I have had lots of conversations, emails and indeed tweets over the years with police officers about reliance upon the Mental Capacity Act to justify intervening where other professionals have declared someone to lack capacity about some medical matter or other. Most usually, it is connected with a decision by someone to decline medical care in situations where 999 services end up jointly addressing the question of whether to allow them to do so. On the one hand, some police officers have been scared witless about justifying their intervention under the MCA because of the Sessay case (2010) and on the other hand some seem only too keen to start coercing the vulnerable because a paramedic or a doctor has said they should. This BLOG post is about the latter situation (although the former position isn’t right either!) … can you rely upon an other professional’s judgement where the Mental Capacity Act is being bandied about?
Yes – and no! – that’s the answer. But mainly, No!
I once attended MCA training that had been provided by a police force to its frontline officers and amongst other points made, the AMHP who was delivering the training said, “If a paramedic tells you that someone lacks capacity and needs to go to hospital, then you can use reasonable force to take them there.” I wrote this down at the time, hence I’m able to quote it directly many months later and I did so because it was the only way I could distract myself from the overwhelming urge to leap out of my chair and undermine the trainer in front of everybody. There was no further qualification to this statement and that is precisely the problem: no mention in the overall training about the difference between restraint and a urgent deprivation of liberty; no mention of s4B of the MCA which qualifies those circumstances in which an urgent deprivation of liberty may be inflicted upon someone – just the quotation as given as the first example of how to put in to practice the decision-making that the paramedic will have gone through leading up to requesting the police.
In other examples, there was the tweet by an officer who was keen to show the work of the police that they were taking someone to hospital under the MCA and when I enquiried about circumstances because of my interest in this, the logic behind the coercion was that the paramedic said it needed to happen. Just today, I received an email from an officer with an exactly similar situation: and the same reaction – a paramedic has declared a lack of capacity so “that’s up to them”, implying it bound the officer to act … it really, really doesn’t!
You need to know much more.
This is the real problem: you can’t just justify your actions after the fact by simply saying “I was only following orders”. The AMHP trainer and the officers are wrong in these situations because whenever a professional is using physical force to coerce another human being, they have to be able to justify this on their own terms. A paramedic may well tell you about capacity, but they can only help inform your view about proportionately. Imagine the person who is coerced to hopsital complains to the duty inspector that the officer involved assaulted them and imprisoned them against their will. On the face of it, the officers actions will have amounted to this unless they have a legal justification for doing these things? Officers usually make detailed notes where force has been used, and the legal basis for doing it. If I saw their statement or their official notebook and it just said, “The paramedic said I had to!”, I would be quite alarmed!
And here’s why –
The paramedic, of course, is far better placed than any police officer to make a clinical assessment of someone’s needs and to know the particular kind of clinical response that would be necessary. This is not what I’m questioning – not for a moment. What needs greater thought, is whether or not coercion to hospital is the least restrictive thing and / or a proportionate response to the situation? Examples might help – imagine a patient is in their own home and they have injured themselves but are declining hospital treatment: and let us further imagine that person has broken their finger whilst drunk – are we dragging them kicking and screaming to hospital if a paramedic declares them to lack capacity?
I hope you shouted, “No!” based on just those facts?! – without anything further, you’re going to let them sober up and when they wake up and realise their hand hurts and it’s partly pointing the wrong way, they can get treatment having recovered capacity. What’s going to happen if someone doesn’t get care for a broken finger? – there are some consequences and having suffered exactly this injury I can tell you it hurts more to have your finger reset hours after doing it than if it happens shortly after doing it, but there’s nothing especially long-term to worry about. You are almost-certainly not going to die from that! But now imagine the person is experiencing suicidal ideation and has consumed enough tablets to end their life – totally different isn’t it?! … apart from anything else, justifying the use of reasonable force becomes much easier because the stakes are much higher.
If coercive intervention leads to handcuffs and leg restraints with four police officers carrying someone bodily in to the back of an ambulance or police vehicle, they can justify that if that person would otherwise die but would struggle if they had broken their finger! – the MCA requires officers (in section 6) to take account of both the seriousness and likelihood of risks particular being realised. And this is the point where we need to know the case R (G) v Nottingham City Council (2008) – the NHS removed a baby from its mother on the say so of a social worker, without satisfying itself that it was acting lawfully. It was unable to avoid liability by arguing that they were merely following the instructions of the other professional and another organisation.
So where officers are engaging either in restraint or in urgent deprivations of liberty, they must be able to justify their actions unilaterally and I would suggest with reference to sections 6 and 4B of the Act. That means they must understand the other professional’s view on the consequences of inaction. If the paramedic cannot articulate a consequence that renders coercive intervention a reasonable and proportionate response to the management of the identified risks, the officer should question further or potentially decline to act. Unless you start hearing something about life-threatening or life-altering consequences, it’s reasonable to wonder whether your use of force would be lawful.
Don’t forget, if this situation was against the backdrop of responding to a mental health crisis in in someone’s home, the Mental Health Act provides the statutory framework for intervening and it involves services coming to the person, not the person being coerced to the services! I fully appreciate that many mental health crisis teams (where they still exist!) and AMHP services don’t like the implications of the 1959 Mental Health Act or necessarily agree with the judge in the Sessay ruling, but that never the less is the law as it stands in 2016 and both the police and ambulance services have every right to expect support for those situations that cannot otherwise be safely managed, in accordance with that ruling. I would respectfully submit that if a local authority is not going to ensure sufficient AMHPs to provide that range of services envisaged by law they should probably do the public a favour by saying so, in order that such matters can be discussed by the Government and / or Parliamentary authorities which decided in a review of the MHA in 2014 that such matters did not need legislative amendment.
Meanwhile, back in the world of Mental Capacity Act interaction between 999 services, police officers need to remember this legal lesson: a paramedic can provide you with the capacity assessment, YOU remain responsible for the legal use of force applied and therefore YOU must be satisfied that it is reasonable in the circumstances.
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