Our Capacity for Assessing Capacity – YMCA?

Our Capacity for Assessing Capacity – YMCA?

Mr Neil Orton, FPHC Member, a paramedic with West Midlands Ambulance Service and former teacher, reflects on the challenges paramedics face in assessing mental health crises. Using a recent case involving a suicidal patient, Neil explores the complexities of determining mental capacity and balancing patient autonomy with the duty of care. He questions the adequacy of existing tools and protocols in addressing these intricate situations.

Neil Orton is a paramedic with West Midlands Ambulance Service, having retrained in 2015 after 18 years as a primary school teacher. He still spends odd days at the chalk face as a supply teacher in rural Herefordshire. Neil is an aspiring critical care paramedic/advanced clinical practitioner and has a special interest in languages, often employing them to assist in attending a wider migrant population locally.

When I first signed up to ‘save lives,’ I thought we would be dealing with RTCs, stabbings, agricultural accidents and be on the go 24/7. The modern reality of a paramedic’s workload is somewhat different. Although we are highly skilled at dealing with pre-hospital acute issues: cardiac arrest, chainsaw trauma, drowning or hanging (among many others) and have a rich history of dealing with urgent care too; where we perhaps are not so adept is dealing with mental health – something we see more and more of every day.

We aim to work in the best interests of our patients but are often under resourced and seem to be constrained by various systems and protocols that can be uniquely centre/geographically specific. Anecdotally, the police seem to think we are the only ones who can assess mental capacity and we, in turn, lean heavily on the police to use the powers of sectioning when we possibly could deliver a more robust outcome ourselves.  This situation creates many jobs where we often reflect in detail on our practice. Did we do no harm, respect the patient’s decisions, benefit the patient and balance benefits against risks/harm?

I dealt with such a case recently in a young adult and have been pondering on it ever since. I shall give a brief outline of the case with the view of providing a discussion point over how clinicians assess capacity and the resultant impact on the rights of the patient.

A young adult had been discharged from hospital following treatment for an overdose a few days before we (double paramedic crew) were sent to him. A psychologist treating the patient called 999, following a telephone call he was concerned about. The patient had taken approximately 100mg/Kg of a common analgesic, intending to end his life (Toxbase lists 75mg/Kg as the toxic threshold).

The patient allowed us to enter the property for a brief chat but stated he did not want an ambulance and that he didn’t call us. His IPAP suicide risk assessment measured high risk. He said he was disappointed the overdose hadn’t killed him and that he would next try asphyxiation. He had other ideas lined up if this failed. Observations were unremarkable, except a HR of 140+. Given the red flags (tachycardia, intentional overdose, recent discharge for overdosing on the same drug, diary evidence of suicidal thoughts, a well-documented MH history and a difficult domestic situation), hospital conveyance was advised. Medical treatment pre-hospitally was limited as Charcodote was contraindicated because of vomiting.

I used the WMAS issue Mental Capacity Act aide memoire which includes a Diagnostic/Function flow chart from the MCA2005 to assist in assessing capacity. It showed that this patient, at this exact moment, had capacity. My crew mate disagreed on the basis that attempting to kill oneself is not the act of one whose capacity is intact. After discussion with the patient about our predicament, I sought advice from the case worker attached to the patient; she also spoke with him. The case worker argued that the patient lacked capacity, even though he was lucid. I questioned the decision so she asked the advice of the MH lead at the local hospital. She, in turn, argued that the patient could not possibly have capacity as this overdose was part of one, ongoing episode of depression and suicidal intent (given the recent discharge for similar events). Although I was unsure about the legality of following this line of care, I did recognise that this patient would be at significant risk of death if we left him at home. With limited mental health training and experience, I deferred to my specialist colleagues and informed the patient that I would like to take him to hospital and that, as he did not consent, I would have no choice but to remove him under Section 5 Mental Capacity Act 2005; he came without incident but insisted he would refuse all treatment and would abscond at the first opportunity.

Under the MCA2005, clinicians must take reasonable steps…’ to establish whether or not a patient lacks capacity. A service-issue MCA aide memoire includes the Diagnostic test to decide whether an impairment of mind or brain exists and the Function test to ascertain whether a patient can understand, retain, weigh up and communicate information. In the moment, on scene, a patient can seem lucid, articulate and may be able to rationalise current and previous behaviours. Using the blunt tools given to us, a patient may be discharged at scene on the basis that capacity exists and any decision, however unpopular or unwise it may be deemed, is being taken with full knowledge and understanding of the risk and ramifications. ‘When assessing capacity, practitioners must take account of the principle enshrined in section 1(4) of the Mental Capacity Act 2005 and not assume that the person lacks capacity because they have made a decision that the practitioner perceives as risky or unwise.’ (NICE 2018).

In the case highlighted above, we had differing opinions so we sought more experienced help; indeed, the Mental Capacity Act 2005 in Practice states that, 'Where a decision has serious consequences or where capacity assessment is contentious – it is appropriate to involve specialist professionals…’ (DoH 2007).

My question I suppose surrounds the deeper assessment of a person’s capacity beyond the moment. Does a person have a right to kill him/herself, knowing that their actions will result in death and that this will also affect friends and family or dependants? Does a person have the right to choose how he or she dies? How does one respect a person’s autonomy whilst protecting a vulnerable patient?

Similar cases exist where patients have made a living will to state that no treatment should be given following a suicide attempt. Norfolk and Norwich University Hospital dealt with one such case in 2007, where treatment for antifreeze poisoning was withheld (following legal advice) in the presence of a living will. A consultant psychiatrist stated that the patient had mental capacity to decide this course of action at the time of writing. At inquest, the Norfolk Coroner endorsed the decision made by the hospital. In the absence of a living will but in the presence of a seemingly rational person stating that suicide is intended, where does a clinician focus his or her thinking? Should one begin to calculate drug interactions or side effects of regular medications? What neurological or psychological impact does cessation of long term testosterone have in a transgender patient, for example?

A patient suffering depression may appear distressed or even detached. If distressed, it could be argued that the patient lacks capacity owing to the inability to think clearly enough to weigh up information. If the patient were detached, perhaps capacity could be questioned because the patient is unable to effectively communicate a decision. The difficulty arises when a patient is able to speak calmly, rationally and can explain all of the risks inherent with an overdose and the resultant impact on friends and family; therefore passing the Diagnostic and Function tests; a cogent patient is potentially able to automatically circumvent capacity assessment tools. A clinician’s duty of care is at risk of compromise in such a situation. The University of Manchester sponsored a research study in 2016, entitled ‘Advance decisions, mental capacity, and suicidal behaviour: developing guidance for clinicians. Conclusions drawn indicate further uncertainty in this field. A definitive answer applied to suicide in the absence of advance directives is arguably further off still.

Experience teaches us many things, yet new challenges continue to appear and trip us up when we perhaps become complacent, believing we have achieved a level of comfort and competence. I remain unconvinced we did the right thing by our patient but I am unsure what alternative there was at the time.

Mental capacity assessment remains an imprecise science in the pre-hospital emergency environment, hindered further by inconsistent specialist provision out-of-hours. I, for one, shall continue to work in what I believe to be the best interests of my patients; I won’t always get it right but, with one eye on the evidence base and the law, I shall try… try… try again.


My thanks to Dr Leah Quinlivan: Cpsychol, Research Fellow at the University of Manchester, for her support in sourcing research study findings.

Neil Orton, Paramedic, BA (Hons) FdSc MCPara

The content above may contain the personal or professional views and opinions of the author(s) and does not necessarily reflect the official policy or position of the RCSEd or the FPHC. Further information can be found in the website Terms and Conditions.

back to top of page