26 May 2021
Not reviewed after the date of publication
Do the ambulance service have the same powers as the police regarding a person who lacks capacity under the Mental Capacity Act 2005?
We are often contacted by the ambulance service who request police assistance when for example an intoxicated and requires non-life sustaining treatment but is refusing to co-operate.
The question posed does not appear to be definitively provided for in the legislation, however, please see the Mental Capacity Act 2005 Code of Practice. Amongst other parties, it states that the Code of Practice applies to anyone who is:
acting in a professional capacity for, or in relation to, a person who lacks capacity.
being paid for acts for or in relation to a person who lacks capacity.
Therefore, it is our opinion that this captures ambulance service staff and as such they would have the same powers as the police under the Mental Capacity Act 2005 and would have statutory protection against liability for certain acts done in connection with the care or treatment of another person as long as they complied with the requirements of the legislation, have formed a reasonable belief as to P’s lack of capacity and acted in the best interests of P.
Section 6 of the Mental Capacity Act 2005 specifies the applicable rules concerning acts intended to restrain persons who lack capacity in order to prevent any harm. This sets limits to potential liability under section 5. Restraint is permitted only when the person using it reasonably believes it is necessary to prevent harm to P. The restraint used must be proportionate both to the likelihood of the harm and the seriousness of the harm. It follows that the minimum level of restraint must be used; if the risk of harm diminishes, the restraint used must be reduced. It should be remembered that the principles in section 1 also apply when restraint is proposed. The principle of the “least restrictive option” in section 1(6) is significant.
Although, the ambulance staff may be afforded the same powers under the Act, depending on the circumstances, it may be that in some situations the ambulance staff believe they require the support of police officers, who have specific training and equipment, to achieve a successful outcome with P.
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