This blog is a response to a post by Sarah Bellamy, author of ‘A Carer’s Eyes’. Her post “If you leave, we’ll call the police” concerns her partner, Chris, and his experiences in Accident and Emergency. (Sarah has also written a follow-up post.) It’s all about the duty of care to A&E patients who have mental health problems and what, if anything, A&E staff could or should do, to stop patients leaving – in what circumstances can they do so. There has been a good debate on Twitter about this post, with professionals chipping in with various views but I want to give it more than 140 characters.
This story struck me, because of several incidents I am aware of in my area; one of which I was involved in. The best example concerns a man who was taken to Accident & Emergency after an ambulance had been called to him. He was self-harming, appeared suicidal and had a history of mental health problems and clinical depression. During several hours in A&E, his cuts were cleaned and dressed, and arrangements were put in place to assess him under the Mental Health Act.
Whilst waiting for this to occur, the chap became increasingly agitated and anxious, he started saying he wanted to leave. Staff did their best verbally to encourage him to stay, but he decided to go. They let him leave or did not stop him and the police were not called. The police did become involved in the incident, however: because 60 minutes later they were dealing with a man threatening to jump from the top of a multi-story car park and within 90 minutes of him leaving, they were dealing with a suicide by jumping.
Following the inquest, the hospital contacted the police to tighten up procedures around mentally ill or otherwise vulnerable patients absenting themselves from A&E. They were very keen to be able to immediately report people who walked out – not that they need permission – but also wanted to talk about what, if anything their duty would be to keep people from leaving, where engaging any risks may be consistent with expectations upon nursing or healthcare assistants, security officers.
- Patients in A&E are not considered hospital inpatients for the purposes of the Mental Health Act, so Doctors’ and Nurses’ holding powers cannot be used.
- Only the police can instigate ss136 / 297 / a130 detentions, so that is not an option for the NHS or their security.
- What about common law (doctrine of necessity) or the Mental Capacity Act 2005?
Well – it turns out that the Coroner had written a ‘Rule 43’ letter to the NHS Trust, requiring demonstration of tightened procedures, and closer liaison with the police for those cases where someone’s departure needed to be prevented but couldn’t be.
Clearly, NHS staff once they accept someone into their department and commence assessment and treatment, owe various legal duties to patients: Human Rights duties around no deprivation of liberty (Article 5), inhumane treatment (Article 3), right to life (Article 2). We’ve seen recently in the Rabone case, that human rights obligations around the right to life can extend to non-detained mental health patients, albeit Michelle Rabone was an admitted patient; but duties around risks, prevention would remain. It is also true to say, these duties can conflict: what if there is doubt about whether the MCA would allow detention pending arrival of the police (art5) but there is a real fear if someone leaves they will kill themselves (art2)?
It is clear that in many circumstances, A&E staff would be obliged to let most patients leave if they wanted to. People often walk out of A&E against medical advice – the mere fact of doing something ‘unwise’ does not immediately mean that someone lacks capacity to take the decision to leave. Equally, capacity is situationally specific to the decision being taken: at the same time, someone may have the capacity to decline a drink, but not to decline a course of medical treatment. Quite possibly, that could come about because the consequences of not having a drink and zero or trivial, whilst declining medical treatment could be life-threatening.
So it is a complex business for A&E to make decisions about what, if anything they should do. There have been various reports about integrating mental health care with physical healthcare, including from the Academy of Medical Royal Colleges. The preface of this document states: “It is a matter of shame that this document is needed. But needed it most certainly is.” and goes on to detail common, regrettable problems in integration. It recommends more training in mental health for A&E nurses, etc., and closer work with or the creation of liaison psychiatry services.
Meanwhile back in A&E: the duty of care owed to patients who are there, not least because of Human Rights obligations, could be covered by s44 of the Mental Capacity Act which creates a criminal offence of wilful neglect or ill-treatment of those who lack capacity. It puts the police in tough position if families allege or officers suspect that someone who should have been prevented from leaving because of a lack of capacity was not prevented and nothing else done. What if relatives make criminal complaints to the police so that such circumstances are fully investigated?
Capacity assessments are often required on individuals who come through A&E departments where decision-making is affected by mental health, drugs / alcohol, head injury; organic conditions such as dementia, etc.. And these things cannot be entirely separated from physical illness.
In my area about two years ago, a man jumped from a bridge over the motorway network. He’d had a drink, but wasn’t drunk and he had a history of depression and this was (to him) a serious suicide attempt. He broke his leg particularly badly in the fall and suffered other physical injuries less serious than that. When he arrived in A&E he attempted to decline all treatment maintaining that he wanted to be allowed to die and was making remarkable efforts to try and leave. The medical staff got into their assessment of capacity and took the view that he lacked the capacity to take the decision to leave, because the alcohol and his mental health prevented him from fully understanding the consequences and they detained him using hospital security. They also called police back to A&E and requested he be detained under s136 for full MHA assessment. He was sectioned to an orthopeadic ward as his leg injury needed an operation.
So, it really isn’t as simple as saying that if someone wants to leave A&E that they can unless the police have got them under arrest. A&E would get this completely if you gave them the example of an extremely confused 87yr old dementia patient in their night-clothes found wandering who was picked up by the ambulance service and brought in. If she tried to walk out into the night, they’d put a gentle arm around and stop her from doing so. They may well also be calling security or police, but they’d do something and they would be right to do so if the opposite was to let a dementia patient wander off.
No-one is suggesting that A&E should be sitting on people (although I have dashed to A&E after a 999 call to see hospital security doing exactly that – most recently to stop a alcoholic from drinking the A&E hand-gel when they knew that his medical condition was so developed following decades of abuse that alcohol could well kill him.) But there are duties of care, and these are not necessarily fully understood because in some areas I know, the senior MH managers and the senior Acute Trust managers don’t know each other. I’ve also seen each of them refuse to meet each other and the police to try and draw services together, for these kinds of things.
I found those conversations involving refusal – they were asked directly to do so – utterly breathtaking.