Where an AMHP has made an application for the admission of a patient under the Mental Health Act to hospital, they will often seek police support to safely achieve admission where patients indicate they will resist admission and detention. Where do police officers get the authority to detain and convey patients and perhaps crucially, to use proportionate force in achieving this?
There are a couple of barriers to easily understanding this frequent question and I’ve had it posed a many, many times including twice this week alone and I’ve only just realised I hadn’t written a specific blog on it so this one is dedicated to west / central Birmingham, where I began my career and learned exactly how little I knew about policing and mental health!
The barriers to a clear understanding arise because –
- Nowhere does the Mental Health Act specify police officer’s responsibilities in the scenario of a resisted application for a patient who is not yet admitted.
- Nowhere does the Mental Health Act talk about the use of “reasonable force” in a way that is as clear, for example, as s117 of the Police and Criminal Evidence Act 1984.
Where an AMHP or Nearest Relative (NR) has made an application for the admission of a patient under either section 2, 3 or 4, the effect of this application is described in Section 6 of the Mental Health Act –
- “An application for the admission of a patient to a hospital, shall be sufficient authority for the applicant, or any person authorized by the applicant, to take the patient and convey him to the hospital.”
The bold in the above is my emphasis: this is where police officers derive an authority to detain / convey, if they are requested to do so by an Approved Mental Health Professional.
A condition of legal custody emerges after the application, by virtue of s137 MHA, which states:
- “Any person required to be conveyed to any place shall, while being so conveyed, detained or kept, be deemed to be in legal custody.”
- “A constable or any other person required or authorized to take any person into custody, or to convey or detain any person shall, have all the powers, authorities, protection and privileges which a constable has within the area for which he acts.”
So the question arises about when AMHPs or applicants should ensure the detention and conveyance and when the police or paramedics become involved in supporting that process.
There are a few points worth making about section 6 and the “delegated authority” to detain and convey.
Firstly, I would argue such authority should always be given in writing – this is alluded to in the Code of Practice to the Mental Health Act, which talks in para 11.17, about AMHPs “providing provide the people who are to convey the patient (including any ambulance staff or police officers involved) with authority to convey the patient. It is that authorisation which confers on them the legal power to transport the patient against their will, using reasonable force if necessary, and to prevent them absconding en route.
This is important: without a properly delegated authority, police officers and others have no legal authority to detain / convey. The Code of Practice is statutory guidance that should be followed unless there are “cogent reasons for departure”. << This is a phrase from the House of Lords case which ruled on the significance of a Code of Practice.
Secondly, the applicant for admission – whether it’s the AMHP or the patient’s Nearest Relative – cannot compel another professional to accept their delegated authority. So no-one can force the police or paramedics to detain / convey. And this is where “local protocols” come into it and it all starts to get potentially very difficult!
Your local area should have a conveyance agreement, between the NHS, the Police and local authority about how conveyance gets done in all the predictable scenarios. This will include compliant patients, passively resistant patients and aggressive or violent patients. It is the responsibility of Clinical Commissioning Groups to ensure that transportation arrangements for their populations are properly commissioned, usually through the NHS Ambulance Services, but they could include private providers for some specialist kinds of conveyance.
The protocol should lay this all out and should cater for how the admission of resistant or aggressive patients is achieved, where they have been legally detained and I have written before that the management of resistance and aggression is not just a role for the police. The first reaction to any level of resistance should not be the police or threats of the police. If de-escalation is the watchword of mental health care, we can just proceed straight to the final tactic!
PASSIVELY RESISTANCE PATIENTS
Passive resistance is a phrase used in police training to describe people who are resisting a course of action, by doing nothing – sitting still, refusing to stand, verbally resisting, etc., etc.. I’m sure other professions may have different terms for this kind of resistance. Where such a situation applies to a patient for whom admission is sought and to whom section 6 applies, how do we navigate those waters?
I have argued that assessment of RAVE risks are key – this is my mnemonic for attempting to determine what is instinctively a “police job” and what is not (yet) a police job. It means –
- R – resistance
- A – aggression
- V – violence
- E – escape
RA should be considered first for de-escalation and this may be better done by non-police professionals – I know that many may contest this and say that the mere presence of police officers in uniform is “motivating” in the sense of presenting an implied consequence to ongoing non-cooperation, but I say two things. Firstly, I don’t mean here that it may not be necessary to have the police hovering in the background in case things escalate. That may be perfectly sensible depending on the situation or the patient. Secondly, it is at least arguable that the introduction of uniformed officers could be aggravating – certainly the Alzheimer’s Society caution against this in some situations because it present extra stressors and unfamiliarity to patients who may be acutely unwell. All cases on their individual merits.
VE are very obviously police tasks – the management of violence creates that statutory imperative to prevent crime, including against NHS professionals and active attempts to escape do likewise. When things have reached this stage the proportionality of involving uniformed officers changes because the dynamics of the incident have changed. Very obviously, RA can escalate to VW and that is something that should be carefully considered when thinking about whether to introduce the police to a scenario. All cases on their individual merits.
So what is there to say about NHS or social care staff navigating the RA-type scenarios? Well, I’ve heard interesting debates about whether AMHPs or paramedics could / should / would put their arm around a patient or apply a flat palm to a patient’s back and provide a very limited amount of force to attempt to move a patient by way of “active encouragement” whilst providing verbal instruction AND reassurance.
An AMHP told me earlier in the year that they would be reluctant to even touch a detained patient in case an assault was alleged and that this was not the case when they began their careers twenty years previously. I replied, “Even though the law that the police would use to move a patient with low level of physical encouragement is the very same law that you would use? What you’re really saying is you would just prefer the police to take the assault allegation against the officer than against you?”
What about “proactive blanketing” by paramedics? Incidents involving elderly patients who may have additional physical frailties and who are passively resisting are not, I would suggest, situations where we immediately want to see force being used by paramilitary looking police officers. There surely could or should be something before this? I have seen some practically minded AMHPs and paramedics getting hands on, professionally and responsibly managing patients into chairs and pro-actively blanketing them. Is this not a more dignified way of managing vulnerable people when they are ill? We were hovering nearby in case things escalated.
So there will be difficulties in discharging section 6 scenarios – not least when resource issues enter the debate! But we have seen and we continue to see, situations where absolutely no amount of physical force being used is contemplated by AMHPs or paramedics and let me be clear about what I mean: no-one is arguing for actively resistant patients who are lashing out to be managed by social workers. No-one is saying people should risk being assaulted where those risks is heightened beyond the risk that any of us could be assaulted at any time.
I am arguing that NHS commissioning managers should think about the implications of all coercive force being a perceived monopoly of the police, in disregard to the will of Parliament who did not make it a police responsibility and unlike the Irish Dáil which legislated in such a way as to mean that the British police cannot be legally compelled to coerce.
As such, some things are very clear:
- The police can use force to compel the admission of patients – section 6 MHA.
- The police cannot be compelled to compel the admission of patients – section 6 MHA.
- So that means whether they do so, is about properly negotiated agreements which take account of patient dignity, welfare and the particular roles that agencies can bring to coercive care – Chapter 11 of the Code of Practice to the Mental Health Act.
And if you haven’t got properly negotiated arrangements for detention and conveyance, you’ll find that the shades of grey in this legislation cause difficulties. This is why it’s a matter for commissioning and provider managers in the NHS as well as senior operational police officers to get round a table and get it sorted.
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