This post is about trying to ensure a non-prescriptive framework for how police officers should consider whether or not to detain someone under the Mental Health Act when it is legally possible to do so, as opposed to helping people access relevant services without detention. So it is about two, frequently opposing philosophies: the principles of autonomy from the least restriction and of security from necesary control.
We know that where (UK) police officers encounter individuals who actively want to access some kind of healthcare support for their mental health problems, they traditionally have four options. They are not always available because legal powers vary between public and private places and because 24/7 Crisis Team services usually only respond to patients already receiving mental health care.
Nevertheless, the four options are —
- Advise the person to contact their GP (primary care), in due course
- Advise the person to contact their MH CrisisTeam (secondary care), if one is available
- Assist someone is accessing Accident & Emergency (urgent, unscheduled care), more or less immediately
- Use legal provisions in the Mental Health Act 1983, if appropriate.
It does get us into all manner of problems where we think something needs to happen straight away because you have to decide whether to use the Mental Health Act in order to remove someone to a place of safety or whether to point them towards A&E or accompany them there. This is a remarkably complex decision, as the rest of this post should explain. It is made difficult by some important principles of law that creates a tension for the officer who might detain someone: a tension which you could almost always argue remains unresolved no matter which decision is taken.
The most high-profile example of this decision – at least in my mind – was the decision taken in the case of Nicola EDGINGTON in south London in October 2011. Metropolitan Police officers had accompanied her to an A&E deparment on a voluntary basis, without detaining her. It must be said, in the first instance that it was questioned whether the officers could have legally detained her at all, having first encountered her in a private place. That said, Nicola having exercised a free decision to move from that private place to A&E she then attempted to leave and the argument was suggested that Metropolitan Police officers should have detained her under s136 MHA at that point, particularly because she had a previous history of homicide and everyone accepted that she was worried she may kill or hurt someone.
She was not detained. Having then remained in A&E for further mental health assessment she was admitted to a psychiatric unit as a voluntary patient and moved to a ward. She then absented herself from that location and travelled to Bexleyheath where she attempted to kill Kerry CLARK, and then did kill Sally HODKIN. I have previously written about this case if you want more detail on it and read about the IPCC investigation that looked at this decision-making. Suffice to say, I’m now waiting to read the independent review of Nicola’s treatment and care when it is published by NHS England.
So we know from this and other cases, that police decisions to leave individuals in healthcare settings who may be a risk to themselves or others is precarious business. But an ‘err on the side of caution’ approach directly conflicts with principles of handling people in the least restrictive way. The ‘least restriction’ idea is a core principle of the Mental Health Act Code of Practice, outlined very early in that document and referenced through-out. Any conversation about a decision to use mental health law – or about the particular manner in which it is applied – doesn’t last very long before officers are reminded about the need for least restriction. It is an important part of the ethical application of the MHA, that restriction and restraint is only used when it is absolutely necessary to do so and the no more coercion and control is used that is absolutely necessary. Anything less could represent a human rights violation.
So at the heart of this dilemma and the method by which any tension is managed is the following question: Why would a police officer legally detain a person in order to compel that person into a process that they are willing to enter? And the answer for me lies in the definition of the word ‘necessary’ and in the ability of services to make sure in some case that someone not only enters a process of assessment, but also finishes it.
WHAT DOES ‘NECESSARY’ MEAN?
Police officers are used to considering the word ‘necessary’ because every arrest made under criminal law carries with it the need for a necessity test, under section 24 of the the Police and Criminal Evidence Act. When I joined the police, we used to talk about ‘arrestable offences’ and if you were suspected of having committed one you could be arrested for it and that arrest would be lawful. The end. So if you knew that an allegation of assault (ABH or GBH) had been made against and you turned up to the police station to have your say about the incident or help the police with their enquiries, you may be arrested. This changed some years ago and it is now a legal requirement for the arresting officer to show why an arrest was actually ‘necessary’, against established legal criteria now made plain in the Act.
So we understand about ‘necessity’ and it’s implied and inherent links to the least restriction principle.
Let me amplify these points with real examples:
Officers encounter an elderly man who is confused and disoriented. Some enquiries reveal that he is almost certainly a missing person from a neighbouring police area and he is out in winter, obviously very cold. An ambulance turns up at the officers’ request and checks him over they state that they need to take him to A&E to get him checked over medically and the police area from which he is missing are telling his relatives he’s been found and his wife and son are now heading to the A&E concerned.
The man is happy to go to A&E and not resisting at all, saying he’d welcome a cup of tea. The grounds for s136 were undoubtedly met: he was “believed to be suffering a mental disorder, in immediate need of care in his own interests.” This is one version of the definition of s136. Was he detained? – NO. Did he need to be? – NO.
Police officers encounter a young woman in her twenties who is asking for help and saying that she “needs to be sectioned”. She wants to be assessed and admitted to hospital for a period of time and has a history of suicide attempts, including a serious overdose and significant injury after self-harm. She has also been considered a high-risk missing person after having previously self-presented to A&E departments and having left in a suicidal state before being the Crisis Team arrived to assess her needs.
Although the woman is happy to go to A&E on a voluntary basis, there is the potential that this decision could change, especially if there is a protracted wait for the Crisis Team. Should she leave, there could be a significant risk to her wellbeing based upon background factors. Could she have been detained? – YES. Was she detained? – YES, because this ensures she remains detained pending the assessment outcome and ensures her various legal rights are in place.
In this latter case, if officers had not legally detained her under the MHA, she may either have been left at A&E and again become a potentially high-risk missing person should she leave; OR officers would have still remained in hospital to ensure she didn’t leave hospital, not having legally detained her. So she would have been detained in fact, but not in law – and I’ll guess that no thought would have been given to her legal rights under s131 MHA or PACE.
So you’re the police officer at the incident and let’s assume that all four options mentioned at the start of this post are open to you as possibilities: you can advise contact with the person’s GP or Crisis Team; or you could offer to assist someone to access A&E or you could use section 136 of the Mental Health Act.
For me, the first three options are only available where risks and threats involved mean that we need to be sure that someone will complete the process of assessment. This may include suicide risks, someone who has taken an overdose, someone who has previously sought help and then disengaged before being seen in circumstance of some concern that need to be avoided.
Of course, something like street or telephone triage with mental health services may render an instinct to detain null and void so any decision taken must be based upon the fullest available information. But necessity needs to be judged in terms of whether the risks of a person not remaining engaged to complete an assessment are so serious as to need negating. If they are not so serious, then principles of least restriction should mean that sign-posting, referral or voluntary attendance are perfectly proportionate responses to incidents. We all accept and understand that physical injury or illness does not always require immediate A&E attention and so it is true of mental health issues.
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