The Police and the Mental Capacity Act

It is important we understand at the outset: this Mental Capacity Act stuff can cause nightmares for partnership working because of the number of myths which already exist and because the police and many parts of the NHS have had little or no training.  I’m going to do a couple of posts on it – first explanatory and then later I’ll do a punchy ‘guidance’ post for police officers applying it.

Update (May 2012) >>> A simple, handy tool to approach decision making when thinking of the Mental Capacity Act is The CURE Test.

Some police forces appear to have latched on to the MCA in various circumstances, but in particular for its potential to help resolve mental health crisis situations in private premises.  There has now been a significant stated case about the MCA – the ‘Sessey’ case – after the Metropolitan Police considered its application to attending private premises where someone was suffering from mental health problems.  In circumstances where they did not or could not get an AMHP to attend and assess under the Mental Health Act, officers considered whether the MCA allowed to ‘remove’ someone to a place of safety, as if under s136 MHA, in order to be assessed for admission to hospital under the Mental Health Act. 

It was agreed between the claimant and the Commissioner that there was no power to do this and the court ruled that detention in the place of safety pending assessment, had been unlawful.

Here’s my rule of thumb:  if you can avoid taking decisions – including mental health care decisions – implied by the Mental Capacity Act because there is time to call an ambulance or other health or social care professionals, you should do so.  Any intervention should be restricted to those circumstances where you absolutely must intervene in order to preserve life or prevent serious injury and this means having regard to s4B MCA – only where intervention is necessary to mitigate an immiment, life-threatening risk. Principally, decisions around capacity and healthcare should be taken by healthcare professionals – this sentence is not my view, it is a requirement of the Code of Practice to the MCA.

So how do you apply it?

  • One should determine whether someone has capacity with reference to the test in s2 MCA – nobody is asking for scientific assessment, just a properly considered decision.
  • Whether or not someone can take a decision for themselves is determined by the approach in s3 MCA.
  • One may then undertake proportionate acts to safeguard someone’s best interests (understood by reading s4 MCA) , in accordance with principles explained in s1 MCA.
  • Officers would then be protected from any legal liabilities ordinarily arising from that act, by virtue of s5 MCA, as long as they acted in good faith to do the right thing – the proper legal terminology is that you acted in the best interests of someone whom you reasonably believed lacked capacity.
  • If doing the right thing involves the ‘restraint’ of a person, it must be done in accordance with s6 MCA.
  • If one has assessed as per s4 MCA and acted in accordance with the principles of s1 MCA and acted within the spirit of s5 MCA, (then s6 MCA if restraint is required) it will provide a legal ‘defence’ to the action taken, as long as it was done in good faith.
  • There is a good explanation of how to consider the principles which underpin the Act, within chapter 2 of the Code of Practice to the MCA.

Real examples:

1.  The police are called to a private dwelling to a report of an out-of-hours GP with ambulance and family, attending to a man in his 80s who needs removing to A&E.  The GP explains that the man is thought to have had mild dementia for some while although he normally lives on his own.  The man is frail and confused because he has contracted a urinary tract infection which had affected his congitive functioning because it had become quite acute.  He’d become extremely confused over the last three or four days and become unable to look after himself – not eating or drinking – and he has soiled much of his house because he has not been using the toilet.  The GP explains that the infection has caught hold so severely that because of frailty, the man’s life is genuinely at risk if he is not taken to A&E shortly and treated with antibiotics.  Between him, the paramedics and the man’s daughter and son-in-law, they’ve tried to get him to A&E, but he is refusing and they need help.  The GP confirms that the man lacks the capacity to take this decision, because of the infection and his dementia.

2.  You attend street to a report of a robbery where man has been badly beaten whilst on his way home from a night out.  He appears intoxicated, but he has sustained head injuries in the beating and his wallet and phone have been taken.  He is wandering in and out of the road when you arrive and all attempts to verbally manage him and encourage him to safety have failed.  You use a low level of force to get him out of the road and the paramedics arrive.  They express serious concern about the head injuries, because his face is already badly swollen and cut.  You all attempt to get the man into the ambulance for removal to hospital, but he declines.  Between you and the paramedics, it is suggested that his intoxication probably prevents him understanding the extent of his injuries and the potential consequences of them not being assessed and treated more or less immediately.  They cannot rule out the possibility that the injuries sustained have been very serious indeed, potentially life altering and everyone is agreed that because of alcohol, disorientation and quite possibly shock and pain from the injuries themselves, he lacks capacity to decline treatment.

Not a substitute for the Mental Health Act

The ‘Sessey’ case showed that where police officers attend a private dwelling to a non-life threatening situation  – or not immediately life-threatening – that they should not use the MCA because no power to remove someone to hospital exists.  The court reminded us that the statutory response to mental ill health on private premises, is for Mental Health Act assessment to occur led by an AMHP.  If the urgency of the assessment means that only one DR can be involved, they can use the emergency admission mechanism under s4 MHA.  The case was unequivocal, that the MCA should not be used to subvert the need for this approach.

(Potentially, officers consider the MCA because of an inability to secure prompt attendance to mental health crisis situations by mental health professionals.  The answer to this, is closer partnership working with crisis teams and agreed support between the agencies and senior officers should ensure that this achieved through robust, reviewed protocols.)

There is more to be read on this within the NPIA Guidelines (para 6.3.1 on p87) and it is also worth reading the Code of Practice to the MCA particularly chapters 2 and 4.

Is A&E a place of safety?

ANYWHERE can be a Place of Safety under the Mental Health Act as long as the occupier is temporarily willing to receive the patient.  This is stated in s135(6) of the Mental Health Act.  Of course, the Act also declares that hospitals and police stations are places of safety (PoS); and the Code of Practice requires a joint protocol to exist which indicates which PoS should be used and in which circumstances.  So if a hospital A&E department agrees to accept someone for assessment, treatment – in what sense are they still not a Place of Safety?  It’s wordsmithery.

I’m not going to recall the story of an officer who once removed someone to a GP’s surgery to find the doctor happy to help and let his surgery be used.  Or the child who was taken home and assessed there once officers were happy it was clean and safe.

Of course, ideally, A&E would be used for medical emergencies and treatment of physical injury only; a psychiatric or dedicated PoS would be used for more or less everything else; and a police station only as a last resort.  But what if the middle option doesn’t exist at all; or it doesn’t work properly?  What if the police know, that resort to the cells may well be medically risky and potentially illegal?

We should remember: regardless of domestic law and local protocols, whatever ends up happening MUST survive contact with articles 2, 3 and 5 of the ECHR.  There have already been successful human rights based challenges around s136 and more are pending (MS v UK).  Statutory regulators have given direction to police forces that their acquiesance to inadequate local NHS arrangements would constitute a human rights breach in certain circumstances.  We also know, that attempting to get direct access to healthcare would make the difference when trying to decide whether or not officers were negligent.

Some people are potentially too ill to be in a police station, but not ill enough to be in A&E.

I can give multiple examples of incidents where officers have ‘done as they were told’ by their NHS areas who wrote protocols saying things like “The police station is the place of safety” or who documented such gems of clinical clarity as “people arrested under s136 who are violent or intoxicated should go to the cells”.  Such cases have ended very badly indeed, worst of all for patients.  We all know, alcohol can mask other problems and resistant behaviours can be symptomatic of all sorts of things.

BUT(!) before my colleagues in A&E point out – quite rightly – that A&E is (usually) not ‘designated’ as a PoS; that it is not equipped to act as a place of safety; that it is unsuitable as an environment and should only be used if patients have got additional medical problems or injuries that indicate A&E is appropriate.  I have this to say:

  • You could say all of that about police stations – few Chief Constables WANT their police custody blocks used as a PoS and there is probably more public material against the use of police stations than against the use of A&E.
  • The word ‘designated’ only appears four times in the whole Code of Practice and never in chapter 10 which discusses PoS protocols – the word doesn’t appear in s135(6) MHA at all.
  • Legally, there is no such thing as a designated or a non-designated PoS.
  • We know from published research, that approximately 15% of people who go to A&E have mental health problems.
  • We know that 5% of people who go to A&E are there JUST because of mental health problems.
  • We know that A&E have psychiatric liaison services, called by various names, but all who provide psychiatric assessment, including formal assessment for admission, if required.
  • So let’s not pretend that A&E do not do mental health.
  • We also know, that in some NHS areas, the managers of A&E Services do not know who the managers of MH services are, even though their frontline operational staff have daily contact and have to improvise integrated care pathways into secondary MH services where necessary.

I also understand that if areas had a properly commissioned, staffed and overseen PoS  service then such tensions as I’ve seen which appear to exist between A&E and the police may not exist at all.  In the absence of such a facility, or in the absence of being able to access it, police officers have been forced into various dilemmas, especially those of us who read Chapter 10 of the Code of Practice (Wales) and the Royal College Standards and then wondered why our experience bore no resemblance to this Nirvana described within.

Problematically, when A&E say “we’re not a place of safety” they are often undermined by their own decision-making.  If one arrested an elderly, female dementia patient and removed them to A&E asking for help from the NHS whilst explaining that the cells are full of howling drunks, robbers and rapists and that you’d really rather not subject your octogenarian to that environment, you’d probably get in.  <<< Real example.  So you are a PoS on some occasions?  OK, now I’m really confused: on what basis are we picking and choosing?  Do these decision survive contact with Equality Impact Assessments?!  Strikes me they probably wouldn’t!

This whole blog post is a TOTAL AND UTTER RED-HERRING because instead of A&E and the police getting at each other, not supporting each other; arguing about the minutiae of legal terminology neither are qualified to handle and contorting the Act and Code to support their particular point of view, the actual point is busy being missed:  properly commissioned, established and resourced Places of Safety in dedicated facilities which operate to nationally agreed standards.

Other debates are white noise.

Assumptions to avoid

I  just want to crack some assumptions that are often made.  My top three fears, because wheels can fall off:

  • Alcohol preventing a meaningful assessment under the Mental Health Act – it does not follow that it is medically safe to detain someone in a police cell until they’re sober.  Custody sergeants who believe that patients need clinical attention that cannot be provided by an FME are obliged by law to transfer that person to hospital, which inevitably means A&E.  I could but won’t give an example of a man who was arrested under the MHA whilst under the influence of a modest amount of alcohol and the A&E Consultant who subsequently treated him stated that if he had been removed to the cells prior to his collapse from undiagnosed diabetes, it all could have ended in fatality.  ALCOHOL / DRUGS CAN MASK THINGS – so let’s rule it out before we lock someone in a concrete room away from healthcare?!  >>>  Paramedic, doctor or nurse; as dictated by the need of the patient.
  • The police service do not have a legal authority to resolve every kind of situation  – mental health professionals sometimes do think that the police should be responsible for certain social functions.  My particularly favourite is being asked to conduct a ‘safe and well check’ on a patient who has rung a GP or CMHT indicating some suggestion of self-harm or suicide.  I’m not talking about pre-planned assessments involving an AMHP and DR, possibly under s135(1); I’m referring to checks the police are often asked to conduct alone, on behalf of the NHS who have concerns.  I’m a particular fan of pointing out that in someone’s own home or any private dwelling, the police have no powers under the Mental Health Act and can only act coercively if there is an (attempted) crime or an (anticipated) breach of the peace or an imminent risk to life.  And without these things, if we are told to leave a private dwelling, we become trespassers if we remain there without permission.  Someone sat in their own home in (lawful) possession of items which might be used to cause harm some while later, is insufficient to allow coercion by the police, even if mental disorder is suspected.  PARLIAMENT HAS DECIDED: the solution to mental health crisis in a private dwelling is an AMHP and a DR (with a s135(1) warrant, if needed) conducting an assessment with a view to emergency MHA admission under s4.
  • s136 of the Mental Health Act 1983 CAN and sometimes SHOULD be used in relation to people who are drunk – although not often!  Those who are KNOWN mental health patients about which there is objective information available to the arresting officer of mental disorder, are the target of this comment.  It means, that once a period of sobriety has been managed – whether that be A&E, Place of Safety or police station as determined by the needs of the person(!) – an assessment can occur with an AMHP and a DR to identify ongoing needs, medical or social.  I could but won’t give an example of a patient who died where I am convinced that if the police had arrested him under s136 MHA when they were so intoxicated they could not stand, the person would be alive today.  NOTHING IN UK LAW prevents the use of s136 MHA – or s297 MH(Scot)A or r130 MH(NI)O – with regard to people who are under the influence of alcohol.  Just make sure there is objective information about MH in addition to an officer’s perception to validate that approach.   It then ensures their substance abuse issues – one-off or ongoing – are managed once sober in the context of their overall mental health care … or it should.