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.

5 thoughts on “Assumptions to avoid

  1. “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”
    No, but sec 5 of the Mental capacity Act 2005 (Acts in connection with care or treatment) is increasingly being used in dwellings.

    1. Somewhat illegally, following the case of R (Sessey) v South London & Maudsley NHS Trust

      I don’t think this case totally rules out the possibility of utilising the Mental Capacity Act, but I’ve heard some barrsiters say that it does and others say only in (literally) life-threatening situations. The argument is, that it is not proportionate to use the MCA to coerce someone to a mental health unit or A&E, if the proper procedure of an AMHP and DR attending (with s135(1) warrant, if needed) could be taken.

      I also realise, the idea of the police ringing an AMHP from a job and getting a turn out faster than 4hrs (at best) is fantasy land.

  2. Our force guidelines are to fully document the reasons why you believe the person cannot reasonably make decisions in their best interests and take the m to A+E for crisis team assessment.
    The 136 ward is only for 136 detentions and cannot be used for MCA. It would seem that the criticism of police action in this case is to take the person to a 136 ward?

    1. Does that actually work in practice and for which decisions (that the person cannot take because of incapacity)? Capacity is not something you either have or don’t have – it is specific to the decision being taken.

  3. It has worked so far (as so far as it’s not been legally challenged yet in the cases I’ve been involved with). I’m not there to do a Sainsbury’s assessment or to determine capacity, I’m there to determine if the person can make decisions in their best interest. (and to PNB the rationale to cover my back)

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