I’ve been thinking since the weekend about the recent judgment of Webley v St George’s (2014) the subject of my most recent post. I’ve come back to it again because the more I’ve thought about it, the more it raises a whole host of problems of a legal and practical kind.
I want to explore them here, so we not only maximise the chance of avoiding such an outcome again, but also so that we consider the potential for managers to plan around this whilst we continue to debate what role our police should play in our extending mental health system.
If you haven’t read the previous post, please do so before continuing this one, otherwise it may not make sense! And this post is not going to be an easy read, for some of those affected by the case’s implications!
Some of the legal issues that I see, which would benefit from closer examination —
- The A&E Department’s legal duty to accept responsibility for MHA patients who are liable to be detained – Mr WEBLEY was subject to an application for admission under s2 MHA. He was not (yet) an inpatient having not (yet) arrived at Springfield hospital where he was due to be admitted. This was unavoidable: an unexpected medical emergency made it absolutely appropriate in the opinion of the paramedics overseeing his medical wellbeing in transit that he be taken to A&E.
- Accident & Emergency departments are under absolutely no duty whatsoever to accept responsibility for the legal detention of patients where that legal custody was initiated by others. Had a slightly different version of events panned out, they almost certainly would not have done:
- Imagine a patient who had been detained by the police under s136 MHA and was being taken by police and ambulance to a Place of Safety at Springfield hospital, but again diverted to A&E because of an unexpected medical emergency, then would they have accepted legal responsibility for that patient pending assessment by a DR and AMHP?
- I submit they would not have done so and would be under no duty to do so – so why did they do it here?! Having discussed this with a good friend who is a security manager in an NHS acute hospital, he initially thought that security accepting the detention was right and proper, having reflected, he emailed to say he saw my point! – why would you do it, if you were an A&E department when you had no obligation whatsoever to do so?!
- The police “further delegating” authority under s6 MHA to detain and convey – the Metropolitan Police were delegated the authority by the AMHP who made the application, the right to detain and convey to Springfield hospital. Accepting that no AMHP could or would object to 999 services reacting as they saw fit to a medical development, once the patient arrives in A&E, they remain in police custody under s6 because the AMHP has delegated to them, not to anyone else.
- Would the AMHP delegate to hospital security whilst in A&E if told of the circumstances and given the option? – maybe, but maybe not. Some who have commented on social media have suggested they would be very unlikely to do so.
- Do the police exercise unilateral authority to make that assessment on behalf of the AMHP without consulting them? – probably not. Again, suggestions today have suggested that they could not and this particular point of law was not under debate in Mr WEBLEY’s case.
- The AMHP may have delegated authority to the police in this case – they may have delegated to nurses or paramedics in other cases – but they, the AMHP, remain responsible for the overall detention / conveyance. So I submit that the duty AMHP should be re-contacted, told of the developments and afforded the chance to get involved again – even if this is via phone because they’re at the next job.
In reflecting on this case, though, you can see a whole stack of considerations that are about organisations avoiding the lion’s share of risk or liability. A&E seem to have put themselves forward to accept responsibilities in areas where they simply could have said, “No”. I wonder that this case makes it more likely that they will say “No!” in future? This would mean, in such cases where A&E exercised that right, the police being expected to remain for protracted, indefinite periods of time whilst they re-contact the AMHP and try to negotiate an outcome that releases them. What chance would there be that the mental health trust would despatch nurses to A&E to ensure the patient’s ongoing detention? I would suggest there is little chance, because the patient was not yet an inpatient.
In fairness, if someone had been admitted to a mental health unit and suffered a medical emergency shortly after being accepted there as an inpatient, nurses would have accompanied them on the ambulance and they would have been there in A&E, ensuring they remained detained. Whilst A&E security may have supported this process, given the less secure nature of the environment, it would still then been a legal detention led by the mental health trust, and only supported by A&E. But that then raises the issue of why the legal position in which a patient happens to have a medical emergency, affects the care arrangements that can be enacted, given that everyone in the process would agree that the situation relates to: a patient with assessed mental health difficulties; a patient who is subject to legal frameworks because of their health problems; a patient who poses a certain kind of risk to himself, etc.. The only thing that is different in this case compared to a similar one that may have resulted had the emergency presented itself thirty minutes later, is the ability to argue legalities.
The AMHP was of a view that authority to detain / convey should be delegated to the police. On the police’s part, they had agreed to escort someone in an ambulance from Wimbledon police station to Springfield hospital, which is just over 3 miles by either road you would choose . It would have taken half an hour with the administration responsibilities at either end. Had the AMHP said, “Oh, and when you get to hospital, we need to wait an indeterminate length of time” the police may not have agreed to accept the s6 authority, bearing in mind that they were under no specific obligation to do so. Yet a diversion to A&E whilst en route to Springfield, does amount to them becoming involved for an indeterminate period in ongoing healthcare management. Some would ask: is this a role for our police service?
And guess what all of this debate about?! – organisations: their resourcing issues and liabilities. It is therefore not about Mr WEBLEY or patients like him who should be at the centre of our decision-making. There is an extent to which it doesn’t actually matter who is keeping patients safe in these circumstances as long as someone is – but the reality of our developing interface is the need to see organisations working more closely, in partnership. << This is the phrase we hear when others want to see greater police commitment to certain issues: I submit it is a two-way street! Few managers in any policing, health or social care agencies will have sat down during discussions to ask the question: “Who looks after the detention of patients in A&E if they are diverted there having become unwell after the MHA application but before arrival at the identified hospital?” and everyone will feel it unfair and unreasonable if the fingers point at them.
I suspect we just haven’t really thought about this: and since I anticipate that this case will make A&E reflect upon the extent to which the put their arm into a mangle, it will then fall upon the police to ensure people’s ongoing security – thus further criminalising the entry process to our mental health system – unless we do think about it. The only way around that is to consider in advance of these kinds of events what the solution might be. I wonder whether police officers might ask, ahead of accepting s6 authorities, “If we get diverted to A&E and it looks like we’ll be there for hours, what’s the plan?”
Then we’re straight back to the very same dilemma for AMHPs that we see in other areas of their work: we see it when they are undertaking assessments in private premises, or where patients who are passively resistant are refusing to consent to admission. AMHPs are often backed up professionally by no-one at all in the important, legal work they do – responsible for everything, whilst having control of nothing. They are often spinning plates, coordinating multiple statutory duties at once with only one of them on-call out of hours. I really hope no AMHP sees it as a criticism any of them to suggest that if the police were to put in a call to say, “We had to divert to A&E and anticipate being here for hours”, there will be little support on which an AMHP can draw. The answer is likely to be, “Sorry, there’s nothing I can do.” Whether that AMHP would think it acceptable for the police to delegate further to hospital security pending further assessment / treatment of the patient, I don’t know.
What I do know is this >> A&Es are under no particular duty to do what was done in Webley v St George’s and to be frank, I wonder why on earth they’d ever consider it!
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