It is important we understand at the outset: this Mental Capacity Act stuff can cause nightmares for partnership working because of the number of myths which already exist and because the police and many parts of the NHS have had little or no training. I’m going to do a couple of posts on it – first explanatory and then later I’ll do a punchy ‘guidance’ post for police officers applying it.
Update (May 2012) >>> A simple, handy tool to approach decision making when thinking of the Mental Capacity Act is The CURE Test.
Some police forces appear to have latched on to the MCA in various circumstances, but in particular for its potential to help resolve mental health crisis situations in private premises. There has now been a significant stated case about the MCA – the ‘Sessey’ case – after the Metropolitan Police considered its application to attending private premises where someone was suffering from mental health problems. In circumstances where they did not or could not get an AMHP to attend and assess under the Mental Health Act, officers considered whether the MCA allowed to ‘remove’ someone to a place of safety, as if under s136 MHA, in order to be assessed for admission to hospital under the Mental Health Act.
It was agreed between the claimant and the Commissioner that there was no power to do this and the court ruled that detention in the place of safety pending assessment, had been unlawful.
Here’s my rule of thumb: if you can avoid taking decisions – including mental health care decisions – implied by the Mental Capacity Act because there is time to call an ambulance or other health or social care professionals, you should do so. Any intervention should be restricted to those circumstances where you absolutely must intervene in order to preserve life or prevent serious injury and this means having regard to s4B MCA – only where intervention is necessary to mitigate an immiment, life-threatening risk. Principally, decisions around capacity and healthcare should be taken by healthcare professionals – this sentence is not my view, it is a requirement of the Code of Practice to the MCA.
So how do you apply it?
- One should determine whether someone has capacity with reference to the test in s2 MCA – nobody is asking for scientific assessment, just a properly considered decision.
- Whether or not someone can take a decision for themselves is determined by the approach in s3 MCA.
- One may then undertake proportionate acts to safeguard someone’s best interests (understood by reading s4 MCA) , in accordance with principles explained in s1 MCA.
- Officers would then be protected from any legal liabilities ordinarily arising from that act, by virtue of s5 MCA, as long as they acted in good faith to do the right thing – the proper legal terminology is that you acted in the best interests of someone whom you reasonably believed lacked capacity.
- If doing the right thing involves the ‘restraint’ of a person, it must be done in accordance with s6 MCA.
- If one has assessed as per s4 MCA and acted in accordance with the principles of s1 MCA and acted within the spirit of s5 MCA, (then s6 MCA if restraint is required) it will provide a legal ‘defence’ to the action taken, as long as it was done in good faith.
- There is a good explanation of how to consider the principles which underpin the Act, within chapter 2 of the Code of Practice to the MCA.
1. The police are called to a private dwelling to a report of an out-of-hours GP with ambulance and family, attending to a man in his 80s who needs removing to A&E. The GP explains that the man is thought to have had mild dementia for some while although he normally lives on his own. The man is frail and confused because he has contracted a urinary tract infection which had affected his congitive functioning because it had become quite acute. He’d become extremely confused over the last three or four days and become unable to look after himself – not eating or drinking – and he has soiled much of his house because he has not been using the toilet. The GP explains that the infection has caught hold so severely that because of frailty, the man’s life is genuinely at risk if he is not taken to A&E shortly and treated with antibiotics. Between him, the paramedics and the man’s daughter and son-in-law, they’ve tried to get him to A&E, but he is refusing and they need help. The GP confirms that the man lacks the capacity to take this decision, because of the infection and his dementia.
2. You attend street to a report of a robbery where man has been badly beaten whilst on his way home from a night out. He appears intoxicated, but he has sustained head injuries in the beating and his wallet and phone have been taken. He is wandering in and out of the road when you arrive and all attempts to verbally manage him and encourage him to safety have failed. You use a low level of force to get him out of the road and the paramedics arrive. They express serious concern about the head injuries, because his face is already badly swollen and cut. You all attempt to get the man into the ambulance for removal to hospital, but he declines. Between you and the paramedics, it is suggested that his intoxication probably prevents him understanding the extent of his injuries and the potential consequences of them not being assessed and treated more or less immediately. They cannot rule out the possibility that the injuries sustained have been very serious indeed, potentially life altering and everyone is agreed that because of alcohol, disorientation and quite possibly shock and pain from the injuries themselves, he lacks capacity to decline treatment.
Not a substitute for the Mental Health Act
The ‘Sessey’ case showed that where police officers attend a private dwelling to a non-life threatening situation – or not immediately life-threatening – that they should not use the MCA because no power to remove someone to hospital exists. The court reminded us that the statutory response to mental ill health on private premises, is for Mental Health Act assessment to occur led by an AMHP. If the urgency of the assessment means that only one DR can be involved, they can use the emergency admission mechanism under s4 MHA. The case was unequivocal, that the MCA should not be used to subvert the need for this approach.
(Potentially, officers consider the MCA because of an inability to secure prompt attendance to mental health crisis situations by mental health professionals. The answer to this, is closer partnership working with crisis teams and agreed support between the agencies and senior officers should ensure that this achieved through robust, reviewed protocols.)