I recently delivered some training in Leicestershire which involved explaining the Mental Capacity Act 2005 to emergency services personnel. Quite unintendedly, I ended up explaining it in a way I previously hadn’t which struck me as a more helpful approach than my previous efforts! So, I thought I’d outline it here in case it helps others.
As quick reminder, the MCA allows others to take decisions about a person who is reasonably believed, on the balance of probabilities to lack capacity. A person lacks capacity about a specific issue if they have an impairment or disturbance of the mind or brain and cannot communicate, understand, retain or employ / evaluate information relevant to that decision. For those who like mnemonics, you may remember the “ID a CURE” approach –
- Impairment; or
- and cannot …
- Retain; or
- Employ / Evaluate
One from the top two and one from the bottom four and, on the balance of probabilities, you can declare a lack of capacity. But what does that allow or obliged you to then do? This is the new explanation I employed with 999 personnel they suggested sounded useful.
LEVELS OF INTERVENTION
My new contention is that there are now three levels of intervention that need to be considered: listed in the title of the post – restriction, restraint or removal. I also want to re-emphasise, that this is about 999 responding to situations that were often unpredictable and unknowable – this is not about slower-time interventions involving Best Interests Assessors and long-term decisions.
- Restriction – undertaking actions which may restrict a person’s rights and liberties, but only to a very small degree to mitigate a risk / threat;
- Restraint – actions which physically restrict someone quite briefly, proportionate to a greater level of risk.
- Removal – the process of taking someone against their will to another location for medical assessment / treatment, on the basis that the situation is especially serious.
Let me use one scenario which I can then add to, to escalate through the three types of intervention as a proportionate response to a vulnerable person who lacks capacity.
Imagine a 999 service is called to a private address in response to a mother (in her fifties) asking for help for her adult daughter (in her twenties) with serious mental health problems. Her daughter has become unwell over the last few days and they are awaiting a response from mental health services, but this evening, her daughter has been openly threatening to take her own life unless she is admitted to hospital is threatening to overdose on medication she has gathered. The exact nature of the medication is unknown and mum is able to outline she has previously been admitted to hospital after a serious overdose and she has previously self-harmed.
999 responders arrive at the address and can quickly agree, they think this young woman seems extremely unwell and may need urgent assessment under the Mental Health Act. Her mother has been told in the last hour that assessment cannot occur that evening and she should call 999 or take her daughter to A&E if there are problems. A non-descript bottle of what appears to be various tablets is on the coffee table along with a razor blade and mum is confident she hasn’t yet taken any of them. The young woman is declining all offers to going to A&E for assessment of her mental health, saying she just wants to be ‘sectioned’ and in terms of efforts to explain that A&E is the route to assessment and potential admission.
In efforts to offer a more urgent pathway to assessment and potential admission or care, it seems likely that the young woman lacks capacity to take decisions because her psychosis is affecting her ability to understand what the first-responders are offering. It is decided on this basis that they will have to do ‘the least restrictive thing in her best interests.’
So what does this actually mean?!
The main risk at this stage, is that whilst the 999 crew is attempting to identify a route through, that the young woman will pick up the tablets or razor blade and use them to harm herself. Can you justify interfering with her property (the tablets and blade) bearing in mind that no-one has a legal right to walk in to someone else’s house and interfere with their possessions? Yes – those items are potentially very linked to the situation being managed; she’s threatened to use at least one of them in connection with the frustrations around accessing unscheduled care / assessment; and it is reasonably believed that she lacks capacity to take the decision about the solution being offered to travel to an ED for urgent assessment by psychiatric liaison services.
Could the 999 crews remove her to the ED against her will? Probably not yet – the Sessay case outlines the reasons why. The judge ruled that in such circumstances that an urgent MHA should be attempted so contact should be made with an AMHP who should be told of the mother’s belief that she needs urgent assessment is supported by those attending and that in the circumstances there is no legal mechanism available to remove the patient from the address. Unless the situation changes, the MCA would probably afford a defence to the professionals under s5 MCA, for interfering with the patient’s property to keep her safe, but it wouldn’t go beyond that.
Imagine that scenario with one difference: upon arrival, the young woman is holding the medication and threatening to take it consume it unless the 999 crew takes her to a mental health unit. Bearing in mind all the other circumstances and a belief that she lacks capacity, would the crew be justified in removing the medication from her possession, by restraining her in order to do so? Probably – assuming that there was a reasonable belief by the professionals that this action was a proportionate response to the seriousness of the harm the person would suffer and proportionate to the likelihood of that harm, the MCA would provide a defence under sections 5 and 6 for taking steps to protect her from the potential that she will consume the medication and cause herself irreversible harm.
Another example might include: the RTC victim who was struck by a vehicle whilst crossing the road who now has a head-injury, is intoxicated and who is hoping to leave the scene of the collision without assessment by paramedics. Whilst being unsteady on their feet and somewhat confused, it is reasonable believed that the head injury could be significant and that they lack the capacity to take the decision to decline treatment. In the first instance, they could potentially be restrained by police officers to prevent them leaving until paramedics can advise on whether there are grounds for removal to hospital without consent.
Imagine another difference: upon arrival, the bottle of tablets is about 1/4 full and her mother informs you that she believes her daughter has consumed 3/4 of the bottle which was full only an hour beforehand. Although it can’t yet be known what precisely is in the bottle, it seems probable that such quantities of certain things could prove life altering or life threatening. It seems necessary to ensure the young woman does not ingest any more of the tablets and that she will need assessment and treatment in A&E to mitigate the effects of the overdose. The MCA does make clear, in s4A of the Act, that no-one can be deprived of their liberty under the MCA unless the criteria in s4B are satisfied – these state that someone who lacks capacity may be subject to an urgent deprivation of liberty where this is necessary to provide a life-sustaining intervention or do a vital act to prevent a serious deterioration in someone’s condition.
Our RTC victim, above, might be removed to hospital if paramedics were saying that the head-injury appeared so serious that without urgent hospital treatment, the person might – on the balance of probabilities – deteriorate and suffer a life-altering or life-threatening consequence.
EXTENDING THE MODEL
So! – we can extend the model to explain the MCA. First of all, established whether you can “ID a CURE” and where you can, you have three options and must undertake the least restrictive of them, depending upon the level of risk to the individual. If you can mitigate the risk by restriction, you will be unable to justify restraint or removal. If restriction is not possible or not appropriate, you should consider restraint first and only start to consider but not removal unless restraint is insufficient to ensure that person’s best interests and keep them safe.
Happy to take feedback on this – please leave a comment below. It ended up being an improvised explanation to a group of 999 professionals in a particular context, so keen to know whether it helps simplify what can be a complex area of law.
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