Since its introduction into practice in 2007, the Mental Capacity Act 2005 (MCA) has become the primary piece of legislation governing the management of patients who lack the capacity to give or refuse consent to medical treatment or other aspects of their care. The MCA details the legal standards to be adhered to by anybody involved in caring for this patient group. The MCA is considered so central to good practice that a ‘clear understanding’ of it is a specific requirement in the Paramedic Scope of Practice policy (College of Paramedics, 2017).
In the discussion that follows, the information will be drawn, as far as possible, directly from either the MCA or its accompanying Code of Practice document. In order to allow the reader to easily review these documents themselves, the relevant sections from each document will be referenced by either MCA sections (shown in the form MCA Sec 1[1]) or Code of Practice paragraphs (shown in the form CoP 1.1).
Background
Prior to the introduction of the MCA, emergency medical treatment given to an incapacitated adult was done using the doctrine of necessity. The doctrine of necessity is a concept in common law—this means that it is not written down formally in statute but is instead defined by judgements from previous cases (Humphreys et al, 2014). In common law, ‘necessity’ is considered as a defence in situations ‘in which the defendant commits an offence as a result of being faced with the choice of two evils’ (Law, 2015). In other words, the defendant has chosen to break the law for the greater good and, having done so, argues that the act was ‘necessary’ as a justification, rather than as an excuse (Law, 2015). In medical practice, the defence of necessity was invoked in order to justify what was technically an illegal act—often a battery against a person (an unlawful touching)—which had been done in order to either save the life of, or prevent a deterioration in the condition of, that person. The doctrine of necessity had been consistently found to be a valid defence for medical practitioners acting in an emergency situation as long as there was no known objection to treatment; the treatment given was the minimum needed; and there was not a less intrusive alternative way to manage the situation (Laurie et al, 2016).
The MCA formalised ideas from common law, such as the doctrine of necessity and the concept of acting in someone's ‘best interests’, by setting them into the context of a statutory law (Humphreys et al, 2014). Having these ideas written formally in statute law removed a lot of the uncertainty that relying on case law as a defence can bring.
Question of capacity
Much of the day-to-day work undertaken under the Act involves either elderly patients who have a long-term loss of capacity, such as patients with dementia, or patients with lifelong loss of capacity, such as those with severe learning difficulties (Laurie et al, 2016). It concerns not just medical treatment, but can also include decisions about financial matters, personal welfare and social care (CoP 5.1). However, the Act also includes provisions for managing patients experiencing a medical emergency who have a short-term or temporary loss of capacity. This loss of capacity may be because of the medical emergency (such as in a cardiac arrest) or as well as the medical emergency (such as a heavily intoxicated male who has been hit by a car). These situations can be moral and professional minefields for paramedics who are not fully cognisant with the details of the MCA. What follows therefore is an attempt to extract and present the relevant parts of the Act for those working in pre-hospital care.
General points
A couple of important points about the MCA that should be considered from the start are, firstly, that it only applies in England and Wales—Scotland having its own legal structure; the Adults with Incapacity (Scotland) Act 2000, which is broadly similar (Laurie et al, 2016). Secondly, the Act only applies to people aged 16 and over (MCA Sec 2[5]). Thirdly, one of the key principles of the Act, set out at its very beginning, is that there must be an assumption of capacity in all cases (MCA Sec 1[2]).
The implication of this is that the powers contained in the Act cannot be invoked before a mental capacity assessment has been undertaken. However, the Act does allow for action to be taken in an emergency as long as the clinician reasonably believes that the patient lacks capacity (MCA Sec 4[8]) and reasonably believes that they are acting in their best interests (MCA Sec 4[9]). The Code of Practice that accompanies the Act states that ‘in emergencies, it will almost always be in the person's best interests to give urgent treatment without delay’ (CoP 6.35).
When to assess?
The question should be asked then, when should we carry out an assessment of a person's capacity? The simple answer is ‘when a person's capacity is in doubt’ (CoP 4.34). We may have reason to doubt a person's capacity because of their behaviour or circumstances; because somebody else has raised concerns about their capacity; or because they have a previously diagnosed impairment which is known to affect their capacity (CoP 4.35).
Who should assess?
Having established that there is a need to assess capacity, the next question is who can or should carry out the assessment? The Act does not specify any characteristics required of a person to be allowed to assess capacity; there are no formal qualifications or training requirements that must have been met; and there is no need to be in a certain professional role such as that of a doctor or social worker. In essence, anybody can assess capacity; but in practice, it should be ‘the person who is directly concerned with the individual at the time the decision needs to be made’ (CoP 4.38). For decisions relating to medical treatment, it can be any member of the multidisciplinary team that carries out the assessment but ‘the professional responsible for the person's treatment’ has a duty to ensure that somebody has done it (CoP 4.40).
What is capacity and how is it assessed?
Under the MCA, ‘capacity’ is defined as ‘the ability to make a decision’ (CoP 4.1). The assessment of capacity may be possible to do very quickly; for example, in the unconscious patient, who clearly lacks capacity to make decisions. In other cases, it may be very hard to reach a reasonable determination as to the capacity of the patient; for example, if they refuse to engage with the assessment process.
In order to decide if someone lacks capacity, two questions need to be answered. Firstly, does the person have an ‘impairment of the mind or brain, or is there some sort of disturbance affecting the way their mind or brain works?’ (CoP 4.11). Some examples of conditions which may satisfy this condition are dementia, intoxication with drugs or alcohol, concussion, delirium, and significant learning disabilities (CoP 4.12). Secondly, does that impairment or disturbance ‘affect their ability to make the specific decision when they need to?’ (CoP 4.13). Putting these two questions together, the MCA defines a person lacking capacity as follows:
‘a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.’
The assessment process to determine if the patient lacks the ability to make a decision is the four-question model (MCA Sec 3[1]) familiar to most paramedics these days. In order to be deemed to have the ability to make a decision, the patient must be able to do all of the following:
Understand the information relevant to the decision
Retain that information
Use or weigh that information as part of the process of making the decision
Communicate his decision (whether by talking, using sign language or any other means)
Capacity is not absolute
There are some key points regarding the definition and assessment of capacity that need to be understood by anybody using the MCA. Capacity is not absolute—that is, the patient does not either have capacity or not have capacity. Depending on the degree of incapacity, it may be that a patient has capacity to make one decision, but not to make another that has more serious consequences. The determination as to whether capacity is present or absent must be asked specifically for the decision that the patient needs to make at that specific time (CoP 4.4).
Capacity can fluctuate, it may be that the patient who lacks capacity at this moment in time could be expected to regain it at some point in the future. This is important when considering if a decision needs to be made now or can, and therefore should, be put off until a later time (MCA Sec 4[3]). A decision which seems unwise to the assessor cannot in itself be taken as proof that the patient lacks capacity (MCA Sec 1[4]), nor can a refusal to engage with the assessment process; and although nobody can be forced to engage with the assessment process, a refusal to do so increases the chances that the patient's capacity will be challenged (Sommerville, 2013).
The decision as to whether the patient lacks capacity must not be made using judgements based on the patient's age, appearance, assumptions about their condition, or aspects of their behaviour (MCA Sec 2[3]). Recognising that sometimes decisions have to made on incomplete or inconclusive evidence, however, the MCA does state that decisions pertaining to whether a patient lacks capacity may have to be made on the ‘balance of probabilities’ (MCA Sec 2[4]), that if it is ‘more likely than not’ that the patient lacks the capacity to make the required decision, then capacity can be determined to be lacking (CoP 4.10). The practitioner will be protected from liability if their decision is challenged as long as they are able to demonstrate that ‘they took steps to find out whether the person has capacity and that they have a reasonable belief that the person lacks capacity’ (CoP 4.44)
What are ‘best interests’?
Having determined that a patient lacks capacity to make decisions, or at least the required decision at that time, the MCA does not give the practitioner a blank cheque to then do whatever they want for or to the patient. Any actions taken must be done in their ‘best interests’ (MCA Sec 1[5]). What is meant by ‘best interest’ is not strictly defined as it is recognised that it will vary from person to person (CoP 5.5), but there are guidelines to help make this determination.
Any action chosen should be the least invasive or restrictive to the patient that will bring about their best interests (MCA Sec 1[6]). All efforts to support the patient to be involved in the decision-making process should be made (MCA Sec 4[4]) and, where possible, the patient's previously stated wishes, beliefs, and values should be ascertained (MCA Sec 4[6]).
In order to ascertain these wishes, beliefs, and values, and what may be in the patient's best interests, where appropriate, the views of ‘anyone named by the person as someone to be consulted on the matter in question or on matters of that kind’, ‘anyone engaged in caring for the person or interested in his welfare’, ‘any donee of a lasting power of attorney granted by the person’ or ‘any deputy appointed for the person by the court’ should be sought (MCA Sec 4[7]). This introduces the idea of ‘substituted judgement’—that we cannot determine what is in a person's best interests by asking ourselves what we would want done in the circumstances (CoP 5.7); instead, we have to research our patient and attempt to understand their previously expressed wishes and views to try to determine what decision they would have made in these circumstances (Brazier and Cave, 2016).
Decision-making
Many of the decisions that will be made by paramedics using the MCA will relate to lifesaving treatment. This is defined in the Act as ‘treatment which in the view of a person providing health care for the person concerned is necessary to sustain life’ (MCA Sec 4[10]). There are further provisions, discussed below that relate to decisions that, while not being about ‘lifesaving’ treatment, nevertheless involve preventing deterioration in a patient's condition but, for the most part, decisions relating to non-emergency issues will be able to be delayed until a time when the patient regains capacity or a court has had time to make a determination on them.
One interesting question to ask is: what of a patient whose capacity is going the ‘other way’? For example, a patient who has taken an overdose and refuses treatment but subsequently loses consciousness. Can they now be declared to lack capacity and treated ‘in their best interests’? A determination on this type of dilemma has been made by the courts, and their conclusion was that the practitioner cannot just assume that the patient would now give consent if they still had capacity. Instead, they must consider if, when the patient refused their consent, they intended that refusal to still apply in the changed situation (Laurie et al, 2016). In the example given here, the practitioner would have to consider whether they believe that when the patient refused treatment, they foresaw the possibility that the overdose would render them unconscious and still intended their refusal to apply in this circumstance. Essentially, this is an affirmation of Sec 4[6] of the MCA; that the patient's previously expressed wishes must be taken into account.
The MCA makes it clear that the clinician, working under the powers of the Act, is exposed to no more liability than they would be had the patient had capacity and freely given their informed consent (MCA Sec 5[2]). In other words, the Act, when applied correctly, ‘gives’ legally valid consent on behalf of the incapacitated patient. However, just as with consent given in the normal way, the fact that consent has been obtained offers no protection from subsequent claims of negligence (MCA Sec 5[3]).
Restraint under the MCA
The MCA recognises that there are situations in which a patient without capacity will need to have restraint employed in order to achieve their best interests. Under the MCA, restraint can mean either the application or threat of force in order to make someone do something, or the use of restrictions on a person's freedom of movement in order to prevent them from doing something (CoP 6.40). Some examples of restraint that may be employed by paramedics could be physically stopping an intoxicated individual from walking into traffic; holding the hand of an uncooperative patient with diabetes suspected of having a hypoglycaemic episode to enable measurement of their blood sugar; strapping a patient to a carry chair in order to extricate them to the ambulance; removing tablets from a patient who is threatening to overdose; or returning a patient with dementia who has been missing to their nursing home. A key element of the application of restraint is that, whatever form it takes, it should only be used to avoid some harm coming to the patient and must be necessary in order to avoid said harm. While we may be uncomfortable with the idea of using restraint, it should be remembered that a failure to do so, if it were to lead to the patient suffering harm, could be construed as negligence (Graham and Cowley, 2015).
Restriction vs. deprivation
The MCA considers two different degrees of restraint—restriction of liberty and deprivation of liberty. Put simply, restriction of liberty is to limit the patient's liberty; whereas deprivation of liberty is to take it away (Graham and Cowley, 2015). The European Court of Human Rights has stated that the distinction between the two is not so much defined by the substance of what was done but by its intensity (CoP 6.52). For example, an action which may be seen as merely restriction of liberty could become deprivation of liberty if it continues for a prolonged duration. The distinction may seem vague, but it is nevertheless important because while actions taken to restrict liberty are generally held to be lawful when required under the MCA, actions that amount to deprivation of liberty are not—except in specific circumstances which are discussed below.
The ‘acid test’
In 2015, the Department of Health and Social Care (DHSC) (formerly the Department of Health) published further guidance on deprivation of liberty following a judgement by the Supreme Court. This judgement has introduced what is known as the ‘acid test’ to determine whether an act of restraint amounts to a deprivation of liberty. This test requires that for a restraint to amount to a deprivation of liberty, three conditions must be met:
The Supreme Court further clarified that even if the patient is not resisting the restraining actions, the actions themselves will still amount to a deprivation of liberty.
The kinds of actions taken to restrain someone in situations faced by paramedics would rarely amount, by this definition, to a deprivation of liberty. This is addressed later in the DHSC guidance where it is stated that:
‘the Department believes it would be very rare for there to be a deprivation of liberty when transporting a patient in an ambulance or another vehicle for the purposes of care and treatment.
‘Restrictions imposed while transporting a person who lacks capacity would nearly always be covered by the MCA.’
‘Providers should seek legal advice and potentially legal authorisation in respect of a particularly long journey to which the individual objects and during which significant restraints and restrictions are in place.’
Lawful deprivation of liberty
As mentioned, there are certain circumstances in which it is lawful, under the MCA, to deprive someone of their liberty. Specifically, there are three such circumstances.
The first of these is when the patient is managed under Deprivation of Liberty Safeguards (DoLS); this relates only to patients in hospitals or care homes, who are being managed under conditions that amount to deprivation of their liberty in order to receive care or treatment (MCA Schedule A1). It should be noted that DoLS do not apply to patients detained under the Mental Health Act as this Act contains powers that are sufficient to manage this patient group (Graham and Cowley, 2014); where both Acts could be seen to be applicable, the Mental Health Act is held to have primacy (Sommerville, 2013).
Secondly, the courts may either make decisions for, or appoint a deputy to make decisions on behalf of, an incapacitated person under Sec 16[2] of the MCA. This power may be used where the patient is not residing in a hospital or care home and so cannot be managed under a DoLS; but nevertheless requires actions that amount to deprivation of their liberty in order to manage their care.
The third situation is where the deprivation of liberty is necessary for life-sustaining treatment; this is the part relevant to paramedics giving emergency care. Under Sec 4B, authorisation is given to deprive a patient of their liberty if the deprivation is necessary for (MCA Sec 4B[4]), and done in order to give, life-sustaining treatment, or carry out a ‘vital act’ (MCA Sec 4B[3])—a vital act being defined as ‘any act which the person doing it reasonably believes to be necessary to prevent a serious deterioration in [the patient's] condition’ (MCA Sec 4B[5]).
It is made clear in the MCA that any restraint employed—either to restrict or deprive someone of their liberty—must meet certain criteria. It must be both necessary to prevent harm to the patient (MCA Sec 6[2]) and proportionate to both the likelihood and severity of that harm (MCA Sec 6[3]). The powers of the MCA must only be employed to manage a harm to the patient himself (CoP 6.41), not to somebody else. For example, a patient who is threatening to stab someone could not be restrained under the powers of the MCA to manage this issue, even if they did lack capacity; however, common-law powers to prevent a breach of the peace could be used. Any restraint employed must be the least restrictive option available and only be employed for the minimum time necessary (CoP 6.44). Finally, restraint must never be employed because it is simply ‘easier’ than a less restrictive option (CoP 6.44).
Exceptions to best interests
As we have seen, a central principle of the MCA is that any care given under it is given in consideration of the best interests of the patient. There are, however, two situations where this best interest rule is set aside: advance decisions to refuse treatment (ADRT), and certain kinds of medical research.
ADRT
When deciding what is in the best interests of the incapacitated patient, any ADRT must be taken into account. An ADRT is a statement made by an adult over 18 years of age, who had capacity at the time of writing, in which potential medical treatments are refused in anticipation of their being needed at some point in the future (MCA Sec 24[1]). It can be written or verbal (CoP 9.10) but, where it is a verbal statement, it should ideally be recorded as such in the patient's medical notes (CoP 9.23). An ADRT does not come into force until the patient has lost the capacity to make the decision for themselves (MCA Sec 25[3]).
An ADRT does need to specify exactly what treatment is being refused (CoP 9.11); although in a seemingly contradictory statement, the CoP then states that a decision that ‘all treatment is refused in all circumstances’ could be held to be valid (CoP 9.13). An ADRT cannot be used to refuse basic care requirements such as for ‘warmth, shelter, actions to keep a person clean and the offer of food and water by mouth’, but can be used to refuse artificial hydration and nutrition (CoP 9.28).
An ADRT is not valid if the patient has, since it was drawn up, either withdrawn it while he had the capacity to do so, conferred lasting powers of attorney to another person, or done anything ‘clearly inconsistent with the advance decision remaining his fixed decision’ (MCA Sec 25[2]).
An ADRT is not applicable if it does not relate to the specific treatment mentioned in it; if any circumstances specified in it are absent; or ‘there are reasonable grounds for believing that circumstances exist which (the patient) did not anticipate at the time of the advance decision, and which would have affected his decision had he anticipated them’ (MCA Sec 25[4]), such as advances in medical treatment.
For situations where the ADRT refuses a lifesaving treatment, it must (MCA Sec 25[5&6]):
It is the responsibility of the person making the ADRT to ensure that it is available when it is needed (CoP 9.38). In emergency situations, the validity or otherwise of an ADRT presented to a paramedic crew can make these decisions seem less black and white than the legislation suggests. The MCA takes account of this by stating that the practitioner need only ‘reasonably believe’ that an ADRT exists and is valid in order to withhold or withdraw treatment (MCA Sec 26[3]); but equally warns that where it is determined that a practitioner is ‘satisfied’ that an ADRT exists but still gives treatment, they may face criminal prosecution or civil liability (MCA Sec 26[2], CoP 9.2). Where there is doubt or dispute about the validity or existence of an ADRT, a determination must be made by the courts; this will obviously take time and the Act states that while waiting for this determination, life-sustaining treatment, and treatment to prevent serious deterioration, can be given (MCA Sec 26[5]). Even if an ADRT is thought not to be applicable in the circumstances, it should still be considered when making a best interests determination as an indication of the patient's views and wishes (CoP 9.45).
Medical research
The second occasion when a practitioner may act in a way which may be regarded as not being in a patient's best interests is when they are involved in certain types of medical research. This is a controversial area as the research, while in the best interest of the medical community generally who will benefit from the knowledge gained, may not be in the best interests of an individual patient.
The MCA recognises the difficulties in carrying out research in emergency situations, especially those as dire as a cardiac arrest, and it contains provisions to allow for research to be carried out in these situations where consent cannot reasonably be expected to be gained. Under the MCA, research can be carried out in situations where the patient has lost capacity as long as certain criteria are met. The research must have been approved by a research ethics committee (MCA Sec 30[1]); and it must be research into the specific condition which has caused the patient to lose their capacity (MCA Sec 31[2]) for which there must not be a comparable way to carry out the research using patients who can consent (MCA Sec 31[4]).
The MCA states that ‘the interests of the person must be assumed to outweigh those of science and society’ (MCA Sec 33[3]). The research must have the potential to benefit the patient without imposing a burden on them which is disproportionate to that potential benefit (MCA Sec 31[5]) or be ‘intended to provide knowledge of the causes or treatment of, or of the care of persons affected by, the same or a similar condition’ (MCA Sec 31[5]). This ‘or’ seems to open the door to research that sacrifices a patient to the greater good, but it is tempered by Sec 31[6] which states that there must be reasonable grounds to believe that the risk introduced by the research to the individual patient is ‘likely to be negligible’.
Conclusions
As a piece of statutory legislation, the MCA can seem daunting to the unprepared. However, by removing the need to rely on common-law powers, the Act provides a solid and consistent legal framework to enable paramedics and others to care for incapacitated adults in emergency situations. By understanding the relevant parts of the Act, paramedics can manage these often complicated situations with confidence that they are practising both in the best interests of those in their care, and safely within the boundaries of the law.