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 —
ID – has the patient got an impairment of disturbance of the mind or brain? << This is the diagnostic test.
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.
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.
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.
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 –
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.
Winner of the Mind Digital Media Award.