I didn’t get ’round to writing a blog on the SESSAY judgment from 2010 before I’d referred to it so many times in other posts, it didn’t seem worthwhile. It’s often regarded as an important ruling, because it relates to a situation in which police officers find themselves all too often: first responders in a mental health crisis incident on private premises. In this particular case, the Metropolitan Police was called to a person’s private premises because neighbours had concerns about whether a young child was being properly looked after and found a mother in the premises with a youngster. Officers were ultimately right to have concerns about the mental health of Ms SESSAY – she was subsequently sectioned under s2 MHA and detained in a mental health unit. The civil claim was about the method by which officers arranged for assessment under the Act.
This post aims to give just a brief summary of the case, but more important it aims to highlight why this particular ruling doesn’t apply to all situations of officers finding themselves in private premises and wondering about the Mental Capacity Act. It is precisely because of the number of times I hear this case referred to incorrectly, that I thought this post may help – so this is about understanding how to make a decision in private premises about whether the Mental Capacity Act 2005 will help support decisions; or on whether officers must attempt to allow the Mental Health Act 1983 to take its course, difficult thought that often is.
One final point of preamble: I can’t be the only police officer or professional who read this judgment and laughed out loud at the very thought of its implications. Just remember as you read this, judges are not there to interpret the law in light of resourcing realities: but in light of what the law actually does permit when we’re invading the civil liberties and lives of vulnerable people. I hope you get to the end of this without laughing, but if not, please remember that this is an argument for proper resourcing of mental health services; not an argument for bending or breaking the law.
So how do you ensure assessment for someone who is encountered in their own home where it is thought to be essential to their health and wellbeing? The Metropolitan Police officers in this case are said to have been aware of s135 of the Mental Health Act as being the primary power to remove a person from their own home but were also aware they could not rely upon it because they did not have a warrant under subsection 1 and were not accompanied by an AMHP and a Doctor. The judgment itself says nothing about efforts they may have made to contact with duty AMHP for their area before they then took Ms SESSAY and her child from her home to the local police station where officers took the child into police protection (under s46 of the Children Act 1989) and they continued to their local mental health unit Place of Safety for those detained under ss135/6 of the MHA.
They sought to rely upon the Mental Capacity Act 2005 to justify their intervention, and you can understand their logic: without the ability to rely upon the MHA, officers honestly believed that Ms SESSAY lacked capacity to take decisions around her own health and that the least restrictive intervention in her best interests was fulfilled by taking her to the local MH assessment area for assessment. To an extent, they were vindicated – when assessed by an AMHP and two Doctors, an application for detention under s2 of the Act was made because it was argued that Ms SESSAY was legally incapacitated to make decisions and not able to look after her child.
The problem here is that the MCA has limits on what can be done when it comes to restraint and depriving someone of their liberty. That’s what was challenged in the case and the Metropolitan Police commissioner settled the case and agreed with the argument. The judge outline the set of statutory provisions that relate to mental health crisis on private premises and this included a reminder of the various provisions of the Mental Health Act that could have applied. I’m not going to rehearse the ins and outs of the MCA because that is covered elsewhere on this BLOG – feel free to read that link to refresh your memory before reading on, if you need to. The points to be made now are –
- To what extent you still can rely upon the MCA in private premises to intervene.
- How you approach situations where it is the MHA which should be the basis to intervene.
WHERE THE MCA APPLIES
As I was getting my head around the MCA some years ago, I remember summarising to someone what I thought I had understood and I typed this on an email –
“So if I’ve understood this correctly, we’re saying police officers should stay clear of relying upon the MCA unless they have to intervene to protect someone from serious harm or get urgent medical treatment?”
They just replied; “Yes!” It’s a little bit crude, so let me elaborate briefly.
Imagine you have attended a situation similar to SESSAY – and every police officer in the country will have done – but consider that there are concerns about a paracetamol overdose. If there was evidence to suggest that someone had taken 50 paracetamol, could you use proportionate restraint to stop her taking even more? – if you have those preconditions that you reasonably believe the person to lack capacity and that you are acting in the least restrictive way, in their best interests, you potentially could. Where a situation allowed officers to take control of the medication rather than restrain the individual, that would be preferred and restraint would probably not be justified – but if medication was in the individual’s possession and they started trying to empty the contents, personal restraint may then be justified to remove the medication and prevent further ingestion.
And would the MCA then allow removal of that person to hospital, bearing in mind the judge’s comments in the original SESSAY case? Yes, it almost certainly would.
The difference between SESSAY and critical overdose situation is that people would potentially die without further action in the latter case. No-one was arguing that Ms SESSAY’s life was at risk, without some further mechanism taking effect. Without any further action at all, someone who has taken a significant overdose may die. This is where officers must be aware of sections 6 and 4B of the Mental Capacity Act which covers restraint and urgently depriving people of their liberty. Restraint under the MCA can be effected where it is a proportionate response to harm, taking in to consideration the seriousness of that harm and its likelihood – hence, you could justify restraint to stop someone taking a potentially fatal overdose, or to stop them from self-harming in a way that would seriously injure them.
Of course, you’d call an ambulance for all of the above wherever possible, to offer advice and clinical intervention, but officers would be justified in unilaterally intervening if they had to take action to stop serious harm or prevent a serious deterioration in someone’s condition.
WHERE THE MHA APPLIES
It’s where none of this applies, that we’re back to talking about the MHA. If you don’t have “section 4B criteria”, you need to think outside the MCA. Section 4B allows MCA based intervention (for people over 16yrs who lack capacity) if it is necessary “to provide a life-sustaining intervention or prevent a serious deterioration in their condition” without a further development in the situation.
The judge in SESSAY reminded us that the Mental Health Act provides a full suite of options to intervene in someone’s supposed mental ill-health in private premises. An Approved Mental Health Professional (AMHP) and a Doctor could attend the address at assess Ms SESSAY for admission under section 4 of the Mental Health Act, if urgent assessment were needed and there was insufficient time to arrange for two Doctors and a full MHA assessment. The judge also reminded us that the AMHP could pop in to see a Magistrate on the way to the premises if a s135(1) warrant were needed.
Now this, precisely, is the part where I admit I laughed – out loud. The idea that officers attending such a call or any other spontaneous incident could get the control room to ring a duty AMHP and that they could turn up at an address with a Doctor in a reasonable timescale is just hilarious! AMHPs and the crisis or emergency duty teams in which they work are just not set up or staffed to provide this kind of response. I’ve asked for this several times in operational situations since the SESSAY judgement: I’ve only found a response was possible on one occasion and it took five hours. Even then, I’m convinced it only occured at all because our presence outside the address to which the response had been made followed a report from the CrisisTeam that a patient had walked out of A&E mid-MHA assessment and was at serious risk. Of course, they turned up without the warrant that we told them they’d need, so who knows how long it would have taken to go via a Magistrate. Otherwise, it doesn’t happen, in my own experience.
NINTEEN FIFTIES LAW
To understand the problems in actually realising the Mental Health Act, it’s worth bearing in mind developments over the last sixty or so years. The bulk of the legal interventions in the 1983 Act were lifted more or less unaltered from the Mental Health Act 1959. So we are running about in the early twenty-first century in with a highly deinstitutionalised model of mental health care in a far more human rights and health & safety oriented society, using laws that were designed for Dixon of Dock Green and the asylum era. Our mental health care system has changed beyond all recognition since the 1950s and the role of our police service has changed accordingly.
So what could possibly go wrong?!
You also have to remember one other point: this legal stuff has been reviewed and debated several times, as recently as 2014 and the law is almost exactly as your elected Government want it to be. Sir Paul BERESFORD MP introduced a ten minute rule motion in 2014 to amend section 136 MHA because of his experience on patrol with the Metropolitan Police – it was set aside because of the ongoing Home Office and Department of Health review of s135/6 of the MHA occurring at that time. Some amendments will be put forward in the Policing and Criminal Justice Bill to be brought before Parliament this year, although not the one Sir Paul wanted to see; and by 2017, we will have some the law develop, albeit not in way that will alter what I’m writing about here. Police powers in private premises was specifically discussed in the review and in light of Sir Paul’s experience and despite this, there are no proposals for change. I was in a room at the Home Office in November 2014 with a range of people who had gathered to discuss the topic of how to ensure appropriate intervention in private premises, especially in situations where the emergency services are called and first on the scene of someone in crisis and the outcome of the review is the same as the SESSAY judgment: the law is adequate for the purpose and it is up to agencies to arrange themselves to deliver on the implications of the law.
This suggests – to me at least – it remains incumbent upon local authorities to ensure sufficient AMHPs on duty, with sufficient access to s12 Doctors and out-of-hours Magistrates, to be able to support 999 staff decision-making where faced with a SESSAY-type situation. Please don’t say ‘street triage’ to me at this stage! … whilst such schemes will be able to identify situations where police or paramedics may be wrongly inclined to think ‘Mental Health Act!’ this post is about situations where the implementation of the Act or other legal intervention is exactly what is required, for an incapacitated patient. Mental health nurses on street triage carry no legal powers whatsoever and this post is not about situations which require no legal intervention. This post relates only to those situations where legal intervention is necessary.
Final point: there is little or no value in thinking ‘Breach of the Peace’, either. Since the ruling in HICKS et al v Commissioner of the Met (2014), we know that an arrest under this common law power should only occur where officers have an intention at the point of arrest to bring that person before a Magistrate. I presume we can agree, that no-one in the SESSAY or any other similar case was thinking that a court appearance would help. (HICKS is due to be appealed to the Supreme Court in 2016, so we’ll have to see if that changes anything.)
So if you’re a front-line police officer, this is the summary –
- Get clinical and supervisory support for all of these situations – paramedics and sergeants should be supporting you here!
- Think MCA for emergency, potentially life-saving intervention where things are already headed down a serious route
- Think MHA for urgent but not yet emergency intervention and contact an AMHP if you think you need to: give them a chance of supporting your decision-making.
- Whatever you then end up doing, at least you’ve tried to do the right thing first.
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