Mark and the Mental Capacity Act

I didn’t watch the second episode of #Ambulance last night – I won’t bore you with the reasons why, but my iPad was flashing at me towards the end with people tagging me in conversations they were tweeting as they went – all questions about the story of “Mark and the Mental Capacity Act”. So I got it up on iPlayer and watched the final 15 minutes to see what the chat was all about, not least because the tweet I saw first read, “Watching #Ambulance on BBC1 and witness West Midlands Police refuse to attend to assist with Capacity Act … awful.” – and we’re back to the police again! But first things first: I’ve worked alongside West Midlands Ambulance Service for my whole career and I give freely of my own time to help train student paramedics at several universities – my respect for them is limitless. I thought this crew came across really well and it’s obvious that Maya in particular was trying to go the extra mile for this guy. Nothing that follows detracts from my respect for their humanity: it’s just me on my hobby-horse about how blue and green need to work together when legal issues arise about mental capacity in operational situations.

Give the programme a go for yourself, but if you want to focus on what I’m covering here: the story of Mark doesn’t begin until 35 minutes in to the programme, so don’t just watch the last 15 minutes as I did last night! … fortunately for me, the first part of Mark’s story that I missed before tweeting about it, only adds to the points I want to make:

Essentially, two paramedics are called to my old patch in south Birmingham where a forty-year old man has fallen in his house and hurt his back and shoulder. It becomes clear quite quickly that Mark is an alcoholic and he has already consumed six cans of cider before the crew arrives. After a few minutes summarising a 30 minute interaction, Mark refuses to attend hospital and the programme cuts to another story.  At 45 minutes in to the episode, we’re back with Mark and the ambulance service are asking for the police.  “Can we have police rolling on this one, man lacks capacity and is refusing to be conveyed to hospital.” This is where it gets interesting for me because there is nothing like enough information in that request on which to make a good decision about coercing someone to hospital.

I’d encourage everyone in blue / green to read sections 1-6 of the Mental Capacity Act 2005 – at least twice!

So, using the ID a CURE mnemonic, let’s go through the legalities of all this —

DIAGNOSTIC & FUNCTIONAL TESTS

ID – has the patient got an impairment of disturbance of the mind or brain?  << This is the diagnostic test.

  • Unless someone does suffer an impairment or disturbance of the mind or brain, an intervention under the MCA doesn’t get off the ground.
  • Well, the ambulance service were first called by Mark’s partner for physical injuries connected to a fall.
  • When they are exploring the matter of alcohol consumption, it’s made known he has consumed six cans of cider and that ‘normal’ for him is as much as twenty.  His speech seems slurred and there is mention of him having four seizures a day, albeit there is no seizure during the part of the film we see.  The narrative from paramedic Maya focusses on Mark’s addiction and her concern for him is predicated upon that, rather than on physical injuries.
  • So what is the impairment of disturbance that is vital to there being an ability to get the MCA intervention off the ground? – it’s not clear, but seems loosely based on alcohol and addiction.
  • Obviously, we weren’t there and the programme was edited so it maybe something off camera happened that was relevant or which wasn’t broadcast for confidentiality reasons. So let’s run with the crews assessment for now, albeit social media shows I’m not the only one questioning whether he had an impairment or disturbance of the mind.

AND! –

CURE – is the patient unable to communicate his decision; or to understand, retain or evaluate information, relevant to his decision? << This is the functional test.

  • Mark was communicating clearly throughout this clip, albeit with slightly slurred speech. He was absolutely crystal clear in his refusal to attend hospital, making this clear several times.
  • What was it that he failed to understand? Paramedics made it clear that they wanted to let the hospital give him “a full MOT” and that they wanted to get him help with his addiction.  “They can only beat it when they’re ready” which raises an interesting question about forcing him to hospital in connection with his drinking issues if he’s not ready, as was obviously the case.
  • I didn’t hear anything being said to Mark about the risks of not attending, beyond the potential that a seizure could be very problematic if it went on too long. It wasn’t explained to him (unless off camera) how likely this seemed to be. So there was no evidence he failed to understand anything relevant to his decision.
  • Paramedics were on scene for over three hours: no doubt, having been in situations like that, they tried way more than once to explain, persuade, etc..  Was there any evidence in that time that Mark failed to understand anything or that was unable to evaluate any information he was given? Even when the paramedics outlined the risk of a long seizure preventing him breathing, it’s not at all obvious that he failed to use that information in his continued decision to stay where he was.

Everyone over the age of 16 is presumed by law to have the capacity to take their own decisions about issues like medical care, alcohol consumption and so on. The law makes it absolutely clear that no-one can be deemed to lack capacity simply by virtue of having made an unwise decision. So to be confident that we should be ringing the police in the first place, we have to be confident, on the balance of probabilities, that Mark has an impairment OR disturbance of the mind or brain and that as a result of that, in respect of a specific decision, he cannot communicate his decision or that he fails to understand, retain or evaluate information relative to making it.  This programme caused a lot of social medica debate: suffice to summarise, there were a number of paramedics questioning the decision to declare a lack of capacity and amongst the AMHP community of their Facebook group, there was a thread running within the duration of the programme and not one of them was arguing for an MCA intervention.

INVOLVING THE POLICE

But again for the record: we weren’t there, so let’s run with the judgement made. How awful was it that West Midlands Police refused to attend? Well, based on the information given by the ambulance service controller who first rang through, not that appalling at all – nothing like enough information was supplied to enable West Midlands Police to form a proper view and my own opinion was, having two controllers discussing the finer points of the MCA when it seemed likely neither of them was massively familiar with it was probably not the best way to proceed.  Might have been better for someone at the job to discuss the matter with a control room supervisor.

What is clear is that both controllers were wrong about the law, based on things they said.  It is simply not true that paramedics or ambulance service crews more generally have “no powers under the Capacity Act”. The Mental Capacity Act 2005 doesn’t have ‘powers’ – it provides a framework for acting in someone’s best interests after an assessment that they lack capacity and provides that people will be protected from legal liabilities for what they have done, as long as they’ve acted in accordance with the act. To put it bluntly: if you kidnap someone to hospital, you can’t be prosecuted or sued for that, if you’ve done it because they’ve just had a heart attack and can’t make decisions for themselves, etc..

Legally speaking, paramedics have exactly similar scope to act under the MCA as a police officer – they are no more empowered or restricted and before any paramedics say “It’s not our job to coerce people”, it absolutely is. I lecture on this very topic on paramedic training across the West Midlands (ironically enough!) and every session I ask the students, many of whose are experienced technicians making the step up to paramedic whether they see it as their role to coerce people – most of them shake their heads. I then ask whether they’ve ever thrown a blanket around a confused elderly person who is frightened and given them a ‘tactical cuddle’ or engaged in some ‘therapeutic blanketing’ to restrict their arm movements, whilst strapping them in to a chair? Just one example of low-level coercion: but coercion nonetheless and often done because patients lack capacity and the paramedics are doing a sterling job acting in people’s best interests.

PROPORTIONALITY

Of course, Mark was an adult man and it may well have been thought beyond the ability of our heroes in green, which is fair enough – because nothing I’m arguing here suggests paramedics should be rolling around the floor trying to restrain people (albeit a paramedic and I did exactly that in the early hours of Christmas Day 2012, trying to stop some bloke bleeding to death). Once you’ve done the diagnostic and functional tests, you can declare someone to lack capacity: but this doesn’t then tell you anything about what you can do next. It certainly doesn’t mean that anyone can just take them to hospital when they don’t want to go. We need to consider more things first.

  • Will waiting change the situation – perhaps capacity might return, for example because alcohol wears off? Seems unlikely in Mark’s case, given his alcoholism, but it needs to be considered when weighing up how to proceed.
  • Is removal to hospital to only way to meet his needs? – the journey to hospital seemed predicated on a precautionary “full MOT” and the need to get help for alcohol dependency. Forced removal to A&E wouldn’t be justified for a precautionary medical and alcohol services can be access in a number of less restrictive way,s through someone’s GP, for example.
  • What is the consequence to Mark of not acting – it’s fair enough to say he lacks capacity but so what?  “So what” isn’t a flippant phrase: it’s about assessing the proportionality of forced intervention. If a patient is likely to die without acting now, then crack on officer – you can use most of the tools in your legal kitbag from manual handling, to handcuffs or leg restraints. There have even been incidents where Taser has been used to stop people who lack capacity from killing themselves.

The law on this stuff is sections 5 and 6 of the Mental Capacity Act 2005 – section 5 provides that there is general defence to anything done under the Act as long as it is consistent with the principles of the Act: that everyone is assumed to have capacity unless assessed otherwise, that an unwise decision doesn’t amount to a lack of capacity, etc., etc..  But where coercion comes in, we also need to consider section 6.  This states that any restraint must be proportionate to likelihood and seriousness of the harm that would otherwise be suffered – this section specifically makes it clear that restraint is the “actual or threatened use of force”, so when the West Midlands Police officers turn up and tell Mark that staying at home is ‘not an option’ and start taking his cider off him, we’re straight in to s6 territory, (which means we must also be satisfied of section 5). West Midlands Ambulance Service tweeted during the show that ‘after some convincing’, Mark finally agreed to go to hospital. If he agreed to go, why did he need a police escort all the way there?!

In reality, Mark was forced to go, because his choice was ‘agree or be taken’ – that’s not really a free choice, is it?! I’ll end with this observation: when asked by anyone else to act coercively in respect of someone who lacks capacity, I tend to want answers to the following questions –

  • What is the impairment or disturbance here?
  • What is the decision you say they can’t make?
  • Why do they lack capacity?
  • What happens if to this person is we don’t act now?

And using that information, I have to be satisfied that my restraint of another human being represents a proportionate response to the risks and threats outlined: the police are NOT there just to do as they’re told and they are not just entitled, they are obliged by law to satisfy themselves that the action they are taking seems legally justified and is the ‘least restrictive thing’ in that person’s best interests.  I repeat these points: the paramedics were obviously diligent, caring professionals and my admiration for West Midlands Ambulance Service is limitless – but the blue/green interface of the Mental Capacity Act needs more work, in my opinion. From what was broadcast, everyone in the handling of that job, from the paramedics to the controllers to the cops who turned up, needed to be much more in to the detail of things and communicating much more.

Update – following publication of this post, Maya has undertaken further work on social media pointing out there was more to this job than was made clear in the programme. She wasn’t willing to outline what that was, so it could well have been confidential things, unable to be broadcast. This adds weight to the point already made – we only have a part of the picture, here. That said, I admit to thinking it would have been advisable to make that known in the programme itself rather than aftewards because we now  have police and paramedics guessing without relevant facts as to whether this murky area of law was correctly applied or not.


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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22 thoughts on “Mark and the Mental Capacity Act

  1. Excellent article outlining concerns I know I had over the management of the scenario. As you said it’s hard as we weren’t there and editing shows an entirely different picture but the bigger picture is that there are many in green and blue that DO NOT understand the MCA.

    Thanks for the blog. Great as ever.
    Have shared with colleagues 😉

  2. What an excellent piece of writing! It is so important that we get MC right, you should definitely come and talk to the people working with adults in the bedfordshire area. The police, support worker and other professionals who support people all need to know their boundaries and how to best asses the capacity of someone whilst maintaining their dignity, individuality and respect.

  3. Michael

    I have just started my student paramedic pathway with WMAS and that explained the legal issues MC in such simple terms thank you. As for the show as you rightly mentioned it’s edited .

  4. Whether a person has capacity was ruled on in a test case involving a schizophrenic who refused a life-saving amputation. It was decided he was entitled to refuse the treatment even though he had a mental health illness. This Radio 4 piece on it should be mandatory listening for those who need to understand whether a person has capacity or not. http://www.bbc.co.uk/programmes/b03sbmyn

  5. I was watching that from a slightly different perspective. I don’t have the technical, personal or legal knowledge and experience that you have, but I’ve been caught out before in arguing the point about what TV programmes have shown, without knowing all the facts or the real people behind them. As you say, even I, as someone who knows nothing about the Mental Capacity Act was questioning whether it would apply in that situation, but the critical point is >based on what we were shown<.

    Mark's case had about 15 minutes (I'm estimating, I haven't been back to time it) of time during the episode. We were told that there were numerous calls to the Police from various people involved at various levels and that the crew were there for over four hours. Therefore we saw less than 1/16th of the things that happened during the call (none of the aftermath) and we also heard less than 1/16th of the conversation about it. What did we not see or hear? I doubt, given the lack of resources that the Police have, that it was simply a call from a more senior officer at WMAS that got the Police to attend. We're missing information and, for whatever reason, the producers of the programme decided to make WMP the villains of the piece. But while this is probably unfair, albeit a common situation with edited programming, it has started the discussion, which in itself has to be a good thing, I'd think?

  6. Interesting article. I am a paramedic in Yorkshire and face similar issues all the time. I did watch the episode and thought from a fairly early point that’s it you can go he’s refused to travel. I would guess you could suggest they had a duty of care because his partner was saying you can’t stay here so maybe that would be the potential what are the risks you talk about. However I would certainly say A and E is very unlikely to be the right solution. You suggested the police gave the same powers as us. As I understand it they can section someone under a136 (in a public place?) which we can’t. Is that not the case? In this case it would of course be neither relevant or beneficial.

    1. Correct the police can use section 136 but of the mental health act. The crew here were attempting to “use ” the mental capacity act, two completely different bits of legislation.

      1. The Section would have been a 135 not a 136. A Section 136 is from a public place to a place of safety, a Section 135 allows a person to be taken from a private dwelling. However, it wasn’t utilised in this instance.

      2. Doesn’t seem likely that it could have been, on the facts broadcast as I don’t recall anyone raising concerns about Mark’s mental health other than connected to his addiction to alcohol – dependency on substances is specifically excluded from the MHA as the basis for detention in hospital.

  7. I also find, from reading your article having not yet seen the show. That there was no recognition of Marks right to “act in an unwise manner”
    I am an IMCAand not a paramedic but from what I have read in your article, had I been present I would have been advocating this.

  8. Something I feel is relevant is the role of the ‘decision-maker’.

    The MCA code of practice is clear the decision maker would be the person best placed to understand the factors involved in the decision, not least so they are able to explain and answer questions for the person whose capacity is. Ring assessed.

    In the case in the programme the paramedic(s) become the decision makers because their professional judgement of the risks and consequences of going or not going to hospital will determine what outcomeis in someone’s best interest and the proportionate level of force which might be acceptable.

    So if paramedics tell police officers someone needs to be in hospital pronto or there’s a risk they’ll die it’s a reasonable position to act accordingly on that decision and for that reason when the officers arrive their actions seem entirely justified.

  9. Thank you for a well-written, balanced, respectful and accurate article, Michael. I had the pleasure of you turning up to a ‘lacks capacity’ incident I was at a few years ago and the support you gave for us lot on the thin green line was fantastic, and worked in the patient’s best interests.

    I absolutely agree all parties should be provided with the knowledge about the MCA they require to do what is a very common part of their respective jobs in an effective manner. In my opinion, I only received adequate training when I changed jobs, at which point I could see some of the MCA-related decisions I had made in the past were at best questionable and at worst illegal.

    The MCA is there to protect vulnerable people who, for whatever reason, are unable to make appropriate decisions about their own care and treatment. Those in the front line, and in the operational rear echelons, of healthcare and policing should be in receipt of the highest quality training to allow them to do their jobs effectively, for the benefit of their patients. Unfortunately I don’t think this is always the case. I hope, given your input on student paramedic education, it is better now than it was.

    As you say, the actions of this crew were done with the very best intentions, and from official comments I have seen elsewhere on social media the editing of the programme didn’t give us the whole story. That said, four hours of trying to persuade one patient to go to hospital does not an engaging reality TV show make, so I understand the BBC’s reasons for cutting it down!

    Apologies for any missed typos – blame my smartphone.

  10. Having referred to your blog numerous times and shared it with my students and colleagues, i did have some concerns about the job in question-despite the obvious editing. For me, there wasn’t any doubt to Marks capacity based on what was shown. He understood, retained and comminunicated and i don’t think he fell into the life threatening injury/illness category. I don’t feel it was appropriate for WMP to be portrayed as refusing to come out as that doesn’t help anyone. We work together, have each other’s backs whenever needed and feel this is the few only area that we don’t always work that well together. Training together and sharing examples between trusts and forces (Like WMP and WMAS/EMAS do in university ) would go some way to improving this-despite training challenges and finding the time to do this.

    In our patch, i have had conversations with duty Sergeants whereby we have weighed up proportionality and come up with safe plans for patients to be reassessed in their own homes, with GP OOH and duty Social workers involved. These jobs take a while, but with experience early identification of what is likely to happen can ensure safe plans are made.

  11. Nicely said. Clear article. I thought the same thing, got into a big debate with my partner who works in MH and interestingly we differed a lot. It’s understandable to get such a variety of views over such a grey area but is clearly something you feel passionately about and I agree with what you have said, it seems to me you have a great understand of the MCA, thank you for sharing this. I kept saying to my partner “What’s the bigger picture here? What’s the long term goal for this guy? What does he want? What is a and E going to solve?”. That said I think the paramedic on scene was trying to act in his best interests within an issue that is obviously sensitive. I wonder whether had the crew left the patient at home, would there be a social media storm about that too? It’s a very difficult decision.

  12. Thank you so much for sharing this article. So well written and clear. This episode sparked a big debate at home between myself (a paramedic) and my partner (a MH worker). I agree with much of what is written in your article, actually all of it. It’s obviously an area you are incredibly knowledgeable about. I think actually what the paramedics needed wasn’t just ‘police’ on this job, they needed someone who really understood the MCA and could help them use it appropriately. This is an area that often gets treated as subjective and grey and riddled with tricky decisions. I wonder whether had the crew left “Mark” at home with capacity, would there be such a social media storm? I ask this because my partner is very new in the job and has a very basic understanding of capacity and felt that forceable taking the patient to a+e was the best thing to do. Is this an opinion that would be shared by lay-people? It is complicated. I kept thinking “whats the bigger picture here? Whats the long term goal for Mark? What does he want? What really is best for him?” Tricky. Interesting debate points.

  13. Great article Michael- but a question that I still have as a recently qualified paramedic is what constitutes an impairment or disturbance? and how can ambulance staff who may have only just met the patient assess that they have an impairment or disturbance? In Mark’s case (I haven’t seen the program) does he pass the ID a CURE test because although his alcohol could potentially impair his judgement he IS able to communicate his decision, understand the information given etc etc? What about in cases of a ?deterioration of an ongoing mental illness- is this always an impairment or disturbance?

  14. I think part of the “bigger picture” was that Mark hadn’t eaten for several days – that was said near the start of the piece, I think in the initial call, and that his partner wanted him out of the house

    1. That may well be the case – the blog alludes more than once to the obvious point that stuff may well have happened off camera that we don’t know about. That’s usually the case with edited TV. My point here, given the legal difficulties that police officers have got themselves into and often put themselves too close to, is that what we saw on the TV last Thursday is almost certainly not sufficient to justify removing someone against their will from a house. Almost everyone I’ve discussed this with who knows anything about the MCA says so. So whilst making all possible allowances, it may well have been correct, legal and proportionate – I’m not saying otherwise and never have. But I need police officers to know they need more detail than this in the real world, to avoid allegations being made against them that they find they can’t defend. The intrusion of the state in to people’s private lives and their rights to make decisions are very serious matters, worthy of the fullest consideration, in my view.

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