“The threat of detention must not be used to induce a patient to consent to admission to hospital or to treatment.”
— Code of Practice to the Mental Health Act 1983, paragraph 4.12.
In a sense, this post is about something that is none of my business really … not something for the police. But it occurred to me that it may be worth explaining “de facto detention” to those of you who have not heard the phrase. This arises from the recent episode of Bedlam, the documentary series currently showing on Channel Four. I wasn’t able to watch the show when broadcast and as I caught up the following morning and there was a point 34mins in where I did an involuntary exclamation of “No!!!” and the dog jumped up in the air.
Voluntary patients on mental health wards are free to come and go as they please and we met two of them: Dominic and Rupert. Although a hospital’s policy may require patients to inform staff that they are going out, it cannot require them to ask permission because they are not detained. Moreover, patients should not be placed under duress to enter hospital or remain there on threat of being “sectioned” if they refuse. This is laid out in para 4.12 to the Code of Practice to the MHA, quoted above.
Well, 34 minutes into Bedlam we were watching a case conference meeting with Rupert and I’m not the only person who thought he was placed under duress to maintain his voluntary status.
Rupert had left the hospital the previous day, supposedly for an hour and was reported missing to the Metropolitan Police when he failed to return on time. Staff on the Triage Ward at Lambeth Hospital were talking openly in the documentary about him having “leave” and we heard that he eventually returned to the unit eight hours after he was originally due to do so. Subsequently a meeting took place with the responsible clinician –
It was during this meeting that I caused my dog to jump – I was left with the very clear impression from this discussion, that unless Rupert set aside his right to take certain decisions for himself, he would be “sectioned”. Those words were just beneath the surface of the conversation we heard, but it was right there.
Now there has been some debate about this. Blogs began to emerge covering issues arising from the show saying the same thing – that a de facto detention had occured, arising from duress. But the debate that followed these observations surprised me even more, bearing in mind that we’re talking about the coerced detention of some very vulnerable and complex people.
Apparently, all this stuff about diagnosis, behaviour and mental health is quite difficult to shoe-horn into the legal framework we have ……… a tweet chat with the mental health trust concerned on Friday lead to the medical director saying that “it shows how difficult certain aspects of the MHA are in reality” ……… one clinician offered the view that the MHA deals with complex uncertainties and that a comparison I made with the police being very clear about when people are “arrested” or “not arrested” and what people’s rights are whilst detained was only viable because it’s always very clear whether or not someone has broken the law.
I admit to being simply gob-smacked.
I’m not trying to over-egg this: I was sitting in my house, just speechless at the thought of it. The casual way with which the detention and rights of a vulnerable person were being debated after the dismissal of concerns raised about whether statutory guidelines were breached. Stunning. It is important that I put on record the potential for the editing of the programme to have affected how the interaction came across and also relevant to point out that the MH trust state they had full editorial control.
So let’s put this another way — the police deal with detention and coercion every day, including during ambiguous circumstances. Can you imagine the outcry if it was seen on national television that the police had placed a vulnerable person under duress in order to have them succumb to a process that the police thought best but which was not supported by any legal framework that assured them their rights? We’d be pilloried; and rightly so.
You will recall from a previous occasion that section 5 of the Mental Health Act affords doctors and nurses the authority to detain patients in hospital for full Mental Health Act assessment involving an AMHP. Doctors may hold patients under s5(2) for up to 72hrs and you’ll remember that prior to the case of Rupert, we saw Dominic detained under this provision. Nurses may hold patients under s5(4) for up to 6hrs. Both mechanisms lead to an Approved Mental Health Professional being asked to co-ordinate a Mental Health Act assessment.
Of course in our mental health system it is the AMHP who is legally warranted and makes the civil liberties decision about whether an application will be made that legally detains another human being. By seeking to ensure a hospital stay continues on a “voluntary” basis, having implied that a decision to section someone would follow, the patient has been persuaded to agree to ongoing restrictions on his liberty. He remains a “voluntary” patient but is not allowed to leave. << De facto detention. This is something that is “repeatedly picked up by the CQC.“
Doctors do not have the legal authority to section a patient – they may only ever recommend it and whether that recommendation is accepted is a matter for the AMHP. Of course, the AMHP was never involved in the situation because no Mental Health Act assessment was ever arranged, no holding power having been used. Had the patient been detained under s5(2), as Dominic had been, an MHA would have been required.
But in the end, these issues actually can become a matter for the police. Remember the incident about seven years ago that I wrote about where nurses had been put in the position that arose here of having a patient who can’t leave, but isn’t legally restricted? Those nurses started ringing the police when a female patient they were managing starting causing damage to the ward but in the absence of a clear legal authority for holding her, the question of legalities starting pointing towards the NHS staff. Well, what if Rupert the “voluntary patient” had then changed his mind about the “leave” he agreed not to have? Remember, it’s not leave at all – he’s free in law to come and go as he pleases if and until a DR or nurse applies a holding power; and given what had been discussed, are we not now in a state on confusion?
Had there been a confrontation, I wonder where questions of assault or damage would have pointed if the police had been called?
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