HoldTheLine

Evaluating Ethics

When I read the narratives that unfolded during incidents-gone-wrong, I often find myself thinking “been there – done that – lucky enough that it didn’t go wrong for me.” But not always – I’ve also had an incident go badly wrong and I’ve been left wondering how the hell it was me that became responsible for having to weigh up a fairly blunt set of options to a complex situation that could have been prevented from occurring in the first place. I’ll properly tell that story only many years from now.

FRANCIS DUFFY

Meanwhile, I read about incidents like that of mental health nurse Francis DUFFY – the Independent Police Complaints Commission have undertaken an investigation into “allegations that officers failed to attend an address to detain him under the Mental Health Act” in February of this year.  Two days later Mr DUFFY was found dead in his own flat after further concerns were raised.  Of course, the punchline of this incident can be quickly reached: officers had no power whatsoever to detain him under the Mental Health Act because in was in his own house – and yet there was still a misconduct investigation into a control room sergeant’s decision-making, albeit she was cleared of any wrong-doing.

Paramedics had attended Mr DUFFY’s home address on the 4th February and were there for several hours attending to various concerns whilst he was heavily intoxicated. The attending paramedic formed a view that he needed to be detained for his own safety yet made no attempt to contact the mental health trust crisis team. She stated at the inquest into Mr DUFFY’s death that in nineteen years she had become accustomed to them saying they would not attend someone who was so heavily affected by alcohol. When I read of that remark, I admit to thinking, “Fair enough!”

I fully appreciate why such doubts would emerge, but I also know why it’s regrettable we don’t push as far as we can. I’ve seen for myself disengagement by mental health professionals and organisations from those of us who are intoxicated whilst vulnerable because of mental distress and it’s not unreasonable to assume that the reaction you’ve had the first hundred times you tried to get such support will be the reaction you get when you call again. But we all know that it can create the perception of indifference if efforts aren’t made to do the right thing. The paramedic called for the police and according to the report in local press made “a request to have him detained for his own safety.”

A disclaimer here – the article I’m responding to does not explicitly state whether Mr DUFFY was known to mental health services and / or in receipt of care from them. Reading between the lines of the Coroner’s recommendations, I am assuming he was otherwise his would not be a case that would need clarification about the crisis team’s role.

POLICE POWERS IN PRIVATE PREMISES

So here we go again – police officers have no powers in someone’s private home unless there is a criminal offence, a Breach of the Queen’s Peace or circumstances where the Mental Capacity Act could be applied to a literally life-threatening situation. Accepting completely that I cannot find anything else on this incident beyond the local media coverage which I’ve linked, above – that news piece reads in such a way as to mean it was always obvious there would be difficulty in an approach that saw the police as the solution to a problem. Whilst he was very intoxicated, that’s not illegal in your own home.

Mr DUFFY had rung the ambulance service threatening to kill himself. It was latest in a long series of 999 calls that had seen him prosecuted for an offence under the Telecommunications Act and he was awaiting an appearance at the local Magistrates’ Court. The paramedic found him intoxicated that day and a post-mortem blood test showed that he was over five times the legal limit for driving. Nothing in the article jumped out at me to suggest there was anything there the police could do that a paramedic couldn’t.

This case shows a particular problem that was further compounded by a decision not to contact the mental health crisis team. We know from the Sessay v SLAM and the Commissioner case in 2010 that in situations where detention under the Act is considered necessary in a private premises, the Mental Health Act offers ‘a full suite of options’ – the judge in Sessay made it clear that ‘there is no lacuna’ in the legislative framework.

So there – it must be true!?

MENTAL HEALTH, MENTAL CAPACITY AND ALCOHOL

What about the alcohol consumption? Well, if I had a pound for every time I’ve heard the line “you can’t assess someone under the Mental Health Act who is under the influence of alcohol”, I’d be stressing considerably less than I am about the bill to get my car through its MOT just prior to Christmas.

Chapter Four of the Code of Practice to the Mental Health Act is often cited in these discussions, but even the Code doesn’t preclude assessment in urgent circumstances. If someone were intoxicated whilst detained under section 136 MHA, then by all means let alcohol wear off if someone is safely and legally detained somewhere. But in this situation, Mr DUFFY was in his own home.

The question has been asked about whether such an amount of alcohol could affect his capacity to take his own decisions – and in principle, it could. Whether that could have been relevant would depend upon some particular specifics that aren’t covered in the article. However, we do know that even if the paramedic had been able to declare that Mr DUFFY lacked capacity to refuse medical treatment, it would have still required additional concerns to allow the police to act on her behalf by removing him ‘for his own safety’. You will remember that section 4B of the MCA requires that in order to deprive someone of their liberty it must be considered the least restrictive way of acting in someone’s best interests and “necessary to provide a life-sustaining intervention” or to do “a vital act to prevent a serious deterioration in their condition.” Whether or not these criteria were met, I cannot say and I make no judgement either way.

I can imagine it both ways ’round and I genuine wonder about the sense in which the paramedic thought Mr DUFFY’s safety was compromised – the word ‘safety’ as opposed to ‘health’ inclines me to think that there were no immediate thoughts about life-threatening risks to his physical health, if we even accept a dichotomy between the ‘mental’ and the ‘physical’.  Either way, we do know that if urgent assessment or detention under the Mental Health Act were required, then it would require an AMHP and Doctor to attend the premises. That would be accessed through the crisis team that the paramedic didn’t contact – whilst I can understand why she didn’t, it probably should have been something that was tried.

What we can safely say, taking the description of the incident at face value, is that the police were never going to be the solution in this incident because they don’t have relevant legal powers. This does show, however, the ongoing assumption that the police can coerce people and keep them safe in all the circumstances where we might want them to be able to do so.

Well, we can’t! – and that is actually just exactly how your Parliament wants it. It has always been my view that the law we have is adequate only for services that are not configured as our’s are – we either need to change our services or we need to change our laws. The latter is not going to happen anytime soon and that only leaves one option – which will need to be paid for!

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The Mental Health Cop blog

Badgewon the ConnectedCOPS ‘Top Cop’ Award for leveraging social media in policing.
won the Digital Media Award from the UK’s leading mental health charity, Mind
– won a World of Mentalists #TWIMAward for the best in mental health blogs

ccawards2013 was highlighted by the Independent Commission on Policing & Mental Health
– was referenced in the UK Parliamentary debate on Policing & Mental Health
was commended by the Home Affairs Select Committee of the UK Parliament.

Tough Decisions Ahead Road Sign

Consequentialism

This post just seeks to ram home again what’s already known – there’s nothing new to see here, but we’re now one week on from the custody debacle in Devon which saw a young woman detained for two days whilst mental health services struggled to find a bed into which to admit her.  We know she was eventually admitted to an adult psychiatric bed, which is less than ideal, and we don’t know whether she remains there one week on.  What I do know is I’ve had several queries this week from custody officers and various forces’ mental health leads about this situation:  Someone was brought into custody for reasons originally unconnected to the Mental Health Act, they have been assessed as being in need of admission to hospital under the Act, but no bed is forthcoming.  The precise dilemma is: how do you manage the situation in custody if the delay in accessing the bed is protracted and beyond the timescales which normally apply to the police holding on to people?

There are a few scenarios -

  • Someone was detained under s135/6 of the Mental Health Act – but the 72hr authority to hold them in a Place of Safety is now running out.
  • Someone was arrested after an allegation of an offence – the legal decision around that allegation is it will not lead to a charge being brought now and the person will be released by virtue of s34(2) PACE.  They should be diverted under the Act into hospital.
  • Someone was arrested to prevent a Breach of the Peace – for those who are unfamiliar with what happens here, officers will keep determining whilst the person remains in custody whether a Breach of the Peace is still anticipated and they will either, release the person once it is no longer apprehended, OR they will place that person in front of a Magistrate once they are available.  So what happens if the breach is no longer feared OR if the Magistrate becomes available.
  • Contemplate yourself as the custody sergeant – knowing that the AMHP has not yet made an application and the Doctor who led the assessment is struggling to find a bed.  Even the duty inspector may have had a word on your behalf but it’s made no difference and it’s now decision-time.

You have a legal and ethical nightmare on your hands, don’t you?! Do you release the person from custody, out in to the street – after all, this is what the law is telling you to do in the first two situations.  In the third, the only other option is to place the person before a Magistrate.  I’m sure they would thank you whole-heartedly for asking them to deal with someone who is suspected to be very unwell but where there is no bed to access.  In any event, if we’ve now decided that someone is unwell, are we still looking at their presentation as a Breach of the Queen’s Peace or have we, more realistically, decided that the appropriate path to take is into the health and not the criminal justice system?

ETHICAL DILEMMA

How you look at this may depend to a degree on your ethics – are you more of a consequentialist or deontological philosopher?!  Is the morally ‘right’ thing to do, judged by the desirability of the outcome achieved or by whether or not we followed a standard of rules that we’ve all agreed are the rules we will abide by.  In these situations, I usually find most police officers will argue that ‘doing the right thing’ (as if that phrase means anything at all!) is achieved by keeping the person safe in the immediate sense, pushing hard for access to a bed, despite the fact that you are voluntarily walking in to an Article 5 European Convention of Human Rights nightmare.  A person shall not be deprived of their liberty except through a process defined by law.  Well, domestic law doesn’t authorise this – so are you also into false imprisonment territory?!

What about the opposite approach – maybe the custody officer thinks: “the law doesn’t allow me to do this without inflicting a potential human rights violation on the person … it’s not my fault that the AMHP and / or the Doctor and / or the NHS as a whole may be in breach of various parts of the Mental Health Act (s13/140) which collectively give rise to the AMHP being fairly impotent here.  Whilst we know it is never the AMHPs fault that they cannot access a bed, does this mean I should inflict a false imprisonment on another human being.  If I’m going to contemplate this illegal action, what other illegal actions am I going to contemplate?!” – is this another form of what some policing academics have caused ‘noble cause corruption’? Let’s be honest: if we were allowed to scoop up half and a dozen prolific offenders and detain them arbitrarily in custody for three days, we’d be pretty confident of preventing various crimes, potentially some very serious ones.  Doesn’t make it right, though, does it?!

So why might it be OK to detain a vulnerable person illegally when there’s no bed, but not prolific criminals when it will prevent crime?! Don’t both situations involve predictions of risks to individuals and others that we’re mitigating by our actions?  If we’re interested in the consequences of our decisions isn’t it the quality of the outcome that matters?  Deontologists would argue that it’s not – it’s about creating an objective framework that grounds our moral reasoning in something far more rigid, which prevents expedience from issue to issue.  So how are you going to decide what to do?!

ARTICLES TWO, THREE AND FIVE

We know from European case-law that the state owes a duty of care to people are known to be at high risk of suicide and a failure to discharge it can be a violation of Article 2 ECHR – SAVAGE and RABONE showed us this.  We also know that the ongoing detention of people in police custody in very difficult and disturbing circumstances can amount to a  violation of Article 3 ECHR – MS v UK [2012] showed us this.  We know that ongoing detention in locations which are not intended for the purpose to which someone’s detention is aimed, is a violation of Article 5 ECHR – Aerts v Belgium [1998] showed us this.  Finally, we know that being detained without a process prescribed by law, with safeguards, is a violation of Article 5 ECHR – HL v UK [2004] showed us this.

The above paragraph leaves the original dilemma wide open, so it is one that police forces and custody officers must face up to.  If you find yourself in the position of the Devon and Cornwall custody officers, what are you going to actually do?!

In the past, a police force has started legal action against the NHS to force the issue.  I’ve personally written a formal letter threatening to do so, in a similar situation during a murder investigation.  Last weekend, an ACC took to Twitter in order to bring pressure to bear and, so you know – all three of these things ‘worked’, in the sense that it brought a bed into view, where an application could be made.  When the IPCC investigated Greater Manchester Police for their 2004 incident, they stated that the force had little option to keep the man safe pending a bed being found and that whilst all actions after the decision under s34(2) PACE had been taken were  unlawful, they were, if you like, the least unlawful thing that GMP could have done.  The IPCC are consequentialists, it would seem!

But all of this post is a complete red-herring, isn’t it?!  The situation wouldn’t emerge in the first place if we had enough beds to deal with predictable demand and contingency plans, as implied by the Civil Contingencies Act 2005.  (Yes, I know the CCA doesn’t apply to NHS mental health trusts – but NHS England have told them to act as if it does.  And it does apply to CCGs and Local Health Boards in Wales.)

Why are AMHPs being placed in the position of not being able to make applications to hospitals, even in urgent circumstances.  It comes back to the commissioning of beds by CCGs (or by NHS England for children or for secure hospitals) and the current inability to match supply to demand.  I’ve long worried about the lack of contingency plans within the mental health system – because it seems, all to often, that the implications of this are either illegal detention by the police for someone who went to custody or, as highlighted by award winning journalist Andy McNICOLL from Community Care, suicides of (at least seven) patients where risk decisions were taken that it was acceptable for them to remain at home pending a bed becoming available.

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The Mental Health Cop blog

Badgewon the ConnectedCOPS ‘Top Cop’ Award for leveraging social media in policing.
won the Digital Media Award from the UK’s leading mental health charity, Mind
– won a World of Mentalists #TWIMAward for the best in mental health blogs

ccawards2013 was highlighted by the Independent Commission on Policing & Mental Health
– was referenced in the UK Parliamentary debate on Policing & Mental Health
was commended by the Home Affairs Select Committee of the UK Parliament.

humanrights

Prioritising Human Rights

I’ve been unable to stop thinking about yesterday’s incident involving a mentally unwell sixteen year old girl in police custody for two days!  TWO DAYS!? If the police did that to any criminal they would be investigated by the IPCC.

I admit, I’m probably more appalled by it tonight than I was last night.  This is partly because there has been a fair amount of social media debriefing and debate going on about it, much of it expressing admiration for ACC Paul NETHERTON’s willingness to speak out and push the envelope.  We learned today that the girl’s mother had taken chocolates to the police station to thank the officers for their efforts to do as much as possible.  It turns out they had even made the effort to fetch her a McDonald’s meal rather than keep subjecting her to microwavable police food!  I’m proud that it has been a repeated theme in my work this week, to hear of patients and families who thought the officers they dealt with treated them with dignity and compassion, notwithstanding that their encounter may well have been in circumstances we’d rather not contemplate.  I was glad to see that seemed to be the perception here, too.

THE LEAST WORST OPTION

So why this second post? – to highlight an issue about ‘thinking’ and about conflicts in law.  I seem to have witnessed a recurring dialogue that focussed on all the relatively unimportant reasons that nothing more could be done rather than on the glaringly obvious reason why walls should have been broken down long before a senior police had to get involved.

For example, I know that on other occasions where a CAMHS bed has been unavailable, a child has sometimes been admitted to an adult mental health ward, with specialist nursing support to ensure safeguarding.  I also know of occasions where a Mental Health Trust has shut down its s136 Place of Safety and temporarily used that space to admit a CAMHS patient who remained there for six weeks until a bed was arranged, despite the fact that the trust concerned would not otherwise allow the s136 suite to be used for 72hrs to assess a child – but they were happy enough to have the child there for six weeks!?  We know that on occasions, a CAMHS patient has been ‘sectioned’ to an children’s ward in an acute hospital or to a specialist children’s hospital which has a ‘CAMHS’ wing, possibly with additional nursing support.

Nobody thinks that any of these things are inherently great ideas that we should be looking to very casually – they may be things you may start to consider that might be just a bit better, if still far from ideal.  I’m wondering how many mental health professionals will have read the previous paragraph and be thinking, “Hang on!  You can’t just do that because …”?!  I want to argue that this is the beginning of inappropriate focus on the legalities involved.  Let’s look at the one massive reason for moving heaven and earth to sort this, not the nine less important reasons to just let things run their course —

  • “You can’t admit a child into an adult mental health ward, because it is a safeguarding risk” – the NHS have to report such things as a Serious Untoward Incident and conduct a thorough review.  Fair enough – we can all understand why this happens.  Doesn’t mean it’s always a worse idea that the problem you’re fixing by doing it.  It happens from time to time and if illegal, protracted detention in police custody is not a point where we start to think about it, when do we think about doing it?!
  • “You can’t close a place of safety down and admit someone there – it’s not a commissioned bed that is available for admissions!” – that is a remark about NHS bureaucracy, isn’t it.  We know that there are many circumstances where wards are run over 100% capacity.  If this is such an outrage, why does it ever happen? – presumably in situations where it is less of an outrage that than the outrage that would otherwise prevail?!
  • “You can’t detain a mentally unwell child on a ward of other acutely sick children, it just isn’t fair.” – so the child with mental health problems loses out, because physically ill children have to take priority?  What was that you said about parity of esteem?!  This presumes that physically ill children can’t be noisy, disruptive or emotionally affected by the experience they’re going through which is one hell of an assumption to make.

Well, guess what? – you can’t illegally detain a child in a cell block either, beyond the timescales prescribed by law.  And so the decision becomes about which set of regrettable circumstances to which you’d prefer to be party – something that is about trying to do the best we can, however unideal it is, where we try to get close to the legal frameworks that govern us all; or something where we put issues other than patients at the forefront of our thinking? Mental health professionals can become unwitting accomplices to intransigence when they won’t consider how to bash through the commissioning, budgetary and over-functionalised bureaucracy that is our NHS system – remember that in MS v UK, the degradation occurred in police custody but it was the NHS who were found liable, not the police.

I understand the reasons why something is not ideal, but what I’ve been hearing all weekend is why we’re going to rigidly adhere to organisational preferences and guidelines despite the very great likelihood that a child’s fundamental human rights were compromised.  So let’s look at this in a bit more detail and think about it legally.

CONFLICTS OF LAWS

There are many situations in which laws can conflict and contradict and we see this in European Convention caselaw.  We carry on with domestic laws until arguments are occasionally put forward that even more fundamental rights are being jeopardized.  One example was the introduction of the Mental Capacity Act in 2005.  The year before, the so-called ‘Bournwood’ case was a challenge brought by a man who had been detained for a long time in institutional care.  It was argued that he was unable to look after himself and his own affairs because of his condition but because he had a learning disability and was not “abnormally aggressive or seriously irresponsible” (s1 MHA 1983) the Mental Health Act 1983 could not be applied.  Clinicians therefore ordered his detention under the Common Law Doctrine of Necessity.  The man argued in HL v UK [2004] that this detention being indefinite and without an obvious basis to review or appeal, it violated his Article 5 rights to liberty and security.  He won and as a result, the UK Government introduced the Mental Capacity Act 2005 and subsequently the Deprivation of Liberty Safeguards, to cater for such situations.  It still means that individuals with similar conditions and needs can be detained or deprived of their liberty in some circumstances  but it provides a framework around that situation, including a right to challenge it.

We could give other examples: in MS v UK [2012] a man was detained in police custody as a place of safety, after being detained under s136 of the Mental Health Act.  Nothing specifically prevents this from happening as our domestic law caters for this very situation and allows it to happen on an exceptional basis.  However, because of MS’s particular presentation in the hours and days following his detention by the police, he argued that by being left in that place of safety for over two and a half days subsequent to being assessed as requiring an urgent admission, he had suffered inhumane and degrading treatment.  He won this argument and it was nothing like sufficient for the Mental Health Trust involved to argue that he hadn’t really come to harm and that his detention had followed a legal process.  The point was that they way in which that process unfolded was the problem that degraded him.  Had that processes unfolded following the detention of another patient, presenting differently, there may well have been no violation of Article 3.

So some situations force a choice upon those professionals involved: what would you rather breach – your organisation’s bureacracy, health service guidelines, statutory guidelines like a Code of Practice; an Act of Parliament like the Mental Health Act 1983 or the Police and Criminal Evidence Act 1984; or the European Convention on Human Rights?  I’ve written about this kind of thing before: sometimes it’s about choosing the least worst option from a range of potentially bad ideas.  But in the absence of some good ideas, you might have to make the best of things?!

That’s what work at the interface of policing and mental health is all about!

COMMON SENSE TEST

So let’s ask some really basic questions:  is it better or is it worse for a 16yr old child, acutely unwell, to be legally detained in a mental health unit that is having to draft in some extra staff to help keep her safe because they are running at 104% capacity rather than be in police custody, surrounded by cops and the other prisoners that are brought in?  I won’t graphically describe what some prisoners are like in custody – we can all just agree that it’s a hell-hole of noise, filth and violence.

If you’re going to have to breach something we’d all prefer not to breach, are you going to worry more about violating internal NHS process or violating a child’s fundamental human rights?  If I’m honest, I don’t even find that a hard question: I’m going to breach the process that has failed to ensure her fundamental rights and dignity and my explanation will be “I have a positive duty to ensure this happens as she was being held illegally before I made my decision.”  As a police officer, I have faced this very dilemma:  I’ve been posted to work in areas where the locally agreed joint protocol for how the Mental Health Act will work, breached the Mental Health Act Code of Practice or simply didn’t exist.  I have also worked in areas where the Code itself may well have been complied with, but to do so would have put people in danger that could lead to me being prosecuted for negligence and neglect.  So sometimes, I was in effect directed to do things that other legal structures direct me to avoid.

And so I have a choice to make, whether I want it or not – and so does every mental health professional involved in emergency mental health care.

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The Mental Health Cop blog

Badgewon the ConnectedCOPS ‘Top Cop’ Award for leveraging social media in policing.
won the Digital Media Award from the UK’s leading mental health charity, Mind
– won a World of Mentalists #TWIMAward for the best in mental health blogs

ccawards2013 was highlighted by the Independent Commission on Policing & Mental Health
– was referenced in the UK Parliamentary debate on Policing & Mental Health
was commended by the Home Affairs Select Committee of the UK Parliament.