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Do we recognise the capacity and

right to make an eccentric
decision?
The incident I am reflecting upon, has made me stop and think quite hard
regarding the Mental Capacity Act 2005 and its amendments and how I, as an
ambulance clinician need to improve my understanding and learning in this field.
I have decided to utilise the model of reflection as suggested by Gibbs (1998).
This will allow me to present my recollection and interpretation with regards to
the legal ramifications of the event and how I would potentially modify my
actions and decision making in the future.

What happened?

Late in the evening on a weekday, we attended a patient found seated at a bus

stop, covered in blood with a substantial haematoma and laceration to the
occipital area of the cranium. There was also an area of pavement nearby
covered in blood. He appeared mildly ethanolic but scored GCS 15 and claimed
that he had merely stumbled and fallen to sustain the injury. We explained the
severity of the injury to him, but he was adamant and quite coherent that he
would not allow us to treat him and intended to enter his home which was
nearby. He was able to stand unaided though slightly unsteady in his gait and
made attempts to leave us and the scene though we gently corralled him to buy
time for the Police to arrive. He repeatedly refused to enter the ambulance for
assessment and it became apparent with further conversation that his story of
how he received the injury was fiction for some reason.

The Police arrived as the patient had reached his front door. They were direct in
their approach to tell the patient to submit to treatment and conveyance to
hospital or risk arrest; with this aid we were able to escort the patient onto the
ambulance where we established the nature of the visible injury. The patient
denied any neck pain but refused to remove his clothing for a head to toe
examination. En route, it became apparent that the patient had been assaulted
because of an argument involving a substantial sum of money. The patient did
not want our interference due to his intent to deal with the issue personally at a

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later date. The conversation suggested our patient would resort to violence
against the assailant.

What was I thinking and feeling?

My initial concerns were in concert with the other EMT staff on scene: The facts
the patient had a head injury and was unsteady on his feet could suggest
serious, or potentially life threatening trauma. The patient’s mild inebriation and
deceits made it awkward to establish a lack of capacity; but I think our
enthusiasm to act with the best interests of a patient who lacks capacity, caused
us to ignore several very important considerations in a variety of laws which I will
present below.

At the time I felt that we should enforce removal against the patient’s wishes
due to the potential life threatening nature of the injury. The refusals of our
patient didn’t really suggest a lack of capacity, so we resorted to police
intervention as an alternative method of care.

What was good and bad about the experience?

With hindsight, I’m prepared to say the only good thing about this incident is
that it has provoked me to seriously consider the frequent abuse and misuse of
the Law perpetrated by the emergency services. Despite the fact that in these
cases, the actions and decisions are made in the perceived best interests of the
patient, the law is very specific.

In my opinion we acted in a paternalistic manner toward this patient who, in my

revised opinion had capacity to make the decision, decided to refuse our aid.

This eccentric decision making is defended in law as illustrated by Per Lord Goff
in Airedale NHS Trust v Bland [1993] AC 789.

"It is established that the principle of self-determination requires that

respect must be given to the wishes of the patient, so that, if an adult
patient of sound mind refuses, however unreasonably, to consent to
treatment or care by which his life would or might be prolonged, the

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doctors responsible for his care must give effect to his wishes,
even....though they do not consider it to be in his best interests to do
so...."

The Police frequently suggest to a patient that being capable to make a decision
to refuse medical aid means he/she is well enough to be arrested for drunk and
disorderly conduct; but looking further at the law, it doesn’t work in our favour in
this case. The Police, under their guidelines in the Police and Criminal Evidence
Act (1984 amended by SOCA) would have no real power of restraint or arrest in
this case. When the guidelines are followed they would have found the patient
capable of making a (eccentric) decision and would only have powers of arrest if
they suspect the individual of being responsible for or about to commit an
indictable offence (felony rather than misdemeanour) and in order to prevent
public disorder. The patient had reached his front door in his intent to go home. I
cannot see any potential public disorder at that point. They could restrain and
force treatment on the patient if found to be lacking in capacity under the 2005
Act but this was not the case.

What sense can I make from the situation?

Looking into the statute law of the Mental Capacity Act 2005, the most visible
issue to tackle is mentioned twice.

From Section 2: People who lack capacity

“(3) A lack of capacity cannot be established merely by reference to-.

(b) A condition of his, or an aspect of his behaviour, which might lead

others to make unjustified assumptions about his capacity. “

From Section 4: Best Interests

“(1) In determining for the purposes of this Act what is in a person's best
interests, the person making the determination must not make it merely
on the basis of-.

(b) A condition of his, or an aspect of his behaviour, which might lead

others to make unjustified assumptions about what might be in his best
interests.”

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Our patient had been drinking and did not wish to disclose information. Our
approach as clinicians to a very obvious traumatic case pushes us towards a
snap decision in our primary survey and it is difficult to extricate our decision
making from the path we try to follow. To try and look at these matters with the
law prominent is quite awkward and not always feasible.

We have in effect ignored an autonomous (eccentric) decision. Cases such as B

(Adult, refusal of medical treatment) [2002] 2 All ER 449 prove a competent
patient has the right to refuse treatment and their refusal must be respected,
even if it will result in their death. These legal extremes do apply to our practice,
whether as a technician or as a paramedic.

The involvement of the police does not absolve our decision making; in some
respects it compounds our breach as we have gone to lengths to force the
patient to receive treatment against their will.

In this case the issue is really that of a very brief restriction of liberty (i.e. that of
the transportation to the hospital) as such so long as the patient was able to
discharge himself when there, any breach of the statue here would be minor at
worst. As most patients can freely walk out of hospitals and frequently do, the
term de minimis non curat lex comes to mind if it were presented in court.

The strongest defence for our actions is found within the Mental Capacity Act
2005

From Section 2: People who lack capacity

“(4) In proceedings under this Act or any other enactment, any question
whether a person lacks capacity within the meaning of this Act must be
decided on the balance of probabilities.”

Balance of probabilities - this gives a reasonable legal defence to the decision,

that is was possible, given the evidence the man was incapable of making a
decision with full capacity. However my personal opinion directed by a previous
background as an officer of the County Court System is that I would be loathe to
consider it a plausible method to justify my ignorance.

If it arose again, what would I do?

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This situation arises frequently. I think arming myself with a bit more knowledge
of the Acts and previous case law can only be a prudent thing. Unlike our
medical guidelines which change frequently, case law is an absolute decision
which can and should be applied in our practice where applicable. I believe a
direct statement to the police in such a case explaining that the decision appears
to be autonomous but eccentric will be very useful; as they are guided directly in
this eventuality.

These borderline decisions regarding a patient’s capacity should not be made in

isolation. I believe that any eccentric decision, made by a patient to a clinician
should be validated by that clinician’s management and if possible, the Police.

I am currently browsing the code of practice for the Mental Capacity Act.

Word count: 1299 (Excluding indented quotes)

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References
Mental Capacity Act (2005) Code of Practice (Lord Chancellor 2007)
London HMSO

NPIA (National Policing Improvement Agency) (2010)

Briefing note on applying the Mental Capacity Act 2005
NPIA

Police and Criminal Evidence Act (1984 amended by SOCA)

London HMSO

Case Law

B (Adult, refusal of medical treatment) [2002] 2 All ER 449

Per Lord Goff in Airedale NHS Trust v Bland [1993] AC 789.

Further bibliography and resources

ACPO (2010)
Guidance on Responding to People with Mental Ill Health or Learning
Disabilities
NPIA

http://www.ethics-network.org.uk/ethical-issues/conscent/legal-considerations