The Mental Capacity Act. Some Questions…

On two occasions this week I have had to consider the legislation and implications of utilising the provisions of the Mental Capacity Act 2005. Both of the situations presented different circumstances which meant that the outcome was different in both cases. In one instance we did use it and in the other we didn’t.

There is no doubt about it, the Act itself is a complicated and badly worded piece of law which, though written with the best of intentions, leaves a lot of professional people standing around scratching their heads and working things through whilst time is ticking away at potentially life threatening incidents.

In one of these incidents I found myself initially thinking that the MCA would not apply only to reconsider this position as the situation progressed. This is not unusual as events and circumstances can change in any incident.

What bothered me was the amount of brain power I had to use to actually make a decision which I felt was lawful and appropriate.

The MCA is something I have found that police are having to consider with increasing regularity. The implications of using it are quite profound in that you could be compelling someone to undergo treatment when they don’t want to. It is all a question of whether it is believed that the person has the mental capacity to make that decision – even if it seems to be completely “wrong.”

I would always argue that wherever possible the decision about mental capacity is a clinical one and best made by medically trained staff. It is therefore imperative to get medical assistance to the scene as soon as you can.

However, having made the decision that someone lacks mental capacity there is some confusion over what can happen next.

All of this led to me posing a series of questions on Twitter to @MentalHealthCop. We were joined by a number of other contributors, mostly from the medical profession and it was interesting because there appeared to be no consensus of opinion on some issues. It even appeared as though training was different in different parts of the country.

In the end I started to confuse even myself so I asked @MentalHealthCop if we could perhaps turn the discussion into a “call and response” blog.

As a practical and operational police officer I wanted to know what I could and couldn’t do in a variety of situations.

What follows is a list of scenarios and MY THOUGHTS on where we stand legally in relation to the Mental Capacity Act. I must stress that the answers ARE NOT guidance or training or right. They are purely my thoughts and considerations and should not be relied upon as “what to do” in matching circumstances.

Please read @MentalHealthCop’s blog responseand previous blogs on the subject of the MCA for further opinion, guidance and information. This blog should be read in tandem with this one.
In each of these circumstances it needs to be accepted from the start that we are in a private premises and that medical staff (paramedics) have judged the person to lack mental capacity.

Scenario 1

Patient at home with a life threatening condition or illness. The life threatening condition or illness itself has placed the person in a position where they lack mental capacity to make an informed decision – for example potassium rates are too low which is affecting brain function.

The person is refusing to go with paramedics to hospital and the paramedics are saying that if treatment is not forthcoming immediately then it is likely that the person will die.

Can police assist the paramedics and use coercive force to remove the patient from their home and take them to hospital for treatment against their will?

In these circumstances I believe that the MCA fully covers the situation and officers can use force to remove the patient and transport to hospital for treatment.

The Mental Capacity Act 2005 contains 69 Sections plus Schedules but in ALL of these cases, the sections which apply to the decision making of professionals are within:

Section 4: ​Best Interests of the patient
Section 4A:​Restriction of deprivation of liberty
Section 4B:​Deprivation of liberty necessary for life sustaining treatment
Section 5: ​Acts in connection with care or treatment
Section 6:​Section 5 acts: limitations

I do not propose going through each of these in detail but to summarise how I believe they apply here I would argue that the action is in the best interests of the patient.

Section 4A must be read in conjunction with 4B. Section 4A alone would not allow for action to be taken here but Section 4B allows for action to be taken in order to provide “life sustaining treatment” or to undertake a “vital act” in order to prevent the serious deterioration in the patients’ condition.

We will have complied with Sections 5 and 6.

Therefore, it is my belief that, in these circumstances, once the decision is made by medics that the person lacks mental capacity and this is communicated to officers (with explanation and rationale) that the officers can assist in the forcible removal of the patient from a private place for life saving treatment.

Scenario 2

Patient at home who appears to be suffering from a mental health disturbance. Police and paramedics are in attendance and the paramedics state that there are no physical conditions present which present a life threatening condition. We are left purely with the mental health disturbance and a patient who is unwilling to co-operate and will not leave and go to hospital.

No crime has been committed and there is no immediate threat to that person’s life. Their behaviour is such that, if officers were to encounter them on the street, they would utilise the provisions of Section 136 of the Mental Health Act 1983 as the person appears to need immediate care and control because of a mental health disturbance.

That option is not open because this is a private premises and Section 136 does not apply.

In these circumstances it would appear to be in the best interests of the person to get them to a place of safety for assessment and treatment.

Can officers use the Mental Capacity Act and remove the person forcibly from the address to a hospital or place of safety?

My answer – No.

Even though this seems to be a logical thing to do it has been attempted and, through the stated case of Sessey v South London and Maudsley NHS Foundation Trust (2011) has been found to be unlawful.

In the case of Sessey officers appeared to have been in these exact circumstances. They entered the claimants house, unaccompanied and without a Section 135 Mental Health Act warrant. The officers purported to be acting under the Mental Capacity Act in the person’s “best interests.” The claimant was removed from the house against her will and taken to hospital where she was detained for many hours prior to being assessed. Officers had used “the powers” of the MCA in order to get her there and detain her there.

In a definitive judgement, the Judge ruled that this action, though no doubt well intentioned, was unlawful.

Specifically, the Judge said that Section 135 and 136 Mental Health Act 1983 are the EXCLUSIVE powers available to police officers to remove persons who appeared to be mentally disordered to a place of safety. Sections 5 and 6 MCA do NOT confer on police officers the authority to remove persons to hospital or other places of safety for the purposes set out in Sections 135 and 136 of the Mental Health Act.

Ultimately, the ONLY legal recourse in these circumstances is provided by the Mental Health Act.

Therefore, the ONLY options available would be to obtain a Section 135(1) Warrant via an AMHP and conduct a Section 4 Mental Health Act assessment within the address which could THEN empower officers to remove the patient if the assessment led to their Sectioning there and then.

(NB – I have since been corrected that actually the action required should simply be to get an AMHP to undertake a mental health assessment. How they go about that is up to them (it may involve 135) and the outcome cannot be pre-determined. It was not the intention of that paragraph to prescribe a formula or outcome – the main point is – in those circumstances – you can’t use the MCA and you need input from an AMHP to progress the situation.)

The Judge stated that this was the only legislation which exists and it applies in “urgent” cases even if the process would to too slow.

Effectively, until someone changes the law – it’s all you have.

What this means in simple terms is – that because the only reason to remove the person from the address was for the purposes of a mental health assessment, even though it was done with the best of intentions and with her best interests in mind, this is NOT covered by the Mental Capacity Act and the only option was to follow the legal process provided by Section 135 and Section 4 of the Mental Health Act.

In other words – no – police cannot us the Mental Capacity Act to remove someone from the address, even if they appear to lack capacity, if the only reason for doing so is to ensure they get a mental health assessment.

They have to approach the Crisis Team to obtain a warrant no matter how long it takes to actually do this.

Which leads me to the massively complicated

Scenario 3

A person in a private premises who appears to be suffering a mental health disturbance. The person’s behaviour is very agitated, possibly even violent and aggressive. They present a risk to themselves and others at the scene. This is a full blown “crisis” where common sense dictates that “something” has to be done to ensure everyone’s safety.

Let us assume that no crime has been committed and no threat has been made to anyone else within or outside the premises.

Let us look at four sub-scenarios

A. The person is self harming by head-butting a wall.
B. The person has a knife and is threatening to self harm.
C. The person has a rope and is threatening to hang themselves.
D. The person states that they have taken a huge overdose.

Paramedics at scene have again said that the person appears to lack capacity but, with the exception of Scenario 3D there is nothing “medical” which requires immediate action. The cause of the loss of mental capacity appears to be a disorder of the mind rather than any injury or physical illness.

Therefore, the action intended to be taken would be to PREVENT the person causing harm to themselves with a view to having their mental health assessed as in Scenario 2.

In which – if any – of these scenarios is there provision to use the Mental Capacity Act to take decisive action and can officers remove the person by force to hospital or a place of safety.

Let us also assume that negotiation has been tried and has failed. The situation has reached the tipping point.

It was on this aspect that @MentalHealthCop and I differed in our opinions. Now I bow to Michael’s superior knowledge and expertise in all areas of Mental Health and this is no exception. What we have here is a difference in interpretation of the law and the Sessey judgement.

The question is can officers REMOVE the person by force to hospital or place of safety using the Mental Capacity Act.

I believe – and these are entirely my views and interpretations – that the answers to the scenarios are:

A: No
B: No
C: No
D: Yes.

Ultimately, because of my responsibilities both moral and under Article 2 of the Human Rights Act – I have a duty to protect that persons’ life. Therefore, I want to be able to stop them from hurting themselves.

If there is no crime being committed (and suicide is not a crime) then what powers do I have to intervene and prevent the person taking that action?

I have a responsibility but do I have the powers to back this up?

In scenario 3A – I want to stop the person banging their head on a wall and injuring themselves. The only way I can do this, if they won’t stop on request, is via physical restraint. Is banging your head against a wall a Breach of the Peace?

If I have stopped the person from doing this action by using restraint what do I want to happen next. I still want them to receive a mental health assessment – not treatment for a life threatening condition. So my intention by removing them from the location would be to get them assessed. To me – Sessey prevents that option.

If the situation involving restraint becomes prolonged does it now become a medical emergency? Does this change the situation and does it, in itself, require immediate hospital admission?

In Scenario 3B we are faced with a person with a knife. They are threatening self harm but have not done so yet. Can I consider this a Breach of the Peace and use force to disarm them?

Having done so – is the Breach of the Peace over and do I now have a power to remove the person by force to a hospital if the ONLY REASON for this removal is for a mental health assessment?

Again, this scenario could lead to prolonged restraint.

In Scenario 3C – as long as they are holding the rope and not trying to do anything with it then I am powerless? If they suddenly try to use it to self harm or kill themselves can I again use Breach of the Peace to remove it and, having done so, is the Breach of the Peace over?

Again, my reason for removing them is for a mental health assessment, the “threat” of the rope is now gone. This is another situation which could lead to prolonged restraint.

Does prolonged restraint, therefore, constitute a situation which requires “life sustaining treatment” or a “vital act”?

My position on 3A, B and C – ridiculous though it sounds – is that Sessey prevents us from REMOVING the person from the location because ultimately our intention is for that person to receive a mental health assessment.

The way I read it – in 3A, B and C you are into a position of restraining the person at the location until someone can get a Section 135 Warrant together and come and do a mental health assessment at the location.

This is hardly in anyone’s “best interests” but it is my reading of the MCA and the implications of Sessey.

In Scenario 3D the situation is different. In this case the potential effects of the suspected or taken huge overdose take precedence. The reason for REMOVAL is for these effects to be countered and for the person to receive “life sustaining” treatment so that the overdose doesn’t kill them. Providing that the “lacks capacity” judgement has been given by the paramedics then I do believe that the Mental Capacity Act could be used here.

We would not be REMOVING the person for a mental health assessment though this would no doubt follow. The primary reason would be to get the overdose medically treated before it did lasting or permanent harm.


These are all circumstances that I have either faced or know of officers who have had to face them. This is a really complicated piece of legislation which is why I believe that Section 136 needs to be amended and that private places be included within its scope. Even if that means a temporary holding power for a limited time under a senior police officer’s authority.

In these circumstances no-one has time to sit around playing with complexities of law. Instant decisions need to be taken and our instincts would be to step in and “do something”. We know from Sessey that these instincts can lead to unintentional unlawful action.

I do not criticise the officers in the Sessey case. I would argue that they did the “right” thing – even if the law eventually said otherwise. They were not disciplined as far as I know, nor should they have been in those circumstances, but the claimant was successful and their actions could be construed as assault and unlawful imprisonment.
This hardly seems fair when they were seemingly trying to help.

My interpretation could be completely wrong and I now hand over to @MentalHealthCop or indeed anyone else who wishes to contribute and discuss my interpretation.

Faced with any of these situations again I WOULD do something – the question is – would what I do be lawful even if it was done solely with the purpose of protecting life or getting proper medical treatment or mental health assessment.

If it isn’t lawful – then doesn’t the law need to be reviewed?


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16 responses to “The Mental Capacity Act. Some Questions…”

  1. mentalhealthcop says :

    I’m only going to make a minor addition to my blog published earlier today, but answer the bulk of your Scenario Three jobs here. Your answer of No, No, No, Yes could be altered slightly if you consider the following.

    There is a difference in the MCA between restraint (covered in s6 MHA) and in an urgent deprivation of liberty (covered in s4A/4B). You could look to address 3A (the head banging) in the first instance, by restraint to prevent it, justifying intervention under s4, defended by s5 with reference to restraint in accordance with s6 (to prevent a serious deterioration in the person’s condition – because how long do you let someone bang their head before agreeing there could be serious deterioration-related consequences?) Attempt the restraint, briefly, and evaluate. If easing-off the restraint allows it to recur, you’ve got a different situation on your hands than if you found it did not recur. If it, stops: job done and you’re back to the AMHP and a MHA assessment.

    Scenario 3B – I think your next scenarios are less clear cut and present the MCA question to early. If a person is busy doing nothing active with the knife but they are threatening or indicating, then you don’t invoke the MCA, you negotiate for as long as it takes until either they put the knife down and you resort to AMHP / MHA or they start using the knife, in which case the conditions for restraint and / or deprivation of liberty would kick in.

    Scenario 3C – as per 3B, you negotiate until you you either resort to the AMHP / MHA outcome or until the risks escalate and you invoke the MCA for life-sustaining or serious deterioration related reasons. Of course, if in either Scenario 3B or 3C you find yourself invited to leave the premises and you have now lawful grounds to remain, then you may be forced into an earlier decision between withdraw to force MHA route or insist upon MCA intervention. Uber-difficult!

    Scenario 3D – I think we all see how this is much clearer cut: overdose could so easily be life-threatening and officers or paramedics just won’t know what has been taken and / or whether the truth has been told about what has been taken, that you act as desribed.

    There are so man specific variables that could be thrown into all of these scenarios, though that would alter than answer any of us would give if put on the spot for a “Yes / No” on these issues. Some of the worst ever legal drafting, in my humble view.

    • nathanconstable says :

      Buried in the blog is the fact that in each scenario negotiation had been tried, had failed and the situation was now at “tipping point”

      In all the Scenarios in 3 we are at the point of needing to physically act in order to prevent harm.

      My query is very specific in 3A, B and C – our intention is still for the individual to receive a mental health assessment albeit that they are now doing something we wish they weren’t.

      What “life sustaining treatment” or “vital act” is required now that we have reached the point of restraint?

      Restraint is of itself – a vital act – potentially.

      Can you see the very narrow point I am trying to make here?

      If the person is “kicking off” what treatment can they be given to stop it. Chemical restraint? Is that an option?

      Taking them to hospital for “treatment” won’t necessarily stop them kicking off in the ambulance, police can or hospital.

      Once we get them to hospital how do we stop them “kicking off”.

      Is “kicking off” a deterioration in condition?

      If they are being violent and resisting and we know that they need a mental health assessment our REMOVAL of the person has to involve a reason which requires “life sustaining treatment” or a “vital act”

      This is where I am struggling because as I see it – what we would actually be doing is conveying them to hospital with a view to stopping the violence or the risk of injury from the violence. The only way to do that would be to sedate them.

      • mentalhealthcop says :

        Surely then, if someone who lacks capacity, ostensibly because of mental health related issues, is at tipping point and “common sense” says physical intervention is required to keep them from hurting themselves, by knife or headbanging or whatever other mechanism – surely we would then argue that the intervention by restraint or deprivation of liberty is necessary “to prevent a serious deterioration in their condition?” … their “condition” being not just the mental health condition at the root of the lack of capacity, but also the physical condition that results from decisions taken during that disturbance of the mind that means they lack the ability to “CURE”.

        That’s why I don’t have much of an issue with the intervention if it really has got the the point of “if we don’t do it know they are gonna get seriously hurt.” This is the very example in my blog of the knife to the throat where officers interevened. I think it is to prevent a serious deterioriation in their condition.

      • nathanconstable says :

        I can see that argument. But – if we are using MCA to get them out of there – rather than BoP – then the only place you can take them is a hospital.

      • mentalhealthcop says :

        But if their condition is potentially going to seriously deteriorate and they need medical intervention (esp for the overdose examples or if they’ve managed to self-harm) – surely a hospital is where we need them to be?

      • nathanconstable says :

        Yes – the OD example is not in question. MCA covers it.

        If they HAVE cut themselves then the MCA covers it.

        I am talking about a case where the initial physical intervention STOPS them from doing it and you are left with an uncut – not overdosed – struggling patient who needs an MHA assessment.

        This has happened to me several times.

        It’s not the initial STOPPING action that I am concerned about – that’s the restraint element of the MCA.

        I am asking – if the restraint is stopping further deterioration or risk of harm – what then?

        (Even though restraint is inherently dangerous)

      • mentalhealthcop says :

        What then? – AMHP / MHA.

      • nathanconstable says :

        And – if you take the restraint option and disarm – is the threat to condition now over.

        My interpretation is that it would allow you to intervene and restrain but not necessarily remove.

        If the restraint has actually succeeded in stopping whatever it was they were trying to do.

        I am being really pedantic here I know

      • mentalhealthcop says :

        You’re right – as my initial comment to the blog suggested when you “talk someone” into putting the knife down. I first said we need to distinguish between what might be a justiable act of restraint and that which moves on to become an urgent deprivation of liberty.

        If the restraint gets you back to a position where there is no need for “life-sustaining treatment” then you’re back to AMHP / MHA.

  2. Downunder says :

    In Victoria, Australia, section 10 of the Mental Health Act 1986 makes no distinction between public place or private premises. Police can enter private premises to apply section 10 and transport the person to hospital. Is this not the case in Britain? Jump on the internet and have a look under the victoria legislation I would be interested in you opinion.

    • nathanconstable says :

      Hi, this is not the case in the UK.

      Section 136 Mental Health Act 1983 allows police to detain someone in need of immediate care and control because of a mental disturbance in a PUBLIC place.

      In a private place the provisions of Section 135 cover it but that requires a warrant, sworn in front of a magistrate by approved mental health practitioners.

      This obviously takes time and is no use in situations requiring immediate action.

      Police currently have no options in a private premises without this warrant and a full assessment team present.

      Hence all the confusion

      I and others are campaigning for the law to be changed so it is more in line with your Section 10.

  3. Downunder says :

    Hi again,
    To help in your campaign jump onto google and type in victorian law today this will take you to all the current legislation in the state of victoria. The mental health act 1986 can be downloaded. Hopefully this can be used as an example of legislation dealing with mental health matters that allow police to deal with the issues in a more efficient manner. Of course our system isn’t perfect and has its problems. I can say that a person with mental health issues would not be in a police cell!

    • mentalhealthcop says :

      This is why the UK is an anomaly – as I as I recall having looked a few years ago, most countries – including the states of Australia and the provinces of Canada – fail to distinguish between public / private. That’s why some of us are arguing that this needs to be looked at by the UK Parliament. This whole blog post would not really need to exist, if our law were like Ireland’s or Australia’s.

  4. Sectioned Detection says :

    What about people who self harm yet do not inflict life threatening injuries? Even if they fail capacity is it proportionate to forcibly remove them? If they’re superficial cuts can we rely on PACE to entry and if we do and it’s clear it’s non life threatening can we stay even if they’re in crisis? What if they can be treated at home but the NHS refuse to do so? Does that mean we have to take them out by force because of a flawed system?

    In the OD scenario what happens if they regain capacity whilst at A&E for example alcohol wears off can we use 136 MHA to stop them leaving? After all it does say ‘found’ in a public place not ‘forced’. Or should they carry out a MH assessment whilst they still have the drugs in their system? The codes of practice says they can.

    All these kinds of questions need resolving and quickly before somebody dies or lands themselves in court. I know most cops say they would rather be in court for assault after saving a life then explaining to a coroner why they didn’t act. I usually reply that it should never get to that choice in the first place and remember that at least a coroner won’t send you to jail a magistrate can.

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  1. The Mental Capacity Act. Some Questions…... - September 29, 2013
  2. The Mental Capacity Act | Mental Health Cop - June 28, 2015

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