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3.149Everyone is liable to an incapacitated person for criminal acts such as ill-treatment or neglect and for negligent treatment or care. MCA 2005 s5 does not affect these liabilities.
1MCA 2005 s5(3).3.150Instead, it provides that a professional or non-professional carer is regarded as having the person’s consent for any treatment or care given to them if five conditions are satisfied.
3.151Because of this presumed consent, the legal effect is that the carer need not worry that technically he or she may be committing an assault because the person concerned lacks capacity to consent to the operation, treatment or piece of care being provided.
2MCA 2005 s5(2). The person who does the act (D) does not incur any liability in relation to the act that he would not have incurred if P had had capacity to consent in relation to the matter, and had consented to D’s doing the act. Likewise, provided that the conditions are satisfied, the carer is protected even if later it is held that a person who objected to care or treatment did in fact have capacity at the time and a right to refuse it.
3.152The essential thrust of the provision is that those who care for people without capacity should be protected from legal liability provided that the care is reasonably believed to be in the person’s best interests and is performed without negligence.
3.153Because section 5 is a ‘freedom from legal liability’ provision, it is of a different kind to those sections of the MHA 1983 which authorise treatment or care without consent but which require applications and medical recommendations to be completed before the power arises.
3.154There are no statutory forms to complete under section 5, although in non-routine situations it is sensible to keep some kind of written record of the decision. Rather, the section is there to be invoked and relied on as a defence if the carer is later challenged and it is suggested that they are legally liable to the incapacitated person for their act.
THE FIVE SECTION 5 CONDITIONS |
1 | The act is one undertaken ‘in connection with’ another person’s care or treatment. | •This embraces nursing, medical and dental treatment, speech and language therapy, psychological interventions, social work, community care and also personal care such as assistance with washing, dressing, personal hygiene and feeding. •The phrase ‘in connection with’ indicates that section 5 also covers diagnostic examinations and tests, assessment procedures, taking a person to see their doctor, arranging the provision of a care service, etc. |
2 | The person doing it takes reasonable steps to establish whether the recipient has capacity. | Unless the carer has given it to the lawyers ‘on a plate’, they will have taken reasonable steps to establish lack of capacity – which does not necessarily require a capacity assessment – and reasonably believe that the person lacks capacity to make this particular treatment or care decision for themselves. |
3 | The person reasonably believes that the recipient lacks capacity. |
4 | The person reasonably believes that it will be in their best interests for the act to be done. | •This involves applying the best interests considerations in section 4. •More than one thing can reasonably be believed and the level of protection to a carer is generous to that extent. |
5 | If the person uses restraint, he or she reasonably believes both that it is necessary to do the act in order to prevent harm to the person and that the act is a proportionate response to the likelihood of their suffering harm and the seriousness of that harm. | •The Act states that for these purposes one person restrains another if he or she a) uses, or threatens to use, force to secure the doing of an act which he or she resists, or b) restricts their liberty of movement, whether or not they resist. •Restricting someone’s liberty or using force is always undesirable. If used to give care or treatment, the requirement here is essentially that the care or treatment is necessary and does more good than the restraint does harm; it is the lesser of two evils. |
3.155When providing care or treatment, it may seem tempting to seek to rely on section 5 in all situations, and thereby to avoid the complexities of advance decisions, LPAs and court orders.
3.156This would be a mistake. For example, the Act provides that:
•nothing in section 5 affects the operation of sections 24–26 (advance decisions to refuse treatment);
3MCA 2005 s5(4). and that
•section 5 does not authorise a person to do an act which conflicts with a decision properly made within the scope of his authority by a donee of a lasting power of attorney or a deputy appointed by the court.
4MCA 2005 s6(6). This prohibition does not prevent a person providing life-sustaining treatment, or doing any act which he or she reasonably believes to be necessary to prevent a serious deterioration in P’s condition, while a decision as respects any relevant issue is sought from the court: see MCA 2005 s6(7). 3.157It is not possible therefore simply to leap to section 5 as a way around having to learn the framework. The first step is to consider whether the person made an applicable advance decision or LPA. Only if they did not provide for this situation, or their advance decision or LPA is irrelevant or invalid, does one move on to considering the need for a court application or relying on section 5.
3.158Furthermore, one cannot reasonably believe that it is in the person’s best interests to delay going to court and to continue to provide the care or treatment under section 5 if there is a significant disagreement about whether it is in the person’s best interests which cannot be resolved.