Does is get more ethically complicated than wondering how you ensure you’ve discharged a duty of care if a person you have arrested or detained is busy declining the offer of medical treatment which doctors are saying is very, very necessary to ensure health and wellbeing? It is especially difficult where someone has mental health problems where questions of capacity are front and centre. And how should the police react to patients exercising any right they have to decline treatment, if the consequences to that decision could be serious injury or illness, or even death? Police officers don’t like the idea of being the one who had responsibility for a vulnerable or arrested person at the point where they die. It will trigger an automatic “contact-death” inquiry, very probably by the IPCC, and it will examine in detail the decisions that were taken, including with a view to questioning whether things could or should have been done differently. I have often referred in discussion with officers to whether we think that a proposed decision at an incident would pass “the inquest test”? During an Inquest, the family of a deceased person, or their legal representative, has the right to directly question witnesses and I often think it provokes careful consideration of a difficult decision to ask yourself whether you would be prepared to explain it to a person’s family as being the best available decision in the circumstances, that took account of all the relevant facts.
Do you remember reading from previous blogs and Quick Guides about mental capacity? You will remember that the law presumes everyone has capacity to take any decision, unless a level of proper assessment suggests otherwise. It also reminds us, that a person should not be deemed to lack capacity purely by virtue of taking an unwise decision. If someone wishes to gamble his £100,000 life savings in a roulette game, that is their business; if they wish to resign from their job, despite lacking any obvious means by which to pay their bills and mortgage – that is their affair. Many patients take decisions towards the end of their lives to decline medical treatment, knowing it will hasten their death and this is carefully assessed and supported, where appropriate. Unless, of course they lack the capacity to do so, properly assessed. Capacity assessment does not just rear its head in regard to mental health incidents for the police: recently, officers in my force arrested a man for allegedly taking a car without the owner’s consent. The man had crashed the car and was arrested following the police response to the collision. He appeared relatively uninjured, despite having been bumped and thrown about in the collision and he was checked over by the ambulance service at the scene and deemed not to require A&E treatment. Having arrived in police custody and been detained, he spent a couple of hours in a cell before reporting that he was passing blood in his urine. A quick transfer to hospital lead to A&E doctors suspecting a kidney injury. They proposed various tests, but one of them involved the patient being injected with a dye that would pass through his kidney and would show on a CT scan whether or not he had a kidney tract injury. He declined this test. Over a period of several hours, no fewer than four doctors attempted to persuade the man to undertake the test, whilst assessing his capacity to take this decision. They pointed out that if the injury that they suspected had occured and was sufficiently serious, he was facing the prospect of kidney failure and deterioration that could lead, ultimately, to his death. Where someone is proposing to exercise their right to take a decision with such serious consequences, it would be necessary to ensure quite a high threshold for their capacity to take that decision. If someone had taken this decision whilst intoxicated and clearly unable to understand the consequences of it, a lack of capacity could be declared. However in this case, the patient was not intoxicated by drugs or alcohol, was not suffering from a head injury or any health problem that may affect his cognitive functioning and he had no history of mental illness. Doctors were satisfied that he had capacity.
So the custody officer had a fit: here was a man, under arrest whilst potentially injured in a way that means he could quickly deteriorate with kidney failure and die, returned to his custody area with a written care plan from the A&E doctor recommending he be constantly supervised, allowed “best rest” and that with any further deterioration in his condition, he should be returned to A&E if still under arrest. He immediately took advice from the police surgeon service, to say “He declined all treatment and he’s back here: what’s your advice about his ongoing detention in custody?” and the doctor answered, “He’s unfit to detain in the cells unless he’s been treated, call and ambulance and take him to A&E.” So we’re now going around in ever decreasing circles: what is going to happen in A&E? He’s just returned from there having spent three hours declining medical treatment he’s entitled to decline. What is the purpose of taking him back there so quickly? It was fear that unless we did, it could be argued that we had allowed his condition to deteriorate and somehow be responsible for the consequences. There are only two questions to ask in this situation –
- Does his declining treatment still render him unfit to detain in police custody? – in this case it did, but in other cases it would not. I recall a man who we thought had broken bones in his hand in a fight from which he was arrested. He declined medical care, so he spent a few hours in police custody being dealt with and he went for treatment after being charged with assault. Broken hand confirmed. << The point here, was his life was not at risk whilst he went untreated.
- Irrespective of the answer how do you discharge a duty of care? – we can’t just sit in the A&E waiting room with a man who has been seen “just in case” after he’s lawfully exercised his right to take an unwise decision.
The urge was, to release from arrest on police bail whilst giving strong advice in writing, that he return to A&E for treatment and that if he chose not to do so, that he go to a place where he was with other people who could keep and eye on him and that if he or they perceived any further decline in his condition, that he call 999 for an ambulance. And that is what we decided to do.
But what if a person was injured, and arguably lacked capacity? Again, this is not an example related to functional mental illness, but when I was a sergeant, my officers detained a man to prevent a breach of the peace who was running about making threats after himself having been head injured in an incident. He was intoxicated, although not paralytic and because of the head injury removed to A&E. As soon as he was escorted in by police and paramedics, the triage nurse turned him away after giving him a “once-over”. He was formally banned from that department after causing problems there and assaulting staff. Because his injury was perceived not to be life-threatening, he was being turned away … great! A dash across Birmingham to another A&E from which he was not formally excluded and they triaged him. Whilst waiting in a cubicle for treatment, he became verbally outrageous and declined to calm down and stop being disruptive. He attempted to bolt from the cubicle a couple of times and had to be restrained, he became threatening and abusive to nursing staff and the junior doctor who came in. So we were asked to remove him, because he was instructing them where to stick their medical care. When I asked, in light of an as-yet undiagnosed head injury, whether they believed he had the capacity to decline treatment they just laughed. They laughed less after all their names were taken and my telling them that their refusal to answer the question was going on the custody record and that they should familiarise themselves with the Christopher Alder Inquiry. But if it was the correct decision, what’s to worry about? We were asked to leave.
We knew this bloke’s name, but not his address and had no method of contacting relatives. We also had three options –
- Try a third A&E department, which was many miles away;
- De-arrest him and let him go on his way, whilst intoxicated, head-injured and a risk;
- Take him to custody, get him seen by an FME and keep him under constant watch until the position changed.
The custody sergeant had a fit when we suggested he be detained. “But he’s got a head injury! What if he dies in the cell?!” It is a legitimate concern. But he’s been seen by two different A&E departments, he’s violently and abusively declining treatment, so option 1 seemed fraught with futility in addition to there being very real risks associated with driving many miles with head injured, aggressive men in a police vehicle. Option 2 was unconscionable because he would either get himself hurt, hurt someone else or collapse. Option 3 seemed like the least worst option in the circumstances. It means he’ll actually be seen by a Doctor, kept under supervision in a way that is guided by that Doctor’s advice; he can also be re-seen at intervals by a doctor or nurse, if required – any suggestion that he is becoming unwell, 999 ambulance back to A&E with a revised set of circumstances. What happens if there is an adverse event after option 1 or 2 – potentially very massive criticism; after option 3 it could be argued “you tried you best, got him to a medical professional and kept him constantly supervised until the risks could be re-evaluated.” In the end, after four hours in the cells, he sobered sufficiently and was taken to the second A&E where received treatment.
THE LEAST WORST OPTION
The main lesson of my career: policing is about choosing the least worst option from a range of imperfect choices: it is not ideal that patients decline medical treatment or are refused it by NHS staff for whatever legitimate or illegitimate reason. You are where you are and you police what is in front of you, not what should be in front of you or what you’d prefer is in front of you – sometimes, discharging a duty of care may be better done by keeping someone in custody, calling the police doctor or an ambulance to custody and keeping someone supervised. To have thrust the head-injured man out of the police station to wander abroad on his own would have been seen as far more negligent in the circumstances than to call healthcare to custody and try your best. Sometimes, that’s all you can do.
Update on 01st April 2015 – since writing this article, a new Code of Practice has come into effect in England. It doesn’t substantially alter the post but certain reference numbers have changed. My summary post about the new Code of Practice (2015) is here, the new Reference Guide is here and the full document is here. The Code of Practice (Wales) remains unchanged.
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