We are still behind where we need to be in using the Mental Capacity Act: I heard recently from an AMHP asked to under take a Mental Health Act assessment in an A&E department after police officers had ‘removed’ the person there “under the MCA because they wouldn’t come outside!” …… we also heard in the cases of ‘Sessy‘  and ZH v Commissioner of Police for the Metropolis  how the Metropolitan Police had ‘used’ the MCA: –
No, no, no, no … NO! – where there are no acute medical emergency or life-threatening situation, but ‘merely’ a concern about mental ill health and a perception that early assessment was needed, it does not follow at all in law the MCA can be ‘used’ by the police. I don’t say ‘merely’ to minimise the impact of the seriousness upon individuals of their condition, or of the importance of assessment, treatment and support – I use it to (badly?) differentiate between such events and imminently life-threatening medical or psychiatric emergency.
No ambulances were called, no AMHPs requested, no CrisisTeams engaged. So potentially, such removal as mentioned by the AMHP, above, was illegal as agreed by the Commissioner of the Metropolitan Police in Sessey. The phrasing of the background to these officers’ decision also implied to the AMHP that if they had been able ‘get’ the person outside their own house, they would have detained them under s136 MHA. This is also illegal: in no way could officers argue in such circumstances that they had “found in a place to which the public had access” etc., etc..
Here is –
1. A Quick Guide to the MCA –
3. A short screening tool to assess capacity – the “ID a CURE“.
Police responses to mental health crisis in private premises can be complex and I have written about them previously. The police service has no powers in a private dwelling to coercively manage such situations unless additionally, there is a criminal offending committed or attempted; or unless there is a Breach of the Peace ongoing or apprehended – OR unless the health service are involved in supporting the care pathway and the decision-making.
My advice to officers on those situations is contained within a Quick Guide on the subject. It can be difficult to manage. In many areas, a CrisisTeam will not respond unless the person concerned is known to, or ‘open’ to, mental health services already – even if they do, CrisisTeams out of hours are usually nurses so cannot immediately initiate removal to a place of safety and cannot undertake formal MHA assessment. Many AMHP services will not respond directly to a police or indeed to an ambulance service request to assess someone. Out of hours GPs will often not respond to such instances at people’s homes to indicate whether formal assessment is required and activate that where it is.
As such, officers can find themselves in a position where they have followed the above Quick Guide and reached the point where they are still standing in a private dwelling along with a vulnerable person and being able to secure no support from the NHS or social care services, except perhaps for paramedics. As stated: the ambulance service often have no greater ability to access out of hours mental health crisis pathways than the police – sometimes, less ability.
So, if you find yourself standing there with all the criteria for s136 having been met except for the geographical one, what can you do? Any one of three things, obviously ranked from low to high risk situations, depending upon the features on the incident:
- Leave the person in situ >> whilst making or having made relevant referrals to appropriate referrals to NHS or social care organisations.
- Remain in situ >> whilst continuing to lobby for an assessment oriented response.
- Use the MCA to remove the person >> having reached a point where it is argued it may be legitimately used.
In circumstances of non-imminent threat, decisions about the use of the MCA are for healthcare professionals. This would include paramedics where they have been called – they often have greater MCA training than police officers and it is a CoP requirement that the police defer these decision to ‘health’ where possible. But if you’ve tried everything else and failed to secure a resolution, it starts to make the use of the Mental Capacity Act justified as long as the criteria for using it are met.
Should the police be unable to engage the ambulance service or if they have to act with urgency before they arrive, this is the Quick Guide to the MCA, including a very practical tool to assess capacity shared with me by a paramedic and known as the “ID a CURE” test.
But let’s not be too quick to say, “Let’s just use the MCA” because it really is just not that simple.
A woman in her fifties is in her own home and she calls 999 threatening to kill herself. Police are despatched and gain access to the premises, they find a woman who is under the influence of alcohol. Police intelligence checks reveal previous attendances at that address in order to undertake mental health related support to the NHS and warning markers on PNC for mental health issues, suicide risk and self-harm. Upon arrival, the police find someone who is under the influence of alcohol but not drunk, she has self-harmed although the injuries are superficial and she states that she has been trying to call her CMHT all day but not been able to get through. There are no criminal offences and there is no anticipation of a breach of the peace
Can you use the MCA to remove her from her dwelling? No. Are you yet certain that she lacks capacity about the decision she is taking to drink and self-harm? Even if you were, is the yet known to be the least restrictive thing to do? There is no imminent, life-threatening risk, no literally urgent medical care that is required. So how do you proceed?
- Contact one or more of the following:
- Patient’s GP
If they respond and take the lead, fine. If they do not – for whatever reason you then have the following dilemma:
- In light of what you know, do you reasonably believe that she lacks mental capacity (see the “ID a CURE” test).
- In light of the threats and risks, is it proportionate to remove the person to A&E for assessment / treatment of injury?
Maybe – are there friends and family that could be brought into the situation? … would that help?! … if ultimately the answers are “No!”, or if all of that has been tried and failed, what do you do?!!
We will probably find different answers to this and they will be influenced by experience and personal judgement. If you are going to ‘use’ the MCA to intervene – because not to do so when you reasonably believe the person lacks capacity to take decisions around self-harm or treatment would be negligent – ensure that the documented approach for doing so complies with the sections 2-6 of the MCA and that you involve your supervisors.
Again: a Quick Guide to the MCA – a longer article with links to sections of the Act – the “ID a CURE” screening tool.
The Mental Health Cop blog
– won 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
– 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.