One feature of policing commented upon by Professor PAJ WADDINGTON in his excellent book, Policing Citizens, was that the police are not automatically on the side of the party who brought them into any particular dispute. They are independently attested, accountable to the law. I’ve been asked by two mental health professionals to write up a story of an incident I was involved in many years ago, which flew in the face of their colleagues expectations regarding patient rights. It followed discussion about how the admission or detention of voluntary psychiatric patients is handled, especially with regarding to any decision they may make to leave.
A woman was admitted to a psychiatric ward as an informal patient and had been there for around three weeks. During this time, she had left the ward on one occasion and been reported missing. She was taken back there with her consent by police officers and it is my understanding that whilst remaining as an informal patient she had made representations that she wanted to leave.
A bit of law here – paragraph 21.36 of the Code of Practice to the Mental Health Act 1983 makes it clear that “Patients who are not legally detained in hospital have the right to leave at any time. They cannot be required to ask permission to do so, but may be asked to inform staff when they wish to leave the ward.”
One particular autumn evening, my officers received a call to a psychiatric ward. The senior nurse wished police officers to attend and arrest a patient for causing damage to the ward. We were also informed it was the second time that day, the police had been called for damage – the first incident having been managed by the shift which preceded us – and it was the third time that damage had been caused. The NHS staff had handled the first incident ‘internally’ and the early shift had ‘informally warned’ her about the second offence at the request of the staff who did not wish to see the woman arrested.
Upon this second call to the police and third incident of damage, the staff were explicitly asking that the woman be arrested. In accordance with the policies I had established whilst working on mental health at headquarters, I sought a range of information which included the legal status of the patient. This is when I was informed that she was ‘informal’ – ie, not detained in hospital under the Mental Health Act. I asked the senior nurse about the damage and all three incidents had been damage to windows or doors which would have allowed some kind of exit from the ward. I began to get curious and asked if she was trying to leave again, bearing in mind my questions had already revealed the previous missing patient report. The nurse confirmed that she was making remarks that she wanted “out”. So have you now held her under a holding power? – No. On what basis is she legally detained?! – the consultant has written up that she’s not allowed to leave. On what grounds?!! ……
The particular consultant in charge of her care had gone home for the day. The on-call consultant was not her “Responsible Clinician” – this is the term for the named clinical leader in charge of the patient’s care. I asked the nurse to let me speak with that on-call consultant and phone calls were put in. As it happened, they were in the hospital on matters connected to another patient and came to the ward we were on.
At this stage my thoughts were: here is an informal patient who is free to leave the hospital and doesn’t even need to ask permission (see the above legal point). They are not being allowed to leave and have caused damage to windows and doors which are exit points. The nurse refuses to confirm that the MHA has been applied to make their detention legal, either s5(4) MHA, the nurses holding power; or s5(2) the DRs holding power.
Is this person now unlawfully detained? … a false imprisonment?! Quite possibly.
More law – if a legal complaint is made of false imprisonment, it is first necessary to establish whether an ‘imprisonment’ has occured. If it has, the onus is then upon the detaining authority to demonstrate that this ‘imprisonment’ was lawful, usually with reference to the law under which they have acted. Although this was true before the Human Rights Act 1998, it was well encapsulated in Article 5 which prohibits “detention except in accordance with a process proscribed by law.”
Final piece of law – when you cause damage to something, you have a defence to a charge of damage if you can show that you caused the damage lawfully. This, for example, is how the police justify causing damage to someone’s front door, if we force it off in order to then arrest them for an offence or search the premises under a legal authority.
So here we have two conflicting legal dilemmas – has the hospital got a clear legal authority for detention? No – they describe the patient as informal and therefore free to leave, but they are not being allowed to leave. Has the patient got a lawful reason for causing damage to the trust’s property? Yes – they are not necessarily legally detained by the trust and are therefore entitled to use reasonable force to free themselves from this detention.
In walked the consultant on-call. I explained that I fully understood he was not the RC in this case, but that we’d been called to an allegation of criminal damage and had started forming a view that the damage may have been caused lawfully by a patient who was unlawfully detained. I understood that the patient was not known to him and he’d presumably want to speak to the nursing staff to get the background, but I was in the position of wondering whether the offence here was being committed by the trust, not by the patient?!
After 10 minutes with the nursing staff, he repeated to me that the RC involved had written up in the notes that the patient was not to be allowed to leave the ward. I responded that I understood this and didn’t have grounds or qualifications to question that clinically – what I did have grounds to question, now that we had been invited into the scenario, was the legality of it. Under which part of the Mental Health Act 1983 was she now detained? This wasn’t mere intrusion for it’s own sake on my part, either – this information was crucial to my subsequent actions and would either render her damage unlawful and open her to arrest and prosecution because she was properly and legally detained, but without this it would render her a victim of false imprisonment who is being denied her right to leave.
It became necessary to point out, that unless I was provided with legal reassurance that she was lawfully detained, it would be necessary to consider investigation of staff for what they now knew to be an illegal detention which would make it a criminal investigation and make them liable to arrest. Perhaps they would like to discuss just one more time whether to apply the Mental Health Act or allow the patient to leave?
Fifteen minutes later and after a phone call by the on-call consultant to the actual Responsible Clinician, the patient was released. She declined to make a formal complaint of false imprisonment against staff but was made well aware of her right to do so and / or to speak to a solicitor at a later date and she went on her way. All the staff involved that night were asked to take on board my informal warnings that they may well have acted illegally and in particular that nurses should be advised they cannot simply rely upon illegal instructions from doctors to detain. They must be certain of their own grounds for acting. << This is no different in the police were junior officers cannot blame illegal direction from senior officers for their actions. They must be independently satisfied in their use of force or their use of arrest.
Unusual story for the police to get involved in, but it shows the importance of asking the right questions. I have previously written about how to deal with reports that patients have offended and it includes a series of questions to ask. They are important questions, for a wide range of reasons.
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.