Capacity Games

This blog is by Ella SHAW, author of Trying My Patients — it struck a chord with me for various reasons that will all become clear and is reproduced with permission.  Apart from the very obvious 999 grandstanding about purported superior knowledge of the Mental Capacity Act compared to one of Her Majesty’s finest constables(!), it is all entirely true.  I’ve tended to find the second best emergency service have to get their digs in whilst they can so we can agree to let them have this one because it’s Christmas. 🙂


FIVE HOURS EARLIER

As I walked into the room he was laying facedown on the bed, arm hanging over the side and bleeding heavily. A constant stream of blood was trickling out into the ever increasing pool on the floor. He was seemingly unconscious and very pale. I applied some significant pressure to the wound in the bend of his arm whilst trying to find out what had happened. It turns out that he wasn’t unconscious but just playing dead. Within a minute or so he was up and talking, full of bravado and attitude. I applied a pressure dressing to the wound and bound it up relatively tightly.

In terms of numbers he was OK. His pulse and blood pressure were stable and was showing no signs of shock despite the blood loss. That said, he needed to go to hospital. Clearly this was a cry for help and I wouldn’t be happy leaving him on his own. For a suicidal self harmer however, he was surprisingly up beat. Very chatty, very well spoken and extremely knowledgable about mental health law. He quickly made it very apparent he was not going to be going to hospital under any circumstances and was well aware that currently the ball was in his court. I had hoped some well chosen words and my power of persuasion could have made inroads with him but he was as determined as he was smug.

Plan B then. If I couldn’t force him to go to hospital, then I had to bring the most relevant bits of hospital to him. I discussed options with him and we settled on getting an out-of-hours GP to visit to ensure the wound was clean and appropriately dressed and then contact a mental health crisis team who WILL visit within two hours. Well, that’s what they are supposed to do! He was happy with the plan, his dad was happy with the plan and seemed in good spirits. I wasn’t happy with the plan but that was probably fed by the compulsion to do something for someone in crisis and not getting my own way. The patient had capacity so this was the best I could do! At a stretch the fact he was drunk could effect his capacity but I was able to have a more than rational conversation with about the pros and cons of staying and going and depute my disagreement with his opinion, it was after all his opinion and ultimately, his choice.

*REMEMBER THIS MOMENT*

At this point, no ambulance had arrived, so I phoned control, to tell them that the patient was refusing treatment so no ambulance was required.

“We also have the police running on this CAD, would you like them cancelled too?”

“Rog, patient is compliant and isn’t being aggressive. Cancel police.”

“Rog, thank you, red base out.”

I explained to the patient and his dad that I needed to go and get my paperwork and phone various people to arrange the referral. I needed to speak to our Clinical Support Desk, the GP and the Mental Health crisis team and that could take a little while to get the ball rolling.  What I did assure them of, was that I wouldn’t be leaving until I knew exactly when someone would be coming.

I went down to the car and started my phone calls. Midway through my first conversation there was a knock on the window. It was the dad looking rather panicked.

“He’s done it again, I can’t wake him, it’s bleeding everywhere.”

FACEPALM

I hung up the phone and rushed (Ambulance Run – above average walk) into the house and back upstairs. As I got to the landing I could hear the blood pouring onto the wooden floor. He was now lying on his back, other arm hanging over the edge of the bed and blood was literally pouring out of him. He was white as a ghost and unconscious. Again, I applied pressure and held his arm as high as I could. I was now in an extremely awkward situation. *REMEMBER THAT MOMENT* 

I was on my own with a bleed I was struggling to control. I had cancelled the ambulance and considering I had already waited 40 minutes and one never arrived, the chance of getting one instantly was minimal. I had also cancelled the police, who in this situation could be of great use!

You see the radio on my belt, twist it off, hold down ‘*’ to remove the key lock, then hold down ‘#’ (priority) for me.”

His dad followed my instructions and within a couple of seconds the radio started ringing.

“Hold down the button on the side for me.”

“Red base, patient has cut himself again, I need the police and an ambulance as a priority, I’m struggling to control the bleeding.” 

“Rog, will do that for you now, nearest ambulance is some distance away, sorry!”

“Right, take the key off my belt loop, in the boot is a big black bag with ‘Paramedic’ written on it. Bring me that bag please.”

Off he ran (non-ambulance run – actual running – weird phenomenon).  I managed to apply a pressure dressing to the arm which seemed to do the trick. This time bound even tighter than the first! On his return I got his dad to hold the arm in the air, allowing me to do other stuff. His blood pressure was in his boots so I got a cannula in him (for the medical lot, an orange in the back of the hand, sadistic git that I am) and started running some fluids through. The patient gradually became more coherent and was soon back and telling me to go away and leave him alone. Unfortunately for him and luckily for me, the leaving alone option was no longer viable.

First to my aid was the police. They helped me with everything I was doing and also attempted to convince the patient that now hospital was a must. He was having none of it.

“You can’t section me, I’m old enough to make my decisions and I’m not going to hospital. There is nothing you can do to make me go.”

“I think you’ll find we can.”

“What powers are you going to use to take me from my own home, a place of safety, right here and now. You can’t do anything legal and you know it.”

The poor copper looked a little stumped and unfortunately had no answer for him which somewhat undermined his authority.

Although the patient had apparent capacity to refuse treatment, on balance I now felt I had reasonable grounds to use the Mental Capacity Act to enforce treatment. As far as I was now concerned he lacked capacity to make an informed decision and didn’t appreciate the severity of his injuries. Unfortunately for the patient, he came up against someone with greater knowledge of mental health law than him. I was able to quote section 4(B) of the MCA at him and outline why the deprivation of his liberty was necessary. My rationale was because my proposed treated was wholly or partly for the purpose of giving life saving treatment to him and that, as the medical professional currently in charge of his wellbeing, I was well within my right to ensure he got treatment.

I explained all this in quite a self gratifying speech which left the patient looking rather deflated!

“Aaaaahhh, you just got schooled on the law by a paramedic, aren’t the police supposed to know more?! Embarrassing!”

I felt a little awkward but luckily the copper took it on the chin and seemed happy to follow my lead and confirmed to the patient that I could do what I was saying. I also backed that up by telling him that under section 6 of the MCA he could be retrained by the police to ensure said life saving treatment happened and to prevent further harm to himself or us. Faced with three people who were much more well read on mental health law than he was, he quickly got on board with what was going to happen and became compliant.

When the ambulance arrived he came voluntarily and was most apologetic to all of us. His initial reluctance to go to hospital was easily explained ……

FIVE HOURS EARLIER

A 23 year old guy who suffers from bi-polar and depression, who has a history of self harm and suicide attempts, is feeling particularly low. He is feeling suicidal and wants some help. He tries but fails to get hold of his crisis team. They simply don’t answer the phone. Because of these feelings, he has been drinking heavily but being self aware enough to know that he is likely to do something stupid, he self presents and his local A & E. He tells the triage nurse he has been drinking and is feeling very low and suicidal. He said he just wants to die.

The hospital is very busy, majors and minor are full and the waiting room is at bursting point. The triage nurse listens to a young guy tell her he has been drinking and apparently takes no notice of his medical history and wish to die, so puts him in the waiting room where he waits…..and waits. After 4 hours he got up and left. His cry for help had been ignored by mental health services and his local hospital.  He got on a bus and went home where he carried on drinking. And drinking.

He then smashed a glass, picked up a shard and rammed it into the crook of his arm. He then called his dad who was downstairs, to tell him what he had done. His dad phoned 999.

“My son has self harmed, he is bleeding from his arm quite heavily.”

“OK sir, help is on the way.”

“23 year old male, self harm, serious bleeding, access OK”

Luckily I was only round the corner so was on scene within a minute or so. I grabbed all my stuff and headed up the path for my first mental health of the night……

A patients outcome, positive or negative should not be based on luck. Luck that I was close by. Luck that his dad was in the house to find him bleeding when he did. Luck that the bleeding was stopped and he was quickly treated. This should be the basic of mental health care. There are services in place to not only treat this demographic of patients but to safeguard the risks that are associated with their conditions. A patient in crisis and at significant risk of harm should have instant access to their crisis team. Time and time again mental health services are impossible to access outside of ‘Mon-Fri 9am-5pm’. It just isn’t good enough. With the glaring failings in an understaffed, under trained and underfunded system, the safety net is always A & E. However, combine deep cuts, fed up staff and lack of training with winter pressures and a waiting room full of time wasters and the basics are simply overlooked.

There was no RAID (Rapid, Assessment, Interface and Discharge) or other liaison service made available or seemingly in place to allow a quick assessment of him. There was also no apparent risk assessment. After only 5 minutes with the guy and a limited knowledge of the Pierce scale of suicidal intent, I had him at a high risk of significant harm. His medical history and presentation alone raised enough Red Flags to warrant a rapid assessment. Instead he was left to his own devices in a waiting room of a busy hospital. Hardly the place for a vulnerable, suicidal young adult to be left. This job highlights the woeful inadequacies of mental health care from top to bottom of the NHS. When will this improve?!

So, mental health care in the NHS — discuss.


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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12 thoughts on “Capacity Games

  1. Woah, woah, woah!!

    ‘Unfortunately for the patient, he came up against someone with greater knowledge of mental health law than him. I was able to quote section 4(B) of the MCA at him and outline why the deprivation of his liberty was necessary. My rationale was because my proposed treated was wholly or partly for the purpose of giving life saving treatment to him and that, as the medical professional currently in charge of his wellbeing, I was well within my right to ensure he got treatment.’

    Section 4B MCA says that D is authorised to deprived P of his liberty WHILST A DECISION AS RESPECTS ANY RELEVANT ISSUE IS SOUGHT FROM THE COURT. It ain’t a general power to deprive a person of their liberty to administer life sustaining treatment, unless that is linked to an application to the Court. Was there a Court application here? It doesn’t look like it, and it seems unlikely.

    ‘I also backed that up by telling him that under section 6 of the MCA he could be retrained by the police to ensure said life saving treatment happened and to prevent further harm to himself or us.’

    Section 6 MCA can indeed be used to restrain, but not to authorise deprivation of liberty. So if this amounted to deprivation of liberty, then it cannot be used. Please check with your Trust’s legal team – it looks like you’ve been given some bad advice.

    1. This story was not mine to tell, so exactly what happened with regards to the consideration of an urgent court application at the scene or subsequently, I don’t know and have referred back to the author. That said, I have understood from other lawyers and social care professionals who train the Mental Capacity Act that where a person is seeking to rely on the urgent framework for life-sustaining intervention or to prevent a serious deterioration, that it would be sufficient and it would be the only practical way of handling things, to take that initial step to safeguard someone and immediately commence the process of application to the court once you are, for example, in A&E.

      Of course, if the nature of the required intervention was something that could be done at the scene, then removing someone to A&E would be unlawful. Perhaps, restraining someone to stop them taking medication that would kill or serious harm them, for example — no need to take someone elsewhere to stop them taking pills or self-harming. But if the only way to avoid death or serious injury and deterioriation were to remove someone to A&E where the necesssary medical skills, equipment and drugs were available, then are we saying this would not be allowed? In this latter example, I think of the job where a GP, paramedics and elderly man’s family are in his house where he has been living in choas for days whilst under the effects of a serious urinary tract infection that is so seriously affecting the man’s cognition and general health that the GP has concluded that unless the man is in A&E receiving anti-biotics he may die. He confirmed on request that he meant that literally and the risk was imminent given his generally frail physical health.

      If you are suggesting this is *not* sufficient, are we saying that the paramedic in this case stands in this man’s house, having concluded that he lacks capacity to decline medical treatment for what is now, in that paramedic’s view, a serious bleed and watch them exsanguinate whilst they work out via ambulance control how to consider making an urgent application to the court? Would you not agree it isn’t practical or viable to commence this at the scene and could be reasonably delayed for the 10-20 minute period it would take to get the person to A&E and then start from there. That’s certainly the (informal) advice I’ve been given previously from solicitors and MCA trainers interested in this field.

      Of course, all subject to the person intervening having applied a necessary assessment sufficient to satisfy s2 MCA and determined any proposed action in furtherance of s3 and the action being proportionate in accordance with s4 (subject to the caveats of s4A and s4B), etc., etc. —
      an interpretation of the MCA whereby the initial, immediate intervention considered necessary at the scene to get someone to hospital, at which point you immediately start the practical effort to engage the court for an application.

      One of the last things I would do for legal advice would be ask a mental health trust or police force solicitor — the list of what such individuals have approved for inclusion in joint protocols and policies on the operation of the MHA is literally breath-taking and examples that could get patients killed and professionals criminally prosecuted – loads of examples, actually – are available on request and littered throughout this blog.

      1. Hi there, I appreciate it’s frustrating (many, many, things about the MCA are frustrating), but the MCA is not the panacea it’s often taken to be. If the intervention involves depriving somebody of their liberty, then things get messy very very quickly with the MCA. There are only three bases for detention under the MCA: a valid DOLS authorisation (which could be urgent, but I expect even that would be outside the timescales here), authorisation by the Court of Protection, an emergency intervention whilst Court authorisation was sought. In this case, if the person lacked capacity, the treatment once he was in hospital could potentially be given under MHA if it were linked to mental disorder, meaning questions around eligibility for the DoLS would arise (which are horrendously complicated, in the face of a recent ruling), and the COP may not be able to authorise it. In any case, if the original decision to remove amounted to deprivation of liberty, retrospective authorisation could not be given. If the intervention was a DoL, I can’t see how the MCA would help you.

        Having said all that,in a situation like this I’d be surprised if a court reprimanded those intervening. I’m not sure what defence they’d allow, or power they’d suggest, but I would expect they’d look for something. In theory the doctrine of necessity has been supplanted by the MCA, although it might be argued that this situation falls outside it’s scope. Alternatively, the courts might get creative with the meaning of deprivation of liberty, and decide it falls to be considered under s6 MCA only.

        As ever, life is much messier than law, and law is always struggling to catch up.

  2. The patient obviously didn’t know that the MCA does not give you powers to transport them . . . Clearly what he needed was an effective responsible authority figure to take charge of his life. How can we legislate effectively for people who lack their own internal authority and are unable/ unwilling to take responsibility for themselves?. As a MHA Manager I see loads like this chap when we review theit CTOs – capacious, but unable/ unwilling to accept they have relapsing SMI – but resentfully accept the authority of the team with the CTO and want to avoid recall to hospital, so they see their care coordinator and take their meds, and [mostly] stay out of hospital longer etc.

  3. my son did this exact same thing twice this week -apart from he has learning difficulties too so doesnt know the law. he firstly stabbed himself in the arm but refused to allow me to request help or visit hospital. i cleaned and dressed the wound the best i could but i knew it needed stitching.

    later that day he was behaving aggressively so i requested police who calmed him and had a look at his arm and took him to the hospital where he was stitched and sent home.

    a few days later my sons partner ran into living room saying son has cut himself very bad this time. i went upstairs where son was aggressive but faint and bleeding all over the place with a very deep wound. i made her ring ambulance and asked for police also due to aggression. i bound arm tightly and put heavy pressure on deep wound to stop blood -which wasnt working to be honest. police arrived first -by this time calmed a little and was scared he was dying and they took over first aid as im disabled and had no strength left in my arms/hands to put pressure on. they checked wound and the blood had stopped pumping.

    anyway he was eventually taken to hospital and shoved in very busy waiting room which he cannot cope with due to being frightened near crowds and too hectic making his adhd and psychosis go into overdrive. they were taking ages to see him even though he was volatile and agitated. he rang me up and said he was coming home and not having stitches but i told him to go tell staff he was struggling due to mental health. he was saying he wanted to die because his girlfriend had dumped him because she couldnt cope with his self harming (she was at hospital with him). next i got call saying he has had his stitches but is coming home in taxi and not seeing mental health dr. he had just left the hospital without any assessment and is now 100% back in my care and he is still very unstable and feeling very guilty and hating himself.

    i dont have any nurse or team to call for help i am left alone to deal with a thirteen stone psychotic self harmer even though im a disabled 8 stone single lady? is there anywhere i can call apart from 999 when im struggling to contain and manage his behaviour? he doesnt have a local phyciatrist and is treated out of area by adhd specialist.

    later that night (27th dec) he started ranting again. i cant waste police time as he hasnt hurt himself and isnt hurting or damaging anything or anyone either. he is erratic -not sure if he has had illegal drugs but is unpredictable and unmanageable. he blames me for everything when he gets like this which is not contained i feel could turn nasty for me. anyway my 19 year old daughter who is home for christmas rang 999 and as she was talking to them he said go on ring police i will stab them all if they touch me and he picked up carving knife in kitchen. i shouted put that down you silly bugger and he did.

    obviously after hearing all of this the 999 lady on the phone sent armed response. they arrived searched him and decided he needed to be assessed seeing as he hadnt been that morning at the hospital. they took him away for breach of peace put him in cell and arranged assessment. he arrived back home in middle of the night. i dont know what was done or said at police station and i feel scared and upset that nothing has been done by nhs to help my son. police have been fab but mental health have again done nothing to help my son and myself.

    what do i need to do to get him more support so i dont have to phone police everytime he starts?

  4. I have to agree with Lucy Series. S4B MCA does not give carte blance authority to deprive someone of their liberty as this would directly contravene Article 5 of the Human Rights Act. However it may be used whilst the Court of Protection considers the application made by D.
    For me the biggest issue here is what is the impairment or disturbance in the functioning of the mind or brain which is believed to have caused a lack of capacity and what is the specific decision which P is unable to make? After incident 1 it was felt P had capacity but after incident 2 it was deemed he now lacked it, so setting aside the physical health issues what has changed in P’s mind or brain to suggest he now lacks capacity?
    Situations like this offer vexing dilemmas to health care professionals but I would steer well clear of citing s4B in the abscence of any determination being sought from the Court of Protection. It is in my opinion that in this case Ss5&6 MCA could have been considered to use reasonable and proportionate force to restrict P of his liberty in his best interests. Once in hospital DoLS could be considered if P required depriving of his liberty in his best interests, bearing in mind DoLS cannot be used to enforce any treatment.
    However, forcing someone out of their own home may be deemed by some to go beyond what is “reasonable and proportionate” so I should also point out that the Court of Protection has an accessible out hours contact number for emergency applications, 020 7947 6000, ask for ‘urgent business officer’. Why aren’t we using this service? It’s there to make determinations which health & social care professionals do not have the authority to make. Once you have lodged your application then you may consider citing S4B.

  5. This case fascinates me. Mental health regulations in the US are varied and quite open to interpretation. There is no way a person in the US would have been deemed “safe” to remain at home after the first incident, forget the second. But we also do not necessarily have access to “crisis teams” that may know the patient on a more intimate level. In my experience, every time any emergency services have been contacted (even a mobile crisis team, which is really just a therapist – and possibly a psychiatrist – who goes to the person to do an assessment) for any psychiatric issue, safety issue, or self injury, the person is transported to the ER. In FL, the laws are even more open to the discretion of the responder (police, medics, firefighters). Anyone can be “Baker Acted” (held for up to 72 hours for psychiatric evaluation) for merely “appears to have a mental illness” (from a brochure by the state’s social service agency). I wish the US would adopt the Human Rights Act… It’s very scary what you can be held and forcibly treated for here.

    Here’s a link to the brochure in case anyone is interested… very scary… http://www.dcf.state.fl.us/programs/samh/mentalhealth/docs/Baker%20Act%20Overview%202013.pdf

  6. Going to go against the flow here with it not being about capacity, but more about the language used to describe this person. Did the person say they were doing it as a cry for help so they could get the attention he needed? People self harm for many reasons, yes sometimes it is to get people to take notice of how badly they are struggling, but a lot of the time it isn’t. As someone who does self harm, I have had a lot of people saying I do it for attention and as a cry for help. This is crap and it really annoys me when people make these assumptions. It is quite stereotypical of people that self harm and gives them even more stigma and discrimination from others.

    Ok, so if he had said he was doing it as a cry for help, then fair enough. But sometimes people self harm as they can’t see any other way of dealing with the pain that they experience. As a last resort when they have tried all other methods of trying to keep themselves safe.

  7. The one thing everyone is forgetting here is that although we now have the MCA, the common law duty of care or ‘Good Samaritan’ principle can still be relied on IN EXTREMIS. Ambulance and A&E staff use it without thinking every day – e.g. unconscious RTA victims get ventilated & resuscitated – no consent – why not? – because they are unconscious and thus TEMPORARILY lack capacity. No body thinks twice about doing that and rightly so. As soon as the patient recovers enough and is coherent again they either consent or don’t.

    The problems arise when people are concious and wilfully act to prevent being treated to for the effects of their self-harming activities. Are they also judged to temporarily lack capacity at a time of extreme pain & distress as GoldenPsych describes in his/her comment? If not then we do have a gap in the law, common and statute – as the MCA expressly points out we are all at liberty to carry out any act or omit to act [so long as it has no potential to harm others than ourselves – that would be a matter for the police/ criminal law processes] that impacts our selves only that others would consider ‘unwise’, so long as we have capacity.

    I think this is the core issue for caring professionals trying to intervene with people in these situations. It may be that ‘society’ is avoiding exploring this issue for similar reasons to the difficulties many have with the euthanasia debate. The essential question that may always be difficult to answer is the balance between the duty of the State to intervene in the [private] lives of individuals and their rights to self determination and how and in what circumstances they should be limited. Generally adults are free to do what they like and suffer the consequences if no one else is harmed. Exceptions have to be explicit in society and therefore the law.

    1. I’ve afraid that is not correct, the common law doctrine of necessity can NOT be used if there is statute which covers the actions required. What you refer to as the Good Samaritan principle bring used on people who lack capacity is, in point of law, the application, albeit applied probably unconsciously by health care professionals, of the Mental Capacity Act, s4 best interest principles.
      Some still think common law Good Samaritan principle can apply for people who lack capacity due to an impairment or disturbance in the functioning of the mind or brain – this is incorrect. In such circumstances we are governed by the MCA and it is that and solely that which we shall use.

  8. To say that no one else is harmed by an individual killing themselves is dangerous rubbish. Suicide causes massive damage to at the vey least family and friends.This is ignored by people wanting to use the MCA to say people can refuse life-saving treatment.

  9. I may have misunderstood but having read round a little about the difference between restraint and deprivation of liberty, it sounds like deprivation of liberty was not at issue in that situation as what was being done could actually be classed as restraint as defined in the act: “the use or threat of force to secure the doing of an act that the individual resists”. From what I can gather deprivation of liberty only really applies in the long term. So whilst the paramedic may have referred to it as depriving him of his liberty, which isn’t legal within the act, what he was doing, i.e. restraint, seems to me to be perfectly within the bounds of the MCA. (although, admittedly, I am no expert!)

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