There are some decisions at work you can’t just take one step at a time in light of events, you must sometimes plan for more than one eventuality. You have to know before you get to the fork in the road, roughly what you will do as you move in each direction, even though you may not have decided which way you will go when the time comes.
It has always been my impression that this sort of thinking should apply to how we react when patients in hospital say they wish to leave and decline the medical treatment that is on offer to them – most people are legally competent to take their own decisions and, properly informed, can decline whatever they decide they don’t want. Other people, after an appropriate assessment, will not be allowed to take such decisions and will need to benefit from a reaction which puts an appropriate legal framework around them with resources to realise it in a dignified and humane way.
So I’ve always been surprised why we don’t often see evidence of a plan for the fork in the road that leads us down the “declining medical treatment” route, just in case we suddenly hit that fork. Most of the time, that will be easily to formulate: we’re going to let them walk out of hospital and the consequences of doing so are for them as individuals to manage. However, where we are not going to take that approach, we need to think about it and prepare for the reality of what we will do to try and keep people safe: both the patients who may require detention and the operational staff who bear the legal responsibilities for assault or neglect, dependent upon what they decide to do.
THINKING ABOUT SECTION 5
I recently attended an acute medical unit in a hospital to a report that a mental health patient was trying to leave. Upon arrival it was genuinely difficult to have someone establish which legal framework of the Mental Health Act the patient was subject to, if any; and on what legal basis it was being suggested that the police should stop him leaving. We saw that the hospital had already called their security team and the patient was begrudgingly sat in a chair complaining that he wanted to leave with NHS staff currently telling him that he couldn’t. Some police officers that were present in the unit for entirely unrelated reasons had persuaded the man to cooperate just for enough minutes to allow staff to decide what was going on and what might need to happen next.
“So which legal framework is the patient subject to?” I asked.
“He lacks capacity.”
“That’s not what I asked: which legal framework is he subject to? Is he a s2 or s3 Mental Health Act patient, for example?”
“Oh, I don’t know.”
“Why don’t you know, if you’re asking us to assault and imprison him? Can you find out please.”
The patient became helpful, “I’m informal. They can’t keep me here.”
“Is that correct? Because if it is, he’s right unless you do something else.”
“Yes, I think it is.”
“So is the doctor in charge of him proposing to utilise s5 of the Mental Health Act?”
“I don’t know. Should I find out?!”
“If we’re going to start assaulting this bloke, I admit to thinking that would be good!”
It took about 40 seconds to hear someone shout, “It’s alright, he can leave.” And off he went, back to the mental health unit on a voluntary basis as an informal patient. The issue in play had been, he’d taken an overdose and the mental health unit didn’t want him deteriorating in their ward. He’d been moved to an acute hospital and admitted but had expressed frustration and made to leave before the normal period of monitoring and blood testing and treatment would allow the acute hospital to confirm his wellbeing.
So the first reaction to his effort to leave, was to try to stop him, despite no obvious legal framework by which to do so. Not necessarily a problem if that is for a very brief period, just enough to ensure he’s fully aware of risks or for a doctor to be called to consider using s5(2) MHA, if appropriate. But there comes a point where you are at the fork in the road and either have to stick a legal framework around this incident or let him leave. Important not only in terms of the patient and their rights but also in terms of the liabilities of nurses, security officers and police officers that become drawn into de facto detention.
I would love see appropriate advance thought put into this kind of thing: if you’re asking your security officers, nurses or local police to detain someone, on what legal basis will you be making that request? You have to assume, by law, that people are competent to take their own decisions and that they are entitled to make unwise decisions. It is also only a matter of professional courtesy that if you are asking someone to take a legal decision on your behalf, you extent them the courtesy of a briefing that allows them as professionals their own insight into the matters in hand. This is not least because that professional becomes responsible for the assault they inflict and cannot subsequently say, “Oh, the nurse told me to do it.” if challenged.
I decided to blog on this recent incident precisely because it is not isolated. Social media is replete with examples of informal patients telling mental health staff that they are briefly or permanently leaving and staff refusing to allow it on the basis of no legal understanding. Paragraphs 23.16 and 4.12 to the Code of Practice to the Mental Health Act should be things most mental health nurses can quote, in my view.
Incidents of a similar nature also involve the police getting into this sort of thing in A&E departments where patients decide they wish to leave. Such incidents are made more complex by virtue of the fact that section 5 MHA cannot be applied by doctors in A&E departments. Section 5 applies to only to hospital inpatients and A&Es are effectively massive outpatient clinics where you don’t happen to need an appointment. So if someone is in A&E and them leaving is considered problematic in terms of risks to health or mental health, the options are section 136 MHA being used by the police or the application of the Mental Capacity Act, where justified. (Yes, you can use section 136 in A&E – see the Sessey judgement, if you don’t believe me.)
But again, A&E should presume that people are competent to take their own decisions and plan for the fork in the road: if someone tries to leave, will the reaction be to call the police and have them commence a high-risk missing person enquiry? If so, it might be worth thinking in advance of the fork in the road and whether the police being called prior to the critical moment to consider section 136 was actually sensible risk mitigation? All too often we hear of incidents where people who are likely to become high-risk missing patients in need to detention under s136 or Mental Health Act assessment are not considered for police intervention until such time as they’ve gone. And PLEASE don’t wait until they’ve gone and then ask for a “safe and well check” without beginning to think about the clinical and mental health support that those patients and frontline officers will need if and when they find that person, especially if they’re found in a private dwelling.
As many military characters will say – PPPPPPP or “the seven Ps” … “proper planning and preparation prevents p*ss-poor performance”. It’s not the time to be deciding which way we’ll go at the fork if we’ve already decided to start wrestling people back into hospital because of some paternalistic instinct that they should stay there. It should be part of the thinking process as soon as we wonder whether someone is going to stay the duration. As I’ve said with the interpretation of section 136 MHA, you judge the necessity of legal compulsion not by whether it is needed to get someone into a process, but by whether it has become necessary to ensure that someone finishes it.
Winner of the Mind Digital Media Award.