH services, and thus are feeling that the whole episode is very time/resource expensive and would be more simply resolved by enforcing A&E attendance. And let’s not get into the person with mental illness who also happens to have been drinking alcohol…….

  3. Hello. Stimulating as always. Other recent(ish) case law in relation to the deprivation of liberty safeguards seems to indicate that the provisions of the Mental Capacity Act, these being s. 5 (ordinary acts of care), and s, 6 (restraint) can be stretched a long way before there might be considered to be a deprivation of liberty. However, nothing wrong with the principle that staff should be conservative about the use of restraint and coercion. I’d just hate to feel that staff would be inhibited in intervening to promote safety and welfare. The case that suggests this high threshold for a potential threshold for a DoL is in the Supreme Court in October, so we shall see.

    1. Thanks for this – I’ll try and find the case and monitor it. I agree with what you say – I think there’s plenty of scope to keep people safe and it would allow restraint / deprivation of liberty where we’d need it too. I think mainly with the MCA, in both policing, health and social care, that it’s a lack of training around this law and what it potentially offers.

  4. Quick question about scenario 2. Female with knife to throat, but now not drugged or drunk, completely calm and with capacity and wanting police to leave. No 136, no mental capacity and no breach of the peace. Can’t leave to get amhp to assess because life may be taken. Always wondered about that one.

    1. Still have section 17 to stay on the property but no power to stop them cutting themselves IF they have the capacity to understand the consequences of their actions. I’d be calling for further patrols who can then arrange a MH assessment and a negotiator.

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