Sections 4A and 4B – Mental Capacity Act

These are the Mental Capacity Act (MCA) sections that everyone forgets to talk about – so I want to make sure I play my part in ramming them home! Several things cause this BLOG to be necessary in helping paramedics and police officers understand their application of the MCA and its potential to assist in ensuring the safety and wellbeing of people who lack capacity to take their own decisions. It concerns the circumstances in which an ‘urgent deprivation of liberty’ may be undertaken in someone’s best interests, where they lack capacity to take a decision for themselves.

If you’re not familiar with the Mental Capacity Act 2005 and its application by emergency services like paramedics or police officers, then a previous post will explain the overall outline. This post is only focussed on the need to raise the profile of these particular sections and their importance.

There are several motivators for this post –

  1. A paramedic seeking advice about an acute mental health crisis – this followed advice from a GP that they could rely, with police support, on the MCA to coerce someone to hospital during an acute mental health episode without additional medical concerns that made the situation life-threatening.
  2. Training I witnessed for frontline police officers – where no mention was made of this section in understanding the circumstances in which someone may be coerced to hospital and deprived of their liberty for many hours.
  3. Over a dozen occasions since moving to the College of Policing – where I keep having to say, “What about ss4A and 4B?!” only to see that the person explaining the relevance of the Act, hadn’t read it, hadn’t considered it or on many occasions, heard of it.

THE MENTAL CAPACITY ACT

The general idea of the MCA is the where someone has any impairment or disturbance of the mind or brain and is unable to communicate, understand, retain or evaluate information relevant to that decision, they can be said to lack capacity in relation to it. Therefore, someone may do the least restrictive thing in that person’s best interests with regard to that decision. If you’d like more detail about all of that, then above post expands on these principles and concepts. Here, I just want to focus on what that means where restraint is being contemplated and how that can in some circumstances become a ‘deprivation of liberty’ under the Act.

Restraint is the threat or use of force that restricts somebody’s freedom of movement.  Section 6 of the Act makes it clear that restraint may only be undertaken if it is necessary to stop the person suffering harm and that it is proportionate both to the likelihood of harm and to the seriousness of that harm. So for example, if officers or paramedics attended a home address where someone was threatening or about to take a very damaging overdose they would be permitted to restrain the person sufficiently to take those substances from them, assuming the other general MCA conditions were satisfied. The difficulty is about when restraint needs to become that deprivation of liberty.

Deprivation of liberty is not precisely defined in the Act itself: this is one of the reasons why several legal challenges resulted in a Supreme Court ruling in 2014 that had to rule on what a deprivation of liberty was. Lady Justice HALE, Deputy President of the Supreme Court, lead the judgement and ruled that someone was deprived of their liberty if they were “under constant supervision and control and unable to leave.” Commenting on a case in which the particular individuals were deprived in excellent conditions of care, she remark very memorably that “a gilded cage is still a cage”.

  • Section 4A states – This Act does not authorise any person (“D”) to deprive any other person (“P”) of his liberty.  But that is subject to the following provisions of this section, and section 4B.  D may deprive P of his liberty if, by doing so, D is giving effect to a relevant decision of the court [or Protection] … D may deprive P of his liberty if the deprivation is authorised by Schedule A1 (hospital and care home residents: deprivation of liberty)
  • Section 4B statesIf 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. The first condition is that there is a question about whether D is authorised to deprive P of his liberty under section 4A. The second condition is that the deprivation of liberty is wholly or partly for the purpose of giving P life-sustaining treatment, doing any vital act, or consists wholly or partly of giving P life-sustaining treatment, or doing any vital act. The third condition is that the deprivation of liberty is necessary in order to give the life-sustaining treatment, or do the vital act. A vital act is any act which the person doing it reasonably believes to be necessary to prevent a serious deterioration in P’s condition.
  • Summary of it all – “Nothing in the MCA allows you to deprive a person of their liberty even where they lack capacity unless it is necessary to provide life-sustaining treatment or to prevent a serious deterioration in their condition and this is the only practical way in the circumstances.”

And this is key – action taken where someone is urgently deprived of their liberty may only be entered into with a view to taking the matter before the Court of Protection.  Accepting that life-sustaining intervention will be the immediate priority in terms of stuff to do in that situation, it is incumbent upon everyone subsequently connected to that person’s care to bear in mind that s4B being lawful hangs upon efforts made to involve the Court of Protection in determining the relevant issue in the case.

CROSSING THE LINE

Imagine our potential overdose patient had, in fact, already consumed many tablets before you arrived and although you have taken possession of what remains you still have the dilemma of what to do. Clearly if paramedics were right there with the police indicating life was at risk and officers were satisfied that the general conditions were met, they would be able to take action by removing that person to A&E  for life-sustaining treatment. Of course, Doctors at hospital will then reconsider the whole case afresh and with their greater knowledge and skill-base decide whether or not to treat the person against their will and in some rare circumstances whether they need to go the Court of Protection in order to secure authority to do so.

A paramedic lead on the MCA and safeguarding once outlined a situation to me in which paramedics were called by a son who suspected that his father had taken an overdose. When paramedics arrived, the man relayed that he had taken various tablets the previous evening and gone to sleep expecting to die. Some 10hrs later it hadn’t worked and he was refusing to travel to hospital for medical checks, potentially because of his background of mental ill-health. Paramedics made enquiries with their control room and a health database called ‘Toxbase’ – this contains various bits of information about drugs of many kinds and they were able to deduce that the half-life of the drugs had passed. This is the period of time after which the potentially serious effects of taking the drugs has passed. Although they were convinced that he had ingested potentially fatal quantity of drugs and that he lacked capacity to take decisions around his own care becuase of his mental illness, they were no longer concerned that his life was immediately at risk so reliance upon the MCA to coerce him to hospital was ruled out. They contacted mental health services to conduct an urgent assessment with a view to Mental Health Act procedures for his acute mental illness.

So there are three points I am trying to counter here –

  1. That a paramedic or GP declaring that a patient lacks capacity to decline medical treatment is sufficient to allow the paramedics or police officers to coerce that person from a location to an A&E department. It isn’t enough – you need to satisfy those additional criteria in section 4B after remembering from s4A that “nothing in this Act authorises a person to deprive another person of his liberty.”
  2. That there needs to be an understanding – on the balance of probabilities – about the kind of harm that would result from inaction. Urgent deprivation of liberty is for situations where there is, or where there soon will be, a life-threatening risk – accepting that someone’s medical condition will not always be precisely understood in an emergency. That someone may suffer a lesser medical detriment is insufficient.
  3. You cannot just rely upon the MCA because someone else tells you that you should – it may well be that a paramedic has declared a lack of capacity for someone’s decision to receive medical care, but it remains appropriate for a police officer to ask for confirmation that the intervention is perceived to be a life-sustaining intervention, etc.. It would be right to ask further questions if this was not being confirmed.

SUMMARY

The unanswered question appears to be, after how long or when does restraint become a deprivation of liberty? We can imagine brief restraint or containment in someone’s private premises pending the arrival of paramedics to make a medical assessment of someone’s condition and those few minutes amounting to restraint. However, if that patient is then removed to A&E and held there by the police or security for several hours whilst Doctors undertake various medical and legal procedures, are they not then deprived of liberty? … forced to a location they did not and could not consent to be at, are they not there “under constant supervision, control and unable to leave”? It seems highly likely that they are and I’ve informally heard specialists’ opinion on this that they would be.

Please stick the considerations of section 4A and 4B in your legal armoury if you are a police officer or paramedic. Whilst I’m not a lawyer, everything written here has been legally checked more than once and subject to other scrutiny from people I know who have to apply and train the MCA so if you disagree with anything I’ve written in this post, please leave a comment below or email me via the contact sheet on the front page of my BLOG so I can continue the discussion with those whose advice has shaped my understanding.

If you want more detail and authority on this or doubt what I’m saying here, then I recommend Matt GRAHAM and Jakki COWLEY’s book (see below).  You may notice that pp165 and 166 bear some resemblance to this post and as the book is endorsed in its foreword by Alex RUCK KEENE who is a leading barrister on mental capacity law, it should be more than good enough for you and me!

FURTHER READING  —

  • A Practical Guide to the Mental Capacity Act 2005 – by Matt GRAHAM and Jakki COWLEY (2015).
  • Mental Capacity Act Manual – 6th Edition by Richard JONES (2014).

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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5 thoughts on “Sections 4A and 4B – Mental Capacity Act

  1. Mental Capacity Act 2005 – Deprivation of Liberty legislation vs Registered Lasting Power of Attorney for Health and Welfare

    I wonder if you can find out how a lawfully Registered Attorney might fit into the pictures which you paint above. Court of Protection Hearings which change the way legislation is made to operate, all seem to be based around those who lacking mental capacity from birth, or from sudden accidents or damage, have not had the possibility to make a Lasting Power of Attorney.

    But where for instance the person is elderly, and with severe dementias, many have made Lasting Powers of Attorney for Health and Welfare.. but even when lawfully registered, the attorney is being ignored, overruled, and generally treated as if they are a bit of a nuisance. That leaves the vulnerable person at risk of fear and harm.

    LPAs were introduced within the Mental Capacity Act 2005 (operational by 2007), yet the Deprivation of Liberty legislation was only added in 2009. Page 2, para 2 last sentence of the DOLS Code of Practice, clearly states: “The deprivation of liberty safeguards are in addition to, and do not replace, other safeguards in the Act.”

    That seems clear enough. The Registered Attorney deals, with all aspects of the health and welfare of the vulnerable person, according to his/her knowledge of and expressed wishes of the donor.. But everyone ignores the Registered LPA, until we turn round and effectively ‘slug it out’. And when it comes to Deprivation of Liberty, no mention is made of a Registered Lasting Power of Attorney for Health and Welfare. Its as if it is of no lawful consequence.

    I am trying to work out whether that is because legislators assumed that, already having been stated that the registration of the LPA has the effect of returning mental capacity to the vulnerable person, by virtue of that person’s use of the mental capacity of the Attorney (ie. ‘Attorneys must be treated as if they are the vulnerable person for whom they act – deciding on all health and welfare, living accommodation, clothing, food etc) that safeguard would keep the vulnerable person clear of the need for deprivation of liberty orders, since that person is already safeguarded (unless the Attorney can be shown not to be acting appropriately and in the best interests of the vulnerable person).

    Can you offer information which might keep a vulnerable person, who has made such careful – and lawful – planning, able to have rights and person protected by their Registered Lasting Power of Attorney for Health and Welfare, without an enforced DOLS?

    I am aware that the Law Commission is currently reviewing the DOLS legislation and that it will probably take at least another 12 months for it to report back. In the meantime experience has shown that the NHS and commercial nursing homes are still not recognising a lawful LPA as the safeguard it was thought to be. Does this also apply to he police? If so, those forward plans, made by a person formerly of sound mind, but now vulnerable, were utterly worthless.

    I would be grateful if you could enlighten me. Thanks

    1. This is not really something I can address, as most of it doesn’t apply to the police. If officers were called to a situation of grave urgency, they would apply to general principles of the Act. If it is not a situation of grave urgency, they probably wouldn’t get involved.

  2. Thanks for the very helpful summary of s4a and s4b MCA.

    I am an OOhrs AMHP and had a recent case where a patient required treatment for the effects of an overdose of paracetamol. She left the hospital before the treatment could start and after police involvement she was located at her home address but continued to refuse to return to hospital. This was referred to me for a MHA assessment and the police officers remained with her. The view of medical professionals was that the ladies refusal of treatment was potentially life threatening. She clearly lacked capacity as she had long standing mental health difficulties which were impacting on her ability to make rational decisions.

    My initial advice to the police was that they should return the lady to hospital in her best interests where the treatment could be commenced (again in her best interests) and a MHA assessment would be convened ASAP. The police refused to return the lady to hospital without a MHA assessment being carried out, despite my best efforts to convince them they had the legal authority to do so. I work at EDS and had other urgent matters to deal with however under the circumstances this case was prioritised. Nevertheless the home address was at the other end of our large local authority area and it was another two hours until the assessment was complete and she was transported to hospital having been detained under s2 MHA.

    Having read your blog I am even more convinced the lady should have been brought back to hospital by the police as a matter of urgency using s4(b) MCA. What’s your view?

    1. Taken at face value, I think I’d agree with you – these BLOGs are partly to influence officers about when they can act as much as warning against when they can’t. Of course the other point to make in your situation is that the longer we wait to act, the less likelihood of treatment succeeding or having complications and longer lasting effects, so even more reason.

      As I say, I think I agree with you!

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