When I read the narratives that unfolded during incidents-gone-wrong, I often find myself thinking “been there – done that – lucky enough that it didn’t go wrong for me.” But not always – I’ve also had an incident go badly wrong and I’ve been left wondering how the hell it was me that became responsible for having to weigh up a fairly blunt set of options to a complex situation that could have been prevented from occurring in the first place. I’ll properly tell that story only many years from now.
Meanwhile, I read about incidents like that of mental health nurse Francis DUFFY – the Independent Police Complaints Commission have undertaken an investigation into “allegations that officers failed to attend an address to detain him under the Mental Health Act” in February of this year. Two days later Mr DUFFY was found dead in his own flat after further concerns were raised. Of course, the punchline of this incident can be quickly reached: officers had no power whatsoever to detain him under the Mental Health Act because in was in his own house – and yet there was still a misconduct investigation into a control room sergeant’s decision-making, albeit she was cleared of any wrong-doing.
Paramedics had attended Mr DUFFY’s home address on the 4th February and were there for several hours attending to various concerns whilst he was heavily intoxicated. The attending paramedic formed a view that he needed to be detained for his own safety yet made no attempt to contact the mental health trust crisis team. She stated at the inquest into Mr DUFFY’s death that in nineteen years she had become accustomed to them saying they would not attend someone who was so heavily affected by alcohol. When I read of that remark, I admit to thinking, “Fair enough!”
I fully appreciate why such doubts would emerge, but I also know why it’s regrettable we don’t push as far as we can. I’ve seen for myself disengagement by mental health professionals and organisations from those of us who are intoxicated whilst vulnerable because of mental distress and it’s not unreasonable to assume that the reaction you’ve had the first hundred times you tried to get such support will be the reaction you get when you call again. But we all know that it can create the perception of indifference if efforts aren’t made to do the right thing. The paramedic called for the police and according to the report in local press made “a request to have him detained for his own safety.”
A disclaimer here – the article I’m responding to does not explicitly state whether Mr DUFFY was known to mental health services and / or in receipt of care from them. Reading between the lines of the Coroner’s recommendations, I am assuming he was otherwise his would not be a case that would need clarification about the crisis team’s role.
POLICE POWERS IN PRIVATE PREMISES
So here we go again – police officers have no powers in someone’s private home unless there is a criminal offence, a Breach of the Queen’s Peace or circumstances where the Mental Capacity Act could be applied to a literally life-threatening situation. Accepting completely that I cannot find anything else on this incident beyond the local media coverage which I’ve linked, above – that news piece reads in such a way as to mean it was always obvious there would be difficulty in an approach that saw the police as the solution to a problem. Whilst he was very intoxicated, that’s not illegal in your own home.
Mr DUFFY had rung the ambulance service threatening to kill himself. It was latest in a long series of 999 calls that had seen him prosecuted for an offence under the Telecommunications Act and he was awaiting an appearance at the local Magistrates’ Court. The paramedic found him intoxicated that day and a post-mortem blood test showed that he was over five times the legal limit for driving. Nothing in the article jumped out at me to suggest there was anything there the police could do that a paramedic couldn’t.
This case shows a particular problem that was further compounded by a decision not to contact the mental health crisis team. We know from the Sessay v SLAM and the Commissioner case in 2010 that in situations where detention under the Act is considered necessary in a private premises, the Mental Health Act offers ‘a full suite of options’ – the judge in Sessay made it clear that ‘there is no lacuna’ in the legislative framework.
So there – it must be true!?
MENTAL HEALTH, MENTAL CAPACITY AND ALCOHOL
What about the alcohol consumption? Well, if I had a pound for every time I’ve heard the line “you can’t assess someone under the Mental Health Act who is under the influence of alcohol”, I’d be stressing considerably less than I am about the bill to get my car through its MOT just prior to Christmas.
Chapter Four of the Code of Practice to the Mental Health Act is often cited in these discussions, but even the Code doesn’t preclude assessment in urgent circumstances. If someone were intoxicated whilst detained under section 136 MHA, then by all means let alcohol wear off if someone is safely and legally detained somewhere. But in this situation, Mr DUFFY was in his own home.
The question has been asked about whether such an amount of alcohol could affect his capacity to take his own decisions – and in principle, it could. Whether that could have been relevant would depend upon some particular specifics that aren’t covered in the article. However, we do know that even if the paramedic had been able to declare that Mr DUFFY lacked capacity to refuse medical treatment, it would have still required additional concerns to allow the police to act on her behalf by removing him ‘for his own safety’. You will remember that section 4B of the MCA requires that in order to deprive someone of their liberty it must be considered the least restrictive way of acting in someone’s best interests and “necessary to provide a life-sustaining intervention” or to do “a vital act to prevent a serious deterioration in their condition.” Whether or not these criteria were met, I cannot say and I make no judgement either way.
I can imagine it both ways ’round and I genuine wonder about the sense in which the paramedic thought Mr DUFFY’s safety was compromised – the word ‘safety’ as opposed to ‘health’ inclines me to think that there were no immediate thoughts about life-threatening risks to his physical health, if we even accept a dichotomy between the ‘mental’ and the ‘physical’. Either way, we do know that if urgent assessment or detention under the Mental Health Act were required, then it would require an AMHP and Doctor to attend the premises. That would be accessed through the crisis team that the paramedic didn’t contact – whilst I can understand why she didn’t, it probably should have been something that was tried.
What we can safely say, taking the description of the incident at face value, is that the police were never going to be the solution in this incident because they don’t have relevant legal powers. This does show, however, the ongoing assumption that the police can coerce people and keep them safe in all the circumstances where we might want them to be able to do so.
Well, we can’t! – and that is actually just exactly how your Parliament wants it. It has always been my view that the law we have is adequate only for services that are not configured as our’s are – we either need to change our services or we need to change our laws. The latter is not going to happen anytime soon and that only leaves one option – which will need to be paid for!
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