This post is about the circumstances in which it may be necessary for paramedics or A&E to ask the police to instigate detention of a person under section 136 of the Mental Health Act. That said, it will be relevant to police officers in understanding how to react to the request!
In both policing and in healthcare, it is generally acknowledged that prevention is better that cure or an effective response – we’d all rather prevent the disaster, than deal with it effectively. It saves time and effort, it also prevents the unnecessary suffering of either patients or victims. A few incidents give rise to this post, about the police intervening in a preventative way in situations that may well be led by our health colleagues, but into which the police will eventually be drawn if we do not proactively assist.
Many scenarios start in the same way —
The ambulance service is called to a situation where they are dealing with a patient whose mental capacity or mental health is in question. Perhaps it is someone with an established mental health diagnosis who is in crisis, has self-harmed or is asking for help; perhaps it is someone who is intoxicated through drugs or alcohol or has suffered a medical condition or injury which gives rise to incapacity. In the latter case, I’m thinking of things like the elderly man who had a serious urinary tract infection, so severe it had affected his cognition and ability to look after himself. Or perhaps it’s a very drunk person or a crime victim with a head injury.
We know that paramedics can sometime be found spending hours patiently and often successfully negotiating with people to persuade them into the back of an ambulance for removal to A&E. We also know, that once those patients arrive and the paramedics have long since moved on to the next 999 call, people have time to think again about whether they will remain where they have been persuaded to go.
IS IT NECESSARY?
In considering whether the police detaining someone, either under section 136 or a for an offence, paramedics and officers need to ask themselves not only whether the use of legal coercion is necessary now, but also whether it is necessary to ensure that the person detained remains engaged in the assessment or treatment process to a conclusion. “Necessary” does not just mean “necessary to start the process off” but also “necessary to make it end well.” This kind of dilemma was at the heart of the IPCC’s criticism of Metropolitan Police officers in the Nicola EDGINGTON case: do I need to coerce someone into a process they appear willing to engage in? Well, if you need to guarantee they see it through to the end, then you may do!
Obviously, being detained by the police does not mean that paramedics or A&E staff can force whatever treatment they want upon patients – people retain a right to take most decisions for themselves, until an appropriate legal framework has been applied to determine otherwise – but it does mean that people can be lawfully safeguarded until appropriate assessment has occurred. After that, people may well be at liberty to take unwise decisions.
Someone detained by the police, for example following an episode of self-harm, may not initially wish to attend hospital or undergo assessment under the Act. If detained under s136 because of immediate concerns for welfare, that decision becomes one for professionals. So if paramedics are attempting to persuade such a person to travel with them to A&E and are concerned about whether they will go or whether they will remain there once arrived, it is perfectly legitimate to ask police officer to consider the case on its merits to apply section 136.
In terms of assessing whether that action is necessary, officers need approach the decision with care. No doubt, an audit trail will be made by the ambulance service about their views and concerns and the requests made of other agencies – this is merely competent professional practice.
So we need to ask ourselves three questions —
- Will this person attend A&E without being detained?
- Even if they will, is it likely they will remain engaged to the end of the process that follows?
- If the person did disengage and leave, how will any subsequent events be judged in light of the decision I am taking now?
It is equally valid and necessary for A&E staff to ask themselves the question where people are brought in by paramedics or where they have self-referred for mental health reasons – will this person remain here of their own volition and what will I do if they try to leave?
If that answer to the last question is “ring the police and ask them to find the person and detain them section 136” then I’d like you to ask yourself the question now about how likely it is that the person will try to leave? If you think it very likely, and they would be at significant risk, I’d prefer to know now and have a conversation to prevent the development of a high-risk missing person inquiry.
PARAMEDICS AND A&E STAFF
So my message to our emergency care colleagues is this — when you are dealing with patients who are suffering from a mental disorder, who appear to be in immediate need of care or control, in their own interests or for the protection of others, you are quite entitled to ask police officers to exercise their authority under section 136. It is then for the police to justify whether or not they do so.
I recall a recent case where A&E rang to report an “extremely suicidal” woman had left A&E, whilst part way through the MHA assessment process. She had been taken there by the ambulance service and without any police involvement. When officers first took the details to start the high risk missing person enquiry, I recall thinking, “If you had just rung about an hour ago, asking us to 136 this lady, I wouldn’t have brought policing in my area to a halt in order to find her before she seriously hurts herself with most of my team running around the area checking addresses and searching for her.” I also wouldn’t have subsequently had to manage the practical difficulty arising from the fact that she was located in her own home to which I could not secure lawful access. I couldn’t get an AMHP and DR down there to do an MHA assessment, either!
But of course, paramedics and A&E staff have mixed experiences when they ask the police to do this sort of thing – it is precisely because they’ve asked in the past and been turned down that they are often reluctant to ask. Of course, some of those decisions will have been correct, but we can’t be arrogant enough to insist that they all were.
The above anecdote shows this. No police officer in Britain is going to like the idea of going in to an A&E department and exercising a detention under section 136 MHA, because it immediately gives rise to a load of questions for police supervisors, in particular —
- Firstly, can I even use section 136 in Accident & Emergency? – there are loads of debates about secure doors, about the phrase “place to which the public has access” and about rights of access and egress, to and fro.
- Secondly, why can’t hospital security attend the department and ensure the person does not leave – can they even do that?
- Thirdly, if section 136 is used, will it immediately mean A&E wish to see the person removed, either to a psychiatric place of safety or to police custody – we know that there could be certain problems with removing some people to custody and there are issues in some areas with NHS PoS provision in mental health facilities.
So let’s knock down the myths one at a time —
- Yes — A&E is a place of safety (because anywhere can be a PoS) but not one that has been set up to detain people against their will. Neither nursing nor security staff in that department will have the training, skills or even the legal authority to detain people against their will.
- Yes — you absolutely can use section 136 MHA in an Accident & Emergency department. This was part of the ruling in the Sessey case so we should now stop pretending that we cannot do so far various spurious reasons. Whether you do use it, will be a different assessment, but you certainly can rely upon it if you feel you need it.
- No — hospital security cannot just sit on people or detain them, unless there is a criminal offence and or unless they can argue that the situation is covered by the Mental Capacity Act, which may be rare.
- No — it won’t automatically mean, that if section 136 is exercised that you must remove the person to another location. The normal decision-making should apply. If there are RED FLAGS, stay put, if there are not, ensure you can be accepted elsewhere before you move anywhere and take advice about the safety of the conveyance during transfer.
So all this should bring us back to making a decision which puts the needs of the patient at the heart of our thinking.
Winner of the President’s Medal, the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions expressed are my own – they do not represent the views of any organisation. (c) Michael Brown, 2013
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – www.legislation.gov.uk