PROCEDURE Mental Capacity Act. Number: E 0503 Date Published: 20 January 2016

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1 1.0 Summary of Changes This document has been redrafted and should be read in full by all officers and staff engaged in providing any response to the public concerning all aspects of Mental Health. This procedure must be read in conjunction with: E 0500 Policy - Mental Ill Health; E 0501 Procedure - Section 136 Mental Health Act 1983; E 0502 Procedure - Section 135 Mental Health Act 1983; and E 0104 Procedure Post Reception Detainee Care 2.0 What this Procedure is about This procedure details the specific responsibilities to be undertaken when responding to incidents whereby powers under The Mental Capacity Act 2005 (MCA) are invoked. The MCA creates a framework to provide protection for people who cannot make decisions for themselves. It contains provision for assessing whether people have the mental capacity to make decisions and procedures for making decisions on behalf of people who lack mental capacity and safeguards. The underlying philosophy of the MCA is that any decision made, or action taken, on behalf of someone who lacks the capacity to make the decision or act for themselves must be made in their best interests. The MCA applies in England and Wales. It affects anyone whose mental capacity to make decisions is affected by (what the MCA refers to as) "an impairment of, or a disturbance in the functioning of, the mind or brain." In some cases, a person s capacity may be permanently affected, perhaps because they have a form of dementia, a learning disability or have suffered a brain injury. However in other cases the person s capacity might be affected only for a temporary period, perhaps because they are confused or unconscious. It must be remembered that just because a person has a mental health diagnosis or is detained under the Mental Health Act 1983 does not necessarily mean that they lack capacity to make decisions for themselves. The MCA applies to people with mental health problems only when they experience a mental health problem that affects their ability to make a particular decision. For some people, the ability to make certain decisions is permanently affected as a result of their experience of mental illness. However, many people who experience mental health problems are capable of making all of their own decisions. For others, the ability to make some decisions is affected occasionally and only for short periods. Compliance with this procedure and any governing policy is mandatory. Page 1 of 7

2 3.0 Detail the Procedure The MCA provides a statutory framework which provides guidance to agencies for dealing with people who lack capacity to make specific decision for themselves. It also covers temporary incapacity due to drug or alcohol abuse and mental ill health. The MCA give a legal basis for providing care and treatment for people aged 16 years and over who lack the mental capacity to give consent to such care and treatment. 3.1 Principles of the MCA 2005 A person must be assumed to have capacity unless it is established that he lacks capacity; A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success; A person is not to be treated as unable to make a decision merely because he makes an unwise decision; An act done, or decision made, under this Act, or on behalf of, a person who lack capacity must be done, or made, in his best interests; Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive. An example of these principles can be evidence by an individual who is in their own home and who has self-harmed. Prior to the Mental Capacity Act being used to restrain that individual and force treatment to their physical injuries the following must be considered: It must be assumed that the individual has the capacity to make the choice to selfharm, even if it is considered to be a poor choice, or bad decision, unless there is clear evidence, suggesting they don t. In assessing whether the individual has the capacity to make this choice consideration must be given as to whether there is a condition which prevents the individual from weighing up all the benefits and consequences and understanding the result of their action; If it is considered that the individual is suffering from some form of mental illness (whether permanent or temporary) that prevents them from making this informed choice AND it is in their best interests to receive treatment then agencies have lawful authority to make a best interests decision to ensure that the individual is detained and then receives treatment; Consideration must also be given to what is the least restrictive manner of providing this appropriate care i.e., is it appropriate for the individual to receive treatment in their own home or if they need removing to a hospital for treatment. Page 2 of 7

3 3.2 Police Use of the Mental Capacity Act From a policing perspective, the Mental Capacity Act is most likely to be necessary in emergency situations when officers are faced with someone lacking mental capacity who may be at physical risk or who may suffer serious physical harm if action is not taken. Prior to using the powers under the MCA, officers must firstly: Determine the person s capacity - everyone is assumed to have capacity unless there is evidence to the contrary i.e., mental condition that causes confusion, loss of consciousness, alcohol or drug use. Capacity is assessed by determining if the individual can: Understand the information relevant to the decision; Use or weight that information as part of the decision making process; Retain that information; Communicate that decision in any way (written, verbal, signed etc). Having assessed the individual lacks capacity officers must then: Determine what is in someone s best interests - it is generally accepted that in an emergency situation attempts to save someone s life or prevent someone from suffering serious harm will normally be in that person best interests. It must be remembered that the use of the Mental Capacity Act is not intended as an alternative, or intended to take the place of the powers contained within Section 136 Mental Health Act 1983 or Section 135 Mental Health Act Public or Private The Mental Capacity Act can be used in both public and private places in situations involving people who have suffered serious physical harm (such as a self-harm injury) or where it is likely they will suffer serious physical harm, but who decline medical aid or other intervention due to lacking the capacity to make a specific decision in regards to this, due to some impairment of the mind. The mental capacity act is simply a way of allowing police to take decisions in connection with care and treatment of someone who the police reasonably believe is not currently able to make decisions in their best interests due to a lack of capacity. It does not allow officers to detain persons for the purposes of a mental health assessment. Page 3 of 7

4 3.4 Conveyance to Hospital When a person is detained under the mental capacity act and they require treatment at hospital, they must be conveyed to an acute hospital (usually an A and E department) as oppose to a mental health place of safety, to allow treatment of physical injuries and an assessment to be carried out in relation to their capacity. Officers may use reasonable and proportionate force in order to restrain that person. Where staff decide the person neither lacks capacity, nor meets the criteria for detention under the Mental Health Act then the person may be discharged. In the situation where someone is reasonably believed to lack capacity, but does not require removing from the scene, but officers believe restraint is necessary to provide treatment or prevent harm, they may use reasonable and proportionate restraint in order to restrain that person to enable treatment to take place. Where it is suspected that any individual detained under this section is suffering from excited delirium or acutely disturbed behaviour (ADB), this must be treated as a medical emergency and an ambulance called. No-one detained under the mental health act who has been medically sedated should be conveyed anywhere without a suitably qualified clinician experienced in caring for such patients. 3.5 Recording Where restrain is used on an individual under the MCA officers remain responsible for that person s health and safety, until they hand responsibility to a competent authority who is properly briefed on the relevant background and risks. In order to discharge their duty of care, prior to walking away from someone who has been delivered to the NHS, this handover must occur and be documented by the officer. Where an individual is restrained using powers under the Mental Capacity Act, (regardless whether they are conveyed to hospital or not officers are required to complete all of the details on form A287. An ATHENA non crime investigation event must be created and the A287 scanned and attached to the Athena event. A copy must then be ed to the generic box before the end of that duty. Page 4 of 7

5 3.6 Adults at Risk of Abuse and Neglect The purpose of adult safeguarding is to prevent harm and reduce the risk of abuse or neglect to adults with care and support needs. The statutory framework introduced under the Care Act applies to any person aged 18 or above whom: Has needs for care and support (regardless of the level of need and whether or not the local authority is meeting any of those needs); Is experiencing, or is at risk of abuse or neglect; and As a result of those needs, is unable to protect themselves against the abuse or neglect or the risk of it. Police officers will often, in the course of their duties, come into contact with adults at risk of abuse or neglect who do not meet the threshold for detention under the Mental Health or Mental Capacity Acts. Where the adult is at high risk of immediate serious harm or death, police personnel must immediately consider how to reduce this risk, whilst having regard for the wishes and capacity of the adult at risk. Immediate engagement of the Local Authority Safeguarding Teams through the submission of a SETSAF 1 will ensure that future action taken is in line with the legal frameworks for safeguarding vulnerable adults, and the individual s specific needs and requirements are taken into account and provided for. The SETSAF1 will be sent to the relevant Local Authority as per the details on the form and copied to the Safeguarding Vulnerable Adults Officers in the Central Referral Unit (CRU). See B 1407 Procedure - Safeguarding Vulnerable Adults for further details The Role of the Safeguarding Vulnerable Adults Officers (SOVA s) Safeguarding Vulnerable Adults Officers based within the CRU will be responsible for the receipt of any SETSAF 1, assessing whether any criminal offences are identified and the liaison with any investigative department or outside agency. Further advice and guidance is available within B 1407 Procedure Safeguarding Vulnerable Adults. The SOVA team will ensure all SETSAF1s are entered onto Athena. Page 5 of 7

6 3.6 Risk Professionals and practitioners must respect the rights of individuals whilst seeking to ensure their behaviour does not harm themselves. There is an inherent right for individuals to take risks. Where the person is deemed to have capacity and to understand the implication of their actions every effort should be made to encourage the individual to engage with the most appropriate service. It is only when it is deemed that the individual does not have the capacity to understand the implication of their actions that the mental capacity act applies. 4.0 Equality Impact Assessment An Equality Impact Assessment has been carried out and shows the proposals in this procedure would have no potential or actual differential impact on grounds of race, ethnicity, nationality, gender, transgender, disability, age, religion or belief or sexual orientation. 5.0 Risk Assessment Police officers and police staff will adopt a generic risk assessment in line with the relevant procedure and in accordance with their individual roles. 6.0 Consultation The following departments/roles have been included in the consultation for this procedure: Unison Federation Equality and Diversity Co-ordinator Evolve Health & Safety FCR Chief Inspector Custody Equality of Services Manager Support Networks o MESA o Disability Network o Women s Leadership Development Forum o Work Life Balance o NEXUS Acting Chair o Christian Police Association Page 6 of 7

7 7.0 Monitoring and Review This procedure will be reviewed by, on or behalf of, the Head of Crime and Public Protection in consultation every 12 months. 8.0 Governing Force policy. Related Force policies or related procedures E 0500 Policy - Mental Ill Health; E 0501 Procedure - Section 136 Mental Health Act 1983; E 0502 Procedure - Section 135 Mental Health Act 1983; B 1400 Policy - Protecting Vulnerable People B 1407 Procedure - Safeguarding Vulnerable Adults E 0100 Policy - Custody E 0104 Procedure Post Reception Detainee Care B 1600 Policy Missing Persons B 1601 Procedure Missing Persons B 1602 Procedure Found Persons 9.0 Other source documents, e.g. Legislation, Authorised Professional Practice (APP), Force forms, partnership agreements (if applicable) A Joint Policy Relating To Section 136 Mental Health Act (1983) Agreed by Essex Police, Essex County Council, North Essex Partnership Foundation NHS Trust and South Essex Partnership NHS Foundation Trust. CJD Website NPIA Guidance on responding to people with mental ill health or learning disabilities Page 7 of 7