Earlier this month, Royal Assent was given to the Mental Capacity (Amendment) Act 2019. This is a very short piece of legislation and it is, as the name suggests, merely amending legislation for the Mental Capacity Act 2005. This post is a taster of what it means for police officers and paramedics in particular, especially in light of previous posts I’ve done which attempt to clarify terms like ‘deprivation of liberty’ and to explain the current section 4B of the MCA. This is the thing which talks about not depriving someone of the liberty where they lack capacity, except to provide a ‘life-sustaining treatment’ or do a ‘vital act’ which prevents ‘a serious deterioration in someone’s condition’.
This amendment stuff is not yet law – we don’t yet know the commencement date and this post is just an early heads up of what’s coming towards us!
I’m hearing estimates it may be late 2020 before this stuff takes effect and if history repeats itself, there will be little explanation about what any of this means for the emergency services. Focus within this legislation is mainly on the replacement of ‘Deprivation of Liberty Safeguards’ with a new thing called ‘Liberty Protection Orders’. But there are some other amendments, specifically to s4B MCA and this can and will affect #Team999. We can remember how well it all went for us on the frontline after commencement of the 2005 Act, can’t we? – forces putting out policy which pushed the MCA as a solution to all manner of things it was never designed to do, which then failed to survive contact with the courts, when tested.
So first things first: and it’s just my own opinion, aimed at attempting to reassure emergency services personnel of how big a change this is – I think the amendments to s4B just fully outline and formalise the interpretation of the MCA that some of us have pushed for a number of years. There has been fairly constant debate about whether officers or paramedics can remove someone to hospital ‘under the MCA’ and if so, in what precise circumstances. Such debates continue to this day, based on incidents logs I read and legally speaking, it all circles around what a ‘urgent deprivation of liberty’ is. This debate has been aired in Coroner’s courts more than once where police and ambulance service actions have been placed under significant scrutiny and the juries had to untangle what scope the MCA offered, if any, for action to safeguard someone thought to be at risk.
Some quick highlights of stuff which may be of interest to, but less direct relevance to emergency services –
The aspect which will be of most relevance to the police and ambulance services when it al kicks in, is the expanded wording of s4B MCA – this is the section which deals with the circumstances in which an urgent deprivation of liberty may be inflicted upon someone because of serious circumstances. Those of you who have followed this legislation since 2005 will know it hasn’t been without its difficulties and prime amongst them was the problem that the whole MCA touches upon situations where someone is deprived of their liberty. Indeed, the MCA came about, at least in part, because of a human rights challenge (HL v UK, 2004 – known as the Bournwood case) in which someone challenged being deprived of their liberty under common law.
The problem since the original MCA and which will remain after this amendment is that ‘deprivation of liberty’ was not, and still is not, defined in the Act … at all. And so people have argued over it – A LOT!
In 2014, the Supreme Court ruled in the so-called Cheshire West case and Baroness Hale, now President of the Court, ruled that a deprivation of liberty occurred whenever someone is placed under ‘constant supervision, control and is unable to leave’. This became known as the acid test and as the 2019 amendment Act was travelling through parliament, there was an attempt to put this Supreme Court definition in to statute. In the end, this hasn’t happened and rumour is it will be used in the new MCA Code of Practice, once it’s revised ahead of commencement. So given that a Code of Practice is important guidance, but guidance nonetheless, it’s possible we’ll still be working to the Supreme Court’s definition.
So s4B is going to be expanded and the precise wording is now available to see. The current law states that nothing done under the MCA to safeguard someone at risk may amount to a ‘deprivation of liberty’ unless it is necessary to provide a life-sustaining intervention or to do a vital act to prevent a serious deterioration in someone’s condition.
The ID a CURE test stuff for assessing capacity is all unaffected by this legal amendment. ID a CURE was a way of summarising the requirements for the assessment of capacity and that can continue to function as a handy short-hand for #Team999 professionals. These legal amendments are not about changes to the assessment of capacity, but to the clarity of the criteria to be satisfied for doing things for people once you have assessed them to lack capacity. It is all about what you have to determine if you are going to be removing people to hospital against their will, in particular.
What also remains unchanged is all the stuff in s6 MCA which relates to the use of restraint in respect of someone who lacks capacity: if you have assessed someone and must now take the least restrictive action in their best interests, that may involve restraint if its use is proportionate to the likelihood and seriousness of harm. It’s always been tricky to work out where the line was between action amounting to restraint and action amounting to a deprivation of liberty. I’m guessing the legislators hope to improve that clarity and at the risk of pedantic repetition: nothing in these amendments changes anything about a restrictive intervention involving restraint where that does not amount to a deprivation of liberty.
The difficult bit has always been, “when can I remove someone to hospital under the MCA” because this will often involve depriving someone of their liberty? Remember: someone is deprived of their liberty if they are placed “under constant supervision, control and unable to leave”. The law is silent on how long someone must be in such a condition for it to amount to a deprivation and one could imagine that 999 crews turning up at a job who inflict such a level of control on someone only very briefly for the purposes of them making urgent decisions during emergencies about what might need to happen next, would not be troubled by the legislation as it stands or as it will be. But where you remove someone from a scene to an Emergency Department with the proposal to hold them there for an indeterminate period or until more is known about their status or condition … that’s where the ‘deprivation of liberty’ question kicks in.
If you are contemplating a situation where you place someone aged at least 16yrs under “constant supervision, control and unable to leave”, you need to ensure A) they lack capacity in respect of a specific decision; B) that what you are doing is the least restrictive thing (see below); but C) that you can satisfy condition 1 OR 2, but also 3 AND 4.
1, 3 and 4 … or 2, 3 and 4.
Section 4B MCA (summary of the essentials)
You can deprive a person of their liberty if –
Condition 1 – your action is wholly or partly for the purpose of giving P life-sustaining treatment or doing any vital act, OR it consists wholly or partly of giving P life-sustaining treatment or doing any vital act
• a vital act is any act you reasonably believe to be necessary to prevent a serious deterioration in someone’s condition.
Condition 2 – the steps are necessary in order to give the life-sustaining treatment or do the vital act: AND
Condition 3 – it is reasonably believed the person lacks capacity to consent.Condition 4 – that subsection (7) applies, OR there is an emergency.
Subsection (7) applies if –
A decision to deprive the person of liberty is being sought from the court of Protection), ORA responsible body is carrying out functions under Schedule AA1 with a view to determining whether to authorise arrangements that give rise to a deprivation of P’s liberty.
There is an ‘emergency’ if –
(a) there is an urgent need to take the steps mentioned in subsection (1) in order to give the life-sustaining treatment or do the vital act, and
(b) it is not reasonably practicable before taking those steps—
(i)to make an application for P to be detained under Part 2 of the Mental Health Act, (ii)to make an application within subsection (7)(a), OR (iii)to secure that action within subsection (7)(b) is taken.
This last thing I want to add is something that is nothing other than my opinion, having tried to get my head around this stuff, having had a to give opinion for and evidence in the Coroner’s court about this precise point. I understand that some can disagree with me about this, because ultimately, the law has been ambiguous. As one police force solicitor recently said to me in the context of a number of barristers and solicitors attempting to untangle an MCA related incident for yet another Coroner’s case (and kindly agreed I can repeat this observation):
“It must be impossible for officers: I’m legally trained and have to time to digest material – I still struggle with this area of work.”
We have to ask again what it means by ‘life-sustaining intervention’ and ‘vital act’ (to prevent a serious deterioration, etc.). If someone is having a great-attack, it’s fairly clear cut. Someone who has taken a potentially serious or fatal overdose is similarly straight-forward. But what about someone who is suicidal and is indicating they may take an overdose? I’ve known officers or paramedics seek to remove someone from the premises on the basis that it’s necessary to stop an action that has not yet happened which would necessitate -life-sustaining treatment or prevent a serious deterioration in someone’s mental state which could lead to suicide. It’s always been my own view that this isn’t right. The action taken must, in my view, be something that seeks to address things that have already happened and not things which might happen, however likely.
If you are on premises with someone in a mental health emergency, for example and worried they are likely to seriously harm themselves or worse, it will always be less restrictive (remember, any action taken under the MCA must be ‘the least restrictive thing’) to remain at that premises to keep them safe and seek formal assessment under the Mental Health Act 1983, via an AMHP and a Doctor. This can be done urgently under s4 MHA, if necessary – or the AMHP could arrange a s135(1) warrant to remove the person to a Place of Safety. Various judges, Coroners and others have reminded local authorities of their need to have AMHPs available to give effect to the MHA and its framework. I know many will cite the resourcing difficulties that such an approach entails, but it’s not different to pointing out the police must have officers available 24/7 to answer 999 calls. The fact remains, and this amending legislation just tells us again, the MCA can’t be used to circumvent the MHA.
So for me, the new s4B MCA give us more words but some greater clarity of that which many have worked to for a while – and it seems to have survived contact with the scrutiny of several coroner’s courts and been the interpretation of the High Court in the Sessay case (2011): you can rely upon the MCA to remove people from their premises only where this is proportionate to the threat which must, essentially speaking, be a life-altering or life-threatening medical emergency in respect of medical mechanisms already in motion. You can’t rely upon the MCA to intervene against things which have not yet happened because there will always be a less restrictive way of proceeding.
Just my view – happy to hear others in the comments below.
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