Some debate has resulted from this morning’s post about ‘gaps’! I want to suggest that what I’m trying to highlight has to a degree been mis-interpreted so I’d like to add to my first thoughts without editing them and or by extending the post. A part 2 is required!
A comment has been made that the Judge in the ‘Sessey’ case clearly stated that there was no ‘gap’ in the law. This is correct – the law offers the potential for all situations to be managed and in that sense there is no gap.
What the law does NOT do, is compel those who would actually need to be present in order to manage those particular healthcare situations, to be there. Often, they choose not. In that sense, there is very real ‘gap’. And I’ve been required to fill it – repeatedly; and without the benefit of the skills, or legal authority.
Purely because somebody lacks capacity – and it’s not always clear that they do – it doesn’t immediately mean that you can, to quote a healthcare professional, “drag them by the wrists to hospital”. It would have to be proportionate to the risks faced by not doing so and those risks are not always clear amidst a legal presumption of ‘capacity’. And(!) to which hospital?! A&E will probably say “psychiatric place of safety” and vice versa.
- In a private premises, it is perfectly possible – however unlikely! – for an ambulance and / or crisis team to attend sub-criminal, non-life threatening situations to discuss with the police the necessary care pathway and the legal route to it. This would ensure a health lead to a healthcare situation and access to available health and social care pathways – if they existed.
- Thereafter, an AMHP and one DRs could choose to attend and make assessment for someone’s urgent admission under s4 MHA, using a warrant under s135(1) to facilitate access to that assessment, if thought fit. How quickly such things can occur, would depend on how well resourced such services were.
- Regardless of those two points: in a private premises, should matters be urgent, life-threatening, etc., the Sessey case does not prevent police use of the Mental Capacity Act – the point in Sessey was that the Metropolitan Police Commissioner agreed his officers had used it unlawfully. The police could call an ambulance as soon as they’d decided to use it, to get the health input and we know this already happens in some areas.
- Where Mental Capacity Act based intervention is being considered in non-urgent, non life-threatening cases, the capacity assessment should be determined by healthcare professionals wherever possible – ambulance, probably – and nature of the intervention would have to be determined by healthcare professionals. Not only do they have better training in capacity assessment, the MCA code requires that approach.
So the ‘gap’ that I’m referring to, is mainly one of public policy and resourcing, not law. It is a gap which exists where NHS services either can not, will not or do not choose to respond to such situations in order to provide a health lead to a healthcare situation. For whatever reason which I do not judge.
I’m grateful too, for two tweets today, highlighting from a service user’s point of view, that they recognise the gap I describe. One of them described it not as a gap but “a gaping chasm.” The other has ‘written insightfully about being stuck in the gap‘ and it is well worth a read.
If anything about a situation involved criminal offences by the person concerned or a legitimate anticipation of a breach of the peace and it was not possible to get very prompt NHS ownership of the situation, then the police would undoubtedly have managed those risks by affecting an arrest. It’s where such arrests cannot be made, and the NHS can not, will not or do not respond that the ‘gap’ exists. So the gap is not legal – unless you count a lack of obligation on the NHS to respond – but it is in terms of public policy because NHS organisations do not have accept that it could be their role.
Those of us who have stood in the dwellings of vulnerable people know about this gap: sometimes with known mental health patients, trying to find ways to resolve situations of risk where no arrest can be made, where it is not clear that people lack capacity – remember: we’re obliged to presume that people have capacity – and no clear NHS ownership forthcoming.
But it only exists so long as NHS commissioners or managers choose not to target resources at ensuring a non-criminalising, health-led and rapid response type approach to community mental health crisis.