The Mental Capacity Act continues to consume a number of the queries I receive. The point of this post is not to repeat the content of those I’ve already written, but to highlight the main problems which end up my focus as the questions keep coming. You can read previous posts I’ve written in the paramedic series of blogs (which, of itself, tells you that many of these situations involve the police’s interface with the ambulance service) and of course, the (recently revised) Quick Guide on the MCA. It’s also worth bearing in mind, the Mental Capacity (Amendment) Act 2019 which will take effect at some point in the future. This will add a number of words to section 4B of the Act, which you’ll see shortly, is key to many of the problems we continue to see.
I want to emphasise three things here –
- The balance of probabilities
- The least restrictive principle
- ‘Restraint’ versus a ‘deprivation of liberty’.
THE BALANCE OF PROBABILITIES
I may, later today, suffer a life-ending accident, not least because I plan to ride a bike home from work in the dark, late at night. I will manage speeds of 30mph at some stage and I do tend to find some drivers are very casual about my safety. Risk accepted, I will be sure to go as carefully and defensively as I can, not least because my 15yr old son needs taking to school tomorrow with all his kit for a school adventure and I have no desire to risk my own injury (or worse) or to let him down. There is a distinction to be had here about whether an accident or a serious accident (two different things!) is possible or probable. I’ve cycled this route regularly in horrendous weather and have (touch wood) never had any kind of accident and I will be making sure I do this as safely as I can. It’s not PROBABLE that I will have a cycling accident – it is merely possible and I will update you later from my hospital bed if it turns out I’ve just badly tempted fate.
This kind of distinction matters in the world of mental capacity law – because it’s partly about making black and white decisions amidst infinite shades of grey. It’s not always easy to determine definitively whether someone has capacity or what risks they face without support and consideration of these issues can often be required in time-limited or information-restricted circumstances for 999 crews. You may not even know the name of the person you’re required to support or assess, never mind what their medical and other background is. The MCA requires issues be determined on the balance of probabilities: essentially, this means “what do we reasonably think is more likely than not?”
Some speculation about hypothetical or unlikely events may be part of clinical considerations, but it can’t necessarily form the basis of legal decisions. “He may choke on his own vomit if we don’t act”. Great, but is that likely to happen or is it a very unlikely speculation? Any number of things may happen, but whether they seem more likely than not is what matters. Worth asking what we think might happen if, hypothetically, we did nothing? For cops reading this, it’s a little bit like the difference between ‘reasonable grounds to suspect’ or ‘reasonable grounds to believe’: a legal belief is about something that it is probable – suspicion is lower threshold about what’s possible.
MCA decisions lean more towards belief, than mere suspicion.
The last point then links to the next: even if someone does lacks capacity and even if it is likely they will choke on their own vomit, what action is the least restrictive way of acting in their best interests? Coercive removal to hospital by the police, involving the bodily carrying of a resistant patient in restraint from their own home is about as restrictive as it gets. If we’re reaching for this option, are we absolutely satisfied there is (almost literally) no other way of mitigating that risk to the person? If we’re not happy this is the case, then we’re probably not acting in the least restrictive way – this is a legal requirement, in the Act of Parliament itself.
For example, the MCA requires consideration of whether a little time would allow the return of capacity? – if a person lacks capacity now because they are intoxicated, perhaps we wait a few hours until they’re not intoxicated? It’s not always convenient to do this, I accept. The person may wish to continue drinking and there may be no-one obvious from friends or family who could keep an eye on the person for those hours and perhaps ‘help’ them to sober up. But the difficulty in ensuring adherence with the Act is not, of itself, justification for breaching it. You’d only consider waiting in less serious cases than do not require urgent action.
In keeping with all other laws (including the Mental Health Act or a police use of force), the interference of the state with someone’s liberty and autonomy should be minimised and proportionate to the risk being managed. This is expressly restated in the MCA where s6 MCA requires that any ‘restraint’ should be proportionate to the likelihood and seriousness of harm. Likelihood … and seriousness: assessment of probability and impact is required, where restraint is concerned. And remember, for the MCA’s purpose, restraint is not just the actual use of force, but the implied or threatened use of force – s6(4) states “For the purposes of this section D restrains P if he – (a) uses, or threatens to use, force to secure the doing of an act which P resists” [my emphasis].
If you say, “You have to go to hospital or the police will be called to remove you there” then you’ve just engaged in restraint through a threatened use of force.
DEPRIVATION OF LIBERTY
And finally, something absent most of the discussion and (in my experience) actively dodged by many, is the issue of where actions are depriving someone of their liberty, as opposed to simply restraining them. Deprivation of liberty involves more than mere restraint and some examples are easy: if a person who lacks capacity is still at their home and attempting to ingest tablets in an attempt to overdose, physically controlling them and / or the medication is restraint. It wouldn’t, for example, amount to a deprivation of liberty to physically control that person using a proportionate level of force until control is achieved over the means by which they are attempting to OD as long as the restraint ends as soon as that is achieved and you’re now deciding what to do next.
But if we’ve determined – on the balance of probabilities! – the person has already ingested a potentially life-altering or life-threatening dose of the medication, removal to hospital to for urgent treatment and keeping them there until the ED have assessed matters and decided how to proceed, may well amount to a deprivation of liberty. Very necessary to saving their life, no doubt and almost certainly legal. But this is the rarely-mentioned section 4B in action. That provision states, essentially, that someone may only be urgently deprived of their liberty where that is necessary “to provide life-sustaining treatment” or “to do a vital act to prevent a serious deterioration” in their condition. I’ve find this quite wordy and have often paraphrased it to something that is ‘life-altering or life-threatening’.
But if you feel it’s wordy now, wait until the Mental Capacity (Amendment) Act 2019 comes in to effect (on a date yet to be determined). Section 4B will be significantly expanded in it’s wording and I’ve written a separate post about this, if you want the detail. In essence, my initial reading is that the even-more-wordy version of s4B will just reinforce the summary interpretation I’ve given. I’m not sure if the expanded word count will help on the ground and I submit it amounts to more-or-less the same thing as I’ve summarised here or in the other posts I’ve written:
You have deprived someone of their liberty, according to the Supreme Court, if they are forced in to a situation where they are “under constant supervision, control and unable to leave.“
For removal to hospital against the express will of a patient, it has to be a (more-or-less) life-threatening or life-altering situation, in respect of someone over 16 who lacks capacity on the balance of probability and where the action is also the least restrictive way to act in that person’s best interests. << These are all words and phrases from the Act itself. There is a (revised) Quick Guide on the Mental Capacity Act available to guide practitioners through this, if that helps in situations.
Nothing in this post or my others should be interpreted as any attempt to insist this is easy: it’s not. 999 deliberations over the MCA require frontline practitioners at junior levels, to wrestle with matters that Governments, Supreme Courts and eminent lawyers struggle with, so don’t beat yourself up that this is way-beyond-hard. I submit, however, that whilst the learned get on with their introspections about how this stuff should be framed in law and how those laws should be interpreted in practice, we have no choice but to get on with it and make black and white decisions from endless shades of grey.
All you can do is look at the words in the Act, many of which are mentioned above or within the links, and then think about how this applies to your situation. There is no getting away from the fact: you need to know the law, which probably means you should read it and think about it, rather than listen to what other people say.
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 OBE, 2020
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