Imagine the scenario —
A person is detained by the police under the Mental Health Act and removed to an Accident & Emergency department because of injury or illness that prevents them being taken anywhere else. Following assessment of that condition in A&E it is decided that they need to be admitted to the acute hospital for medical or surgical treatment of their condition. This could be for any number of reasons:
Let’s imagine various situations —
Perhaps after detention by the police it is thought that they have taken an overdose of a kind that puts their broader physical health at risk and blood tests in A&E confirm this. Perhaps they were detained and complained of chest pains, necessitating observations in a cardiology ward. There are any number of situations, including head injuries, broken limbs, and problems connected to all manner of medical situations where admission may be indicated.
So far, I have deliberately not specified under which particular mental health law the police were acting when they detained the person.
It could have been —
- Section 136 Mental Health Act – to detain someone at the instigation of the police who is in immediate need of immediate care or control and removal to “a place of safety”.
- Section 18 Mental Health Act – to detain someone who is absent without leave from hospital, either because they have left the hospital without appropriate permissions OR because they have failed to return to hospital when required to do so.
- Section 135(1) Mental Health Act – to remove someone from a dwelling to a place of safety for assessment, but following execution of the warrant of detention, it is thought best that someone is checked out in A&E.
- Section 138 Mental Health Act – to detain someone who is liable to admitted to hospital under the Act or who has absconded from “a place of safety” or whilst en route to it.
What happens if that person then needs admission as an inpatient to hospital? These legal powers have started, certain duties exist to be fulfilled but are being halted by this diversion into acute care.
What do we do about that original objective?
Of course, most people take to A&E are triaged and seen in a relatively short period of time, without being admitted to a ward as an inpatient. It is comparatively very few of us that require hospital admission. Of course, such admission cannot be forced upon a person purely by virtue of their having been detained by the police under the MHA. Three out of those scenarios above do not (yet) involve patients who are fully admitted to hospital under the Mental Health Act and in any event, the Act cannot always be used to force patients to have treatment for medical conditions and injuries. So if the patient in our vignette had badly broken their arm to an extent that it may require an orthopaedic operation, they cannot be automatically forced to have it without their consent.
If a person is admitted to hospital, following our scenario above, it will most usually occur because they have consented to that admission. In a minority of situations it will be because full assessment under the MHA has concluded that admission criteria are met and because the psychiatric assessment is that Treatment Without Consent provisions (contained within Part IV of the MHA) allow that physical / surgical problem to be treated under the MHA.
When that admission occurs, what happens to the originating power of detention and its original objective? —
Following s135(1), s136 and some situations in s138, the purpose is to ensure that a person is seen by a DR and an AMHP for assessment and this could happen on a medical ward, if need be. Such assessment may or may not lead to an application for admission to hospital and that application could be made to a medical or surgical ward. Following detention under s18 and certain other situations under s138 it is to return the person to the mental health unit from which they are missing or within which they are legally liable to be detained.
How do we handle the period whilst the person is still subject to those original laws where they have also consented to admission to a medical or surgical ward? — specifically, are the police obliged to remain in situ, in that hospital whilst medical / surgical treatment is undertaken, pending the person being assessed under the MHA or returned to the mental health unit in which they are liable to be detained?
The first thing to say is, there is no single answer to this situation. The rest of this post is devoted to pushing back against an understandable instinct to make it simple by saying that the police should just stay and sort it out. The second thing to say, is that the NHS does not have one answer on this, either. Practice varies from hospital to hospital, sometimes from professional to professional and answers are offered on the basis of what the NHS believes the law to be, others predicted upon hospital policy. As I have written before, these are not always the same thing and they vary (considerably!) from place to place.
HEADLINES AND PUNCHLINES
Having given away the punchline early on – that there is no answer, specifically – it therefore needs to be considered in local policy and procedure, which the Mental Health Act Code of Practice requires be agreed between the Chief Constable and the relevant health bodies.
You could point out the following —
- Acute hospitals are often not fully integrated into protocols about how the MHA operates, despite it affecting them everyday. In my experience it was always extremely difficult to engage acute hospitals as they see the MHA as a matter for mental health trusts and often don’t attend local meetings.
- You could point out that all of the relevant guidance, statutory and professional, leans away from the police being unnecessarily involved in prolonged sitting-around, with people who have been removed for assessment or detained.
- You could point out that there is a legal ability to ensure the detention on a ward of patients who were originally detained under s135(1), 136 or (some circumstances of) 138 so why don’t the hospital crack on using s135(3) or s136(2), respectively, to detain the person?
- Once a patient is admitted to any general or acute hospital as an inpatient, any doctor can use section 5(2) of the Mental Health Act to detain that person and stop them from leaving.
- But finally of course, there is a legal duty on the police to prevent crime and bring offenders to justice so where admitted inpatients are actively assaultative, there is something of duty around keeping medical staff safe where officers leaving would obviously render them liable to assault.
But here are the two most important legal facts, that give you an unsquareable circle —
- There is no legal duty on a general or acute hospital to accept legal responsibility for the ongoing legal detention of someone originally detained by the police.
- There is no specific legal duty on the police to remain in a health-setting to “guard” people who may or may not leave, pending their assessment or return to a mental health unit.
In other words, you could build whichever argument suits the position you’d prefer to take or the point you’d like to make and no-one will be able to say you’re wrong – but so can your colleagues!!
You now have your unsquareable position – the police don’t want to be sitting in hospitals all day with people who have consented to be there and who pose no more level of risk than any other patient but the hospital don’t want to accept legal responsibility for people who may choose to leave even though they do this quite routinely for people not brought in by the police. The Code of Practice requires cooperation and agreement on how all of this will be managed and it should not be left to frontline professionals to battle it out, case by case. Professionals or even organisations just adopting a unilateral position and saying “that’s the end of it” is just a destructive way for public sector services to work, when actually what’s most important are the effective management of risks, both to the individual who should be at the centre of decision-making and to the broader public. Instead, it usually because a bad debate about organisational resources and organisational willingness to accept risks.
So we need to work out a compromise and a partnership arrangement –
Preferably one where no-one feels that the other is just unilaterally forcing their agenda on the other, especially where that agenda could fall foul of frontline practitioners confident enough to return to legal structures that inadequately bind services together. If we got into a room and talked it though, we would probably find easy common ground on some basics principles to get us all chatting –
- No-one thinks it’s a good idea, to have officers sitting around to secure people who are low-risk, consenting patients to a hospital admission.
- No-one thinks it’s a good idea, for officers to leave a person in a health setting where that person represents an ongoing risk to either their own or others’ safety.
- No-one thinks it’s a good idea, for one public agency to force things upon an other in the absence of a clear legal authority to do so, where a structured partnership agreement could be brokered by managers that actually takes liabilities away from frontline staff.
- No-one thinks it’s a good idea for frontline staff to be improvising their way through these complex issues based upon nothing more than their own professional agenda, with scant regard to that of others.
Here is a (real) situation —
The police detain and 83yr old female dementia patient under 136 late at night in winter. The lady is cold, not appropriately clothed for the weather and disoriented. It is obvious she has other mobility issues. After A&E assessment she is more or less straight-away admitted to a medical ward for elderly adults amidst concerns for her dementia, but also for her physical health. All of this happens after the s136 detention, but before an AMHP and DR can complete the assessments. No-one knows for certain how long she was outside in poor clothing for the weather, she as only discovered “missing” when her family called at her home and found her to be absent and the front door wide open. She seems very frail. Her family has attended hospital and are by her bedside with two cops stood nearby who have been told by the hospital they cannot leave, because the s136 is still active.
What prevents this being left in the hands of the hospital? —
A unresistant, elderly woman who is frail. Her family are there and she is making no attempt to leave and there is no indication she will try. What purpose are these officers serving? Should the lady suddenly decide she does wish to leave, several legal and security options are open. Her family could well be positioned to assist in preventing her from leaving, nursing staff and / or security could do this also. (When I say “do this”, I mean legally speaking.) She is still detained under s136 MHA until the AMHP and DR complete their assessment, and the lady may still be detained there under s136(2) because despite what the hospital may say in tortured legal arguments to the contrary, they are acting as a “place of safety” for the purposes of that particular 136 detention. Even if this argument is not accepted, she is now an admitted inpatient on a ward – any DR may use section 5(2) MHA to keep her detained pending assessment and nursing and security staff may assist with this (legally speaking). Either way, there is a clear basis for acting.
Repeat that scenario but substitute the 83yr old dementia patient with a 24yr old female schizophrenia patient who has self-harmed to such a degree that she has seriously damaged the internal mechanisms in one of her arms. Quite potentially, she needs reconstructive vascular surgery to minimise a permanent loss of movement and dexterity in her hand. She has a history of drug use and violent self-harm, possession of edged implements which are mainly for her own use, but which have been brandished towards NHS staff in various situations. She is detained under a s135(1) warrant and was removed to A&E because of the injuries that were evidenced upon police forcing entry to her flat at the request of her community mental health team. After initial handling in A&E, she has been admitted onto a surgical ward as an urgent case. Full assessment will occur before surgery because she is not fully consenting to the procedure but a view has been taken that she can be detained and then treated under the MHA, because the physical injuries sustained are as a direct result of her mental disorder.
Why would the police not remain initially engaged in this situation to ensure the safety of those concerned until at least the full assessment has been done with a view to detaining the patient under the Act? There are clear duties to keep both the patient and NHS staff safe and the ongoing situation can be reviewed after assessment. For example, once a patient is detained on a medical or surgical ward, the mental health trust will have a duty to provide staff to support the hospital in their ongoing treatment and care. But these kinds of situation need to be thought through in advance and made subject of training and protocols. Apart from anything else, my next blog will make it clear why in the situation of the 83yr old dementia patient mentioned above, I could well be tempted to act unilaterally, in certain circumstances. It might be the only way of discharging those professional responsibilities that often sit with me personally as a duty inspector.
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