These are not new themes or new tensions in human life. In the Old Testament, the Jewish Torah and reflected in the Koran, a few short words echo down the centuries.
Ecclesiastes Chapter 15: Verse 20. (attributed to Solomon in 3rd century BC)
“He never commanded anyone to be godless, he has given no-one permission to sin”.
It is that last phrase “He has given no-one permission to sin” which, when given a modern translation, is our starting point – transferred then into the modern UK situation: “parliament has given no-one the right to act illegally”
The Authorities do not sanction illegal activity.
(with the possible exception of the secret services, MI5 or 6)
Consent between individuals does permit some otherwise illegal activity viz assault, eg rugby, where teams permit what would otherwise be assaults providing they are within the rules. Outwith the rules there is the SinBin or if serious enough, the police.
Even so, some activities even though carried out by consenting adults still remain illegal eg. Acts of mutilation between individuals. Consent does not necessarily permit some illegal activities.
How can assault be legal involving non consenting adult?
Common Law provides a host of circumstances where technical assault deemed justifiable. Usually involving principle of protection of self or others.
Such actions may not just be tolerated but approved, although not required. An example would be thwarting others involved in a criminal act – but force must be reasonable. A citizen’s arrest is provided. A more controversial example is the prevention of suicide.
Let us go back to the beginning – Solomon and Wisdom. “Let Wisdom Guide” is the motto of the Royal College of Psychiatrists. We are not born with Wisdom, therefore Guiding essentially must be done by the elderly. This is linked to Duty of Care which again is linked to protection of the vulnerable ie non consenting adults and children.
Solomon realised that Wisdom was not eternal, it varied from one generation to the next. He concluded that he or she who was wise with regard to their decisions was most liable to be happy. Well what if you were not wise, say actually, unwise, what then?
Well, I suppose, you were less likely to be happy. In fact, you might be unhappy. And if you had freedom of choice, and chose not to be wise then you would yourself be responsible for your own state. This is what the Mental Capacity Act offers.
The assumption is that that situation pertains to people who can consent, are capable perhaps of being wise. What about those who cannot, the unwise, who can’t consent.
These are those who have been said to lack capacity.
What is capacity? Is it wisdom? I don’t think so. Wisdom is a quality which may vary from generation to generation but hardly from one moment to another, from one situation to the next! Wisdom is the result of experience. Indeed, capacity involves the possible disregard of wisdom, and the actioning of an unwise outcome.
So what is capacity, a legal concept, when translated into a psychological or psychiatric equivalent?
I think it is “Grasp”. Something more than understanding. An ability not just to understand a situation, but to grab hold of it in a masterful fashion, examine it, test it and in a competent fashion decide what to do about it in his own interest – or that of others.
And I think that ii is in that last phrase, “or that of others” that the rationale of allowing an unwise course of action to be, nevertheless, a component of capacity is in itself a very wise permission. It is not a permission to act illegally but to act altruistically, or at least with intentions other than one’s own immediate interests.
However, this clause in the MCA does conflict with the Duty of Care, which as we have seen is closely linked with wise actions and the protection of the vulnerable, or non consenting adults.
Some professions espouse determinedly the Duty of Care as being paramount amongst their philosophies and their core raison d’etres. The nursing profession, emanating as it did from Holy Orders, probably is that paramount example. It is not to be condemned for this approach. After all, it is hundreds, if not, thousands of years old. Those who are indeed of such a profession, rely upon this attitude in all their vulnerability. One might speculate upon the future of the profession if it loses it’s way to such an extent that the Duty of Care is lost. You may consider recent examples of this as indicative of others yet to come. I instance Winterbourne in the learning disability field, and Staffordshire more generally.
Other professions hold that freedom of choice is paramount and must be made available to individuals if at all possible. Those that need protection should get it, but others should be free to make their own decisions, even if we don’t approve of their plans. Who are we to make such judgements for those who have capacity. But we have to do it for those who do not have capacity: the Best Interest Decision.
A word about Best Interest Decisions. One makes a Best Interest decision on the basis of recommending a course of action of which an incapacitous individual would approve. What is the most safe assumption as to what that might be?
I think it is Quality of Life. There is, perhaps, some smoke and mirrors about this, but some attempt can be made to assess its quality. If as a result of a Best Interest decision, Quality of Life can be seen to improve, then it is reasonable to presume that the individual would have made that choice. We cannot make unwise decisions for those without capacity, it is only those who do have capacity in this regard that can make unwise decisions for themselves.
If the Quality of Life goes down following a Best Interest decision, one must ask oneself whether it would have been reduced even more had the decision been reversed. This is clearly relevant in inexorably progressive conditions.
Social workers largely operate the Mental Capacity Act but could lose public sympathy if they remove freedom of choice from those the public consider should keep it or alternatively fail to prevent individuals from making disastrous and destructive decisions out of freedom of choice. I remind you of the previous difficult example: would you stop somebody in the act of committing suicide?
What has all this got to do with the permissible extent of restraint of people with a learning disability?
No one can legitimise illegal acts. This is a truism, but it needs restating.The assault of adults under common law has established that it is justifiable to restrain such an individual for the protection of himself or others.
I believe that the MCA cannot allow any thing more than has been detailed in case law. It goes to describe in more detail what the circumstances are and is producing its own body of case law. My essential position, with which you may well disagree, is that nothing much has changed.
In the Mental Health Act, something significant did occur in 1983 when the 1959 Act was revised.
Section 141 was revoked. This was the so-called Good Faith clause which stated that if an individual, in pursuit of procedures under the Act, should be in error, if he were acting in Good Faith, an appellant would require the permission of the High Court to proceed.
This clause gave protection from litigation except in the most serious cases. But viewed differently it was putting some individuals arguably above the Law by restricting the public right to challenge them. Again it can be seen as a cohort of the Duty of Care, Let Wisdom Guide moral position.
So what is left? Good Faith has gone.
Let Wisdom Guide has gone.
Freedom of Choice and the Mental Capacity Act remain.
What happens to Duty of Care?
We need it. We certainly need it.
But it may only survive under the MHA and the MCA. We may have a statutory Duty of Care under the MHA and the MCA. But we may not have it elsewhere.
When a request for a Deprivation Of Liberty Safeguard is made on the grounds of Duty of Care it must surely be considered seriously.
What about restraint for an invasive medical procedure, such as venepuncture? Perhaps necessary for intensive treatment of mental illness? Or perhaps a blood screen every two years for antipsychotics. The drugs and their necessary investigations may be the passport to community care for those individuals. Are you going to keep them in hospital, perhaps under MHA or take a chance in the community under MCA?
Again how much restraint can a DOLS sanction in the community before a patient goes into hospital? Holds may require 4 or 5 people – is that relevant? There may be 5 per day – is that relevant?
What if the patient is mentally ill?
What if the client is clearly not mentally I’ll?
One judge in Chambers indicated that in resolving the dilemma that often arises as to whether to use the Mental Health Act or the Mental Capacity Act in effecting a restraint or a restriction in the Community, one should consider whether the main component of the problem was medical or social. If there was a mental illness or significant psychiatric medication, then it was more appropriate to use the MHA if at all possible. In the absence of such criteria, the MCA was to be preferred. Note this is a recommendation which is not necessarily based on severity of circumstance, not, as it were a ‘trumping’ of the MCA by the MHA. Why did we need a judge to tell us that?
In effecting restraints and restrictions, not only are people with LD vulnerable but so also are staff. Previously reliant on Good Faith, the Duty of Care and the Common Law, they have been reliant, predominately in the Health Sector, on the MHA. Now in the Social Sector they rely upon the MCA to protect them, the staff, as well as the client.
The guidelines will always be that children and vulnerable adults come first and interventions upon those without capacity must always be in their own interests.
Trouble will come when restraints and restrictions are primarily used for the protection of others. I hear “double-speak’ used in such circumstances. “It’s in his best interest not to assault the other resident”.
Solomon was reputed to be wise. Nowadays, it is not enough because the stringent requirements of Wisdom do not allow for the vagaries of Freedom of Choice.
We must beware we do not throw the baby out with the bath water. Duty of Care, I’ll-defined but centuries old, remains a bastion for the defenseless and the vulnerable. It’s pursuit can produce the most altruistic of human behaviours and it’s dereliction the most bestial.
The Mental Capacity Act should support the Duty of Care with its DOLS procedures.
This quite clearly can be seen to be appropriate for the protection of the vulnerable individual. What is not so clear is its use to protect others when individuals without various capacities may not be so much a danger to themselves as a danger to others.
Can one legally treat an individual who cannot give informed consent with risky, off-license medication, with restraint and restrictions and invasive medical interventions for behaviour dangerous to others on a Deprivation of Liberty Safeguard? I am unhappy about this.
I do not think I have the right to do that. As far as I understand it’s, a DOLs is reserved for the protection of an individual not those around him or her. As I mentioned before, it is sophistry to say it is for his or her own protection to prevent assault on others by assaulting that individual.
The MHA, though, permits treatment of an individual for the protection of others, and, indeed, under Section 3, they have a right to such treatment.
Hence, I am unwilling to treat in these circumstances under a DOLs but insist, as far as I can, on a MHA Section. Theoretically, this should be true for all treatments, but particularly so for risky, off-license treatments requiring invasive procedures.
The evolving situation regarding restraints and restrictions of people with a learning disability who lack various capacities will surely come under increasing scrutiny. Practitioners involved in the MCA and the MHA will need to be flexible and tolerant of the philosophical and legal stance taken by various professions. A whole range of approaches is required and no single obsession is going to be invariably appropriate.
Stephen Read. 6 March 2014.