This is one of those BLOG posts that I feel I’ve written before – but I keep getting queries and long email threads to read from various professionals who’ve clearly been engaged in an epic-email debrief of some previous melodrama where everyone thought they were a barrister. The questions relate to frustrations about how to safeguard someone in an A&E department – this stuff just never seems to abate. Of course, many people self-present to A&E in distress and we know from this year’s Care Quality Commission 2015 report Right Here, Right Now that around 5% of all patients in A&E are there for mental health problems.
We’ve seen the expansion of liaison psychiatry services and mental health nurse support to their A&E colleagues. We also know that the ambulance service, bereft as they are of referral pathways to specialist mental health services, have no other option in many areas than to take people in crisis to A&E and difficulties can arise for all concerned where patients then wish to leave the department without waiting for the completion of any assessment or admission process. We also know that CrisisTeams often encourage people to A&E as a ‘safe setting’ in which to undertake an assessment and occasionally encourage police contact in situations where officers would have little other choice than to refer someone to A&E.
We know that some people have walked out of A&E and been found dead by the police shortly afterwards so the stakes around this, on occasion, could hardly be higher. The police obviously have at least some role to play: empowered as they are to make decisions (s136) under the Mental Health Act that A&E staff, A&E security and mental health professionals cannot make. In case of any doubt at all we need to get this one out of the way: section 5 of the Mental Health Act 1983 cannot be used in an A&E department – section 5 can only be used in respect of patients who have been formally admitted to hospital, whether that be to a psychiatric or an acute hospital. I keep hearing cops, nurses and others getting this wrong – it simply doesn’t apply to A&E!
Accident & Emergency is, little more than an outpatient clinic, legally speaking. It is beyond the scope of section 5 holding powers for either the doctors or nurses who work their, or any hospital security acting on their behalf. If you really want to get into technicalities of particular parts of the hospital, you would need to double check what’s going on with those areas of a hospital which have names like an ‘acute admission unit’ or similar – these areas are often adjacent to A&E and amount to something like a holding area for inpatients. People are usually formally admitted to the hospital whilst in AAU, but it would be worth double-checking with staff there if you’re ever called. Whilst it is a staging area before patients can be transferred to the appropriate ward, section 5 would apply there, as people are usually formally admitted by medical staff and paragraph 16.20 of the Code of Practice to the Mental Health ActHA makes it clear that section 5 powers should be used where they apply, rather than asking the police to initiate section 136.
So where a situation seems to indicate that someone in A&E would be at significant risk of self-harm, suicide or medical complications it can get very tricky and turgid to determine how a response may be put in place that protects vulnerable people lawfully, whilst balancing the rights of people to take their own decisions where they have the capacity to take them. As ever, it’s just not about whether someone lacks mental capacity but also about whether them being held against their will in A&E pending a mental health assessment because of an apparently serious risk to their life or wellbeing.
There are only three principle options –
- Call the police and ask officers to consider applying section 136 MHA – police officers really need to understand that A&E absolutely is a place where s136 can be applied. Nothing about whether A&E is or isn’t a place of safety affects this decision being possible; nothing about treatment areas and triage rooms being controlled by swipe card systems and so on, prevents its application; nothing about staff determing access to particular areas. If you are in any doubt about this, it’s not my opinion, but that of the judge in the 2010 Sessay case (paragraph 39) who ruled, “Accident and Emergency is a place to which the public has access … for the purposes of s136”. Officers need to be clear in light of the next two options, that this is one of the most straight forward ways to resolve a situation involving someone suffering from a mental disorder and that it would be perfectly proper for hospitals to see it. Yes, I know it will then mean officers remaining in A&E whilst treatment or assessment is concluded; I’m aware that it may then mean transferring someone to a mental health unit and that this is all resource intensive – unfortunately for the officers, it is also the obvious implication of our law that it may be required from time to time.
- If the patient lacks mental capacity, restrain them to prevent them leaving where relevant conditions are met – the Mental Capacity Act can be used to justify a decision taken in the least restrictive way in someone’s best interests where that person lacks capacity to take a particular decision for themselves. This could include a decision to leave A&E but it would be necessary for the person relying upon the MCA to be able to demonstrate that restraint was a proportionate response to the likelihood of that person suffering harm and to the seriousness of that harm. You need to be careful here about what the relevant conditions would be: it is not only sufficient to have an understanding about the Mental Capacity Act’s general principles, including presumption of capacity unless otherwise assessed, best interests and least restriction; you also need to apply the additional thoughts in section 6 and be clear about whether that action becomes a deprivation of liberty and must take account of section 4B whilst the hospital seek a ruling from the Court of Protection!
- Rely upon the common law doctrine of necessity to justify a decision – this is still an available option, although this Common Law authority was mostly eroded by the introduction of the Mental Capacity Act. Wherever a person lacks capacity to take a particular decision, the framework of the MCA applies and should be the method of intervention. However, where no powers are available to the people concerned (like A&E staff / security) this remains an option where someone with capacity is at obvious and immediate risk of significant harm. It could be relied upon in some very limited circumstances, for example, to justify intervention until the police arrive to consider application of section 136 MHA; or to hold someone very briefly until a full MHA is completed. The Sessay ruling also had things to say about this (see paragraphs 33-39) and reliance upon Common Law has to be very carefully weighed up as it all too often would not apply because the frameworks of the MHA and MCA would be the correct method of legal intervention and I certainly reminded us that Common Law does not along protracted detention for a MHA assessment – it has to happen PDQ.
And just a very quick word about what is certainly not an option! –
- An urgent Deprivation of Liberty Safeguard order – I mention this after having heard of an A&E department who told their security officers that an ‘urgent DoLS’ had been authorised and suggested that as the legal basis for detaining someone. Shortly afterwards, dozens of Best Interests Assessors (BIA – those professionals, often social workers, who make assessments about the authorisation of DoLS orders) were reported to have fainted across England and Wales. There are two situations in which the phrase ‘urgent deprivation of liberty’ may occur – an urgent DoLS order (under Schedule A1 MCA) which is instigated by a care provider like a hospital or care home pending a formal assessment by a BIA; and more general action entered into in an life-threatening emergency which also amounts to a deprivation of liberty under the MCA and may be done pending an application to the Court of Protection. I’m not going to go into any more detail here about the difference; suffice to say that this example involved the hospital ‘instigating’ an urgent DoLS order which cannot lawfully be done unless someone is already in hospital or a care home as a patient or resident.
THE RISK OF NEGLECT
So the conundrum often arises, what should be done where staff have concerns for someone’s life or physical wellbeing were they to leave A&E, arising from their mental health or other cognitive problems?
The first thing to make absolutely clear, is that it is highly likely that just letting people leave and then ringing the police to commence a potentially high risk missing person inquiry will not always be enough. There are various reasons to think this: firstly, Coroner’s cases where hospital trusts have been criticised for this very approach; waiting too long before intervening or ringing the police. Secondly, we know that all NHS hospitals are part of health organisations which are public authorities for the purposes of the Human Rights Act. Therefore, they have a positive duty to promote human rights and this includes Articles 2 (right to life) and 3 (inhumane and degrading treatment).
If you look at the case law page of this BLOG, you will see various cases which refer to human rights for absconding patients – including those not (yet) legally detained – and which refers to negligence and a duty of care. I’m also wondering recently about the application of new criminal offences under section 20 and section 21 of the Criminal Justice and Courts Act 2015 to these situations – totally unchartered territory involving very newly created offences which are yet to be used, to my knowledge.
Thirdly and finally, we know that for some patients, hospitals do actually think proactively about absconding risks in vulnerable people and we know that all kinds of staff, including doctors, nurses and security have from time to time stopped an elderly vulnerable person with dementia walking out in to the street. I’ve seen it happen and I’ve always wondered why the situation is different for a woman in her 20s suffering an episode of psychosis where it is known that she has seriously attempted suicide in the past?
I suspect my police colleagues may prefer these next few sections not to be said! – officers need to understand a couple of things in particular, one of which I’ve already mentioned. It is perfectly proper for hospital staff who have concerns about someone’s mental health to ring the police and ask them to consider whether or not section 136 MHA could or should be applied. It will always remain the officers’ decision and I have come across numerous examples in the last year alone of this happening. On some occasions I think the officers were absolutely right to refuse to instigate the power – on others, it would seem a perfectly lawful and proportionate way of mitigating the risk in a potentially serious situation doing otherwise would be hard to defend. Remember, section 136 can be applied in A&E, irrespective of arguments about whether it is or isn’t a Place of Safety (it is); and irrespective of whether the person would need to remain in A&E or be removed to the Place of Safety in a local mental health unit.
Finally, it is worth officers thinking about what the word ‘necessary’ means – I’ve written a BLOG on this before and I will simply refer you to it, if you’re not sure why I raise the point. My punchline is that section 136 may not only be necessary because someone will not agree to a course of action to ensure their needs are assessed; it may also be necessary because context indicates that we need to ensure the person completes the assessment that they may be initially agreeing to. The mere fact that someone agrees to go to A&E does not mean that 136 is void – does the person concerned have the capacity to consent to that decision? It may be they agree for all manner of reasons that are to do with a lack of insight or comprehension about what that actually means for them.
Ultimately, all of this is about balancing off available legal powers with the duties and obligations that sit on police officers as well as on medical and nursing staff or any security professionals acting on their behalf. Knowledge of law is key for all: and remember that the Sessay judgment gave decent coverage to discussion of the interplay between the MHA, the MCA and our common law, all set against the background of the European Convention on Human Rights – it is well worth a read and I’m glad the have fully re-read it in preparing to write this BLOG. It has always been my view that a lack of knowledge sits at the bottom of most inter-agency debates and difficulties.
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