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.
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.
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.
Winner of the President’s Medal, the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions expressed are my own – they do not represent the views of any organisation. (c) Michael Brown, 2019
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – http://www.legislation.gov.uk