What would a member of care home staff do if they saw a frail, elderly and confused resident walk out of the home towards a busy main road? It’s not a trick question! I hope the answer is the care staff would follow him or her out of the door and bring them back into the home, gently holding their arm. We can do this because the Mental Capacity Act 2005 (MCA) protects us from liability for actions done in someone’s best interest where they lack the capacity to make a decision, like ‘should I cross this busy main road?’ In a way the answer to the question now is no different if I had asked it before the Mental Capacity Act was introduced. The Act hasn’t changed what good care staff should have done anyway. Before the Act the common law would guide us to exactly the same action. Now in this example, I’ve suggested the benign use of the arm to guide the person back in, but what if the person had been resistant? Well, the MCA does allow us to use forcible restraint to protect someone from harm, (if the restraint is a proportionate response to the likely harm, in this case of being run over by a car). So does this mean that the Mental Capacity Act allows us to restrain people who lack capacity whenever we think fit?
A recent case brought by the father of a young man who we know as ZH, found the Metropolitan Police had gone beyond the bounds of what the MCA allowed. The story happened as long ago as 2008, the case was heard in the Central London County Court in 2012, and then again in the Court of Appeal in February 2013 following an unsuccessful appeal by the Metropolitan Police. Though the case was primarily about the police’s actions on the day, I want to explore in this article how care staff might respond when faced with similar circumstances.
I don’t suppose care staff knew what events would unfold when they took ZH in September 2008 to Acton Swimming Baths, with the intention of getting him used to the idea of joining in future activities there. Unfortunately nothing went according to plan on the day. ZH was 16 at the time, (the MCA applies to people over the age of 16) and had severe autism and learning disabilities. The intention of the visit was that ZH would watch from a viewing gallery but he went down to stand at the edge of the pool, transfixed by the water. The pool manager became concerned and thought that ZH’s carer was being ineffective in doing anything to lure him away and so contacted the police for assistance. Two police officers attended and one PC approached ZH, said “Hello I’m Hayley” and then touched him on the shoulder. In response ZH jumped in the pool and with police and pool staff involvement he was dragged back to the edge of the pool, removed, restrained and taken into a police van. The whole incident was clearly very distressing for everyone involved. The police’s view was that the Mental Capacity Act allowed for their actions. ZH lacked capacity to make decisions about his safety, they argued, and they acted in his best interest, and to prevent him drowning by physically removing him from the pool. The judge was highly critical. He said that if the police officers had got advice from the care staff as to how ZH should be approached, a lot of this upset may have been avoided, particularly in view of ZH’s condition of autism. So why wasn’t that advice forthcoming? The police officers’ view was that ZH’s care worker stood back from the whole scene, did not come forward to offer assistance, and that someone had to do something. In fact the care worker told a police sergeant who was present that carers were not allowed to handle pupils.
Well who was right and who was wrong? The Mental Capacity Act does allow care workers, police, or anyone else who might have some duty of care to people without capacity, to restrain someone, where that restraint is necessary to prevent harm, and where the restraint is proportionate to the likely harm.
It is important that care workers, and public service workers in general are aware of the protection that the Mental Capacity Act offers staff in making decisions for people who lack capacity. Discussion at the poolside between care workers, police and pool staff about what was in ZH’s best interests could have resulted in a much more effective way of resolving the situation. I think there are three key messages from this court case for care staff:
- Care staff need to develop an understanding of the Mental Capacity Act 2005 and in particular what it says about restraint. A recent Care Quality Commission report (March 2013) said “There is confusion among care staff about the basic MCA requirements especially relating to the use of restraint. The use of restraint is not always recognised or recorded properly.”
- It is crucial that where care staff need the assistance of police officers and others in helping them manage service users in crisis situations that they are not just standing back and watching. They should give the police as much information as possible about the person and their condition to help them do their job.
- Awareness of autism should be promoted. Indeed the Judge in the ZH appeal case said “The case highlights the need for there to be an awareness of the disability of autism within the public services. It is to be hoped that this sad case will help bring that about.”
Restraint is just one aspect of the Mental Capacity Act. In future articles I will discuss some other aspects of the Mental Capacity Act, including what capacity means, what is in someone’s best interests, the difference between restriction and deprivation, advance decisions, and Lasting Power of Attorney.
The Commissioner of Police for the Metropolis -v- ZH and Liberty and Equality and Human Rights Commission 2013
Monitoring the use of the Mental Capacity Act Deprivation of Liberty Safeguards in 2011/12 Care Quality Commission 2013