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 –
- 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.
- 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.
- 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 states – 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. 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 –
- 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.”
- 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.
- 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.
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).
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