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Mr Robert Wheeler

Mental capacity, part 1


On these pages I discuss the clinical law on which our nursing and medical staff rely when caring for our patients.

Mr Robert Wheeler, director, department of clinical law


Mental capacity should concern us all, not least because any citizen (including clinicians), risks losing it at any moment. The Mental Capacity Act 2005 (MCA), the subject of much teaching and mandatory training, is the English Parliament’s central expression of how a citizen’s mental incapacity should be dealt with when dealing with matters of housing, finance and health. It is a paradox that the MCA should be thus named, since it entirely relates to incapacity, and has no application to those who have capacity; i.e. who are competent to make the decision in question. Not wishing to duplicate the education that has preceded this note, suffice to say that the answers to most questions about the working and application of the MCA are contained within its Code of Practice, obtainable through TSO, (£15 including postage). This is so central to the treatment of any incompetent patient of 16 years or over that it is an essential reference. However, recent difficult cases make this an apt time to provide some new details, which I hope are of interest. 

The use of restraint in patients who lack capacity

If a clinician believes that restraint is necessary to prevent harm to a patient who lacks capacity; and the amount or type of restraint that is used (and the time that it is used for) is proportionate to the likelihood and seriousness of harm... then such restraint is entirely acceptable. In addition, the same principles apply to situations where incapacitated patients pose a risk of harm to staff or bystanders. It should be noted that using restraint for other purposes, such as solely to make a clinical task easier, is not acceptable.

The significance of ‘next of kin'

Although ‘nok’ may be faithfully recorded for every patient on every admission throughout the NHS, it has no legal standing whatsoever. Some statutes, notably the Human Tissue Act 2004 do provide a hierarchy of the patient’s relatives and friends who may provide consent in some circumstances…but the ‘next of kin’ is not a creature recognised by lawyers. From the perspective of the MCA, if the patient lacks capacity, it is of great importance that the clinician should know whether they are ‘befriended’; in other words, accompanied by a friend or relative or acquaintance who is able to provide a picture of the patient’s life, circumstances, beliefs, wishes and preferences. It is from this sort of information that the clinician may be able to decide what actions may be in the patient’s best interests. The accompanying person is not determining what is in the incompetent patient’s best interests; but they are providing the materials on which a clinician may make that determination. As you will know, unbefriended adults who lack capacity must be given the services of an Independent Mental Capacity Advocate (IMCA), properly to furnish the clinician with information that may aid her in determining the patient’s best interests.

It must be clearly understood that it is only when adults lack capacity that we can act ‘in their best interests’. Competent adults are expected to make their own decisions with respect to future treatments, on the basis of the clinical information disclosed to them.

Deprivation of liberty

You will be aware of the DOLS (Deprivation of Liberty Safeguards) arrangements, derived from the MCA, but may still feel somewhat incredulous that such a scheme is necessary in our hospital.

To recap, the scheme is engaged when a patient is identified who lacks capacity to consent for the necessary arrangements for their care and treatment. From the point of view of hospital admission, this generally arises when a patient with learning difficulties or dementia is admitted for clinical management, and this management will necessarily prevent them from leaving hospital, until it is completed. They thus risk, in theory, being deprived of their liberty. A simple example may be an admission for abdominal surgery, following which the patient will be necessarily confined to their bed postoperatively, attached to tubes of various types. Depending on the clinical circumstances, it may be necessary to make a formal application to authorise the impending deprivation of an individual’s liberty. In practice, only a very small minority of the incapacitated patients admitted to UHS will require such an authorisation. Patients who are detained under the Mental Health Act 1983 are not covered by these arrangements; they do not need to be, since the whole point of mental health legislation is to maintain scrutiny on the State to prevent unwarranted detentions.

The purpose of this note is to explain why this is all necessary. In a recent group of cases1, the Supreme Court considered the situation of three people, all who had learning difficulties, and some of whom displayed difficult behaviour, such as eating used sanitary items. Although the facts for each individual differed, the common theme was that they lived in assisted housing, with or without a foster parent. In each case, these people were apparently leading happy lives under these arrangements, and courts had found that it was in their best interest that the regimes continued. But in each case, it was clear that these people would have been prevented from leaving their residences, if they had tried to do so.The question for the Court was whether these citizens were being deprived of their liberty. Liberty is an objective state, meaning that one is free from external constraint, and does not depend on one’s disposition to exploit one’s freedom; nor is it diminished by one’s lack of capacity.

If they were so deprived, then from time to time, the authorities would need to scrutinise their situation, to ensure that the constraints on their liberty were necessary; were proportionate to the likelihood and seriousness of harm that would befall them if their liberty was not restricted; and that no lesser restrictions could keep them safe.

If they were not being deprived of their liberty, then there would be no need for the State to scrutinise their living arrangements in this respect.

In answering these questions, the Court reminded us of why the safeguards are necessary. It found that it is ‘…axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else’. In this way, the Court held that ‘liberty’ means the same thing to an adult who is (for reasons of disability, unable to take advantage of it) as it does for everyone else.

From this it can be seen that our courts are well aware of the potential threat of a coercive State (for instance, in the form of the local authority or NHS) of removing the liberty of patients whose capacity is impaired, and who cannot speak for themselves. The DOLS process, although imperfect, is at present the only automatic mechanism to guard against the possibility of unwarranted detention of incapacitated patients.

In the second bulletin on capacity, the following will be discussed: Establishing advanced decisions to influence treatment; the effect on capacity of overwhelming fear; and the concepts of ‘best interests’ and ‘futility’.

  1. P v Cheshire West and Chester Council and another; P&Q Surrey Co Council [2014] UKSC 19