Only Following Orders!

I have had lots of conversations, emails and indeed tweets over the years with police officers about reliance upon the Mental Capacity Act to justify intervening where other professionals have declared someone to lack capacity about some medical matter or other. Most usually, it is connected with a decision by someone to decline medical care in situations where 999 services end up jointly addressing the question of whether to allow them to do so.  On the one hand, some police officers have been scared witless about justifying their intervention under the MCA because of the Sessay case (2010) and on the other hand some seem only too keen to start coercing the vulnerable because a paramedic or a doctor has said they should. This BLOG post is about the latter situation (although the former position isn’t right either!) … can you rely upon an other professional’s judgement where the Mental Capacity Act is being bandied about?

Yes – and no! – that’s the answer. But mainly, No!

I once attended MCA training that had been provided by a police force to its frontline officers and amongst other points made, the AMHP who was delivering the training said, “If a paramedic tells you that someone lacks capacity and needs to go to hospital, then you can use reasonable force to take them there.”  I wrote this down at the time, hence I’m able to quote it directly many months later and I did so because it was the only way I could distract myself from the overwhelming urge to leap out of my chair and undermine the trainer in front of everybody. There was no further qualification to this statement and that is precisely the problem: no mention in the overall training about the difference between restraint and a urgent deprivation of liberty; no mention of s4B of the MCA which qualifies those circumstances in which an urgent deprivation of liberty may be inflicted upon someone – just the quotation as given as the first example of how to put in to practice the decision-making that the paramedic will have gone through leading up to requesting the police.

In other examples, there was the tweet by an officer who was keen to show the work of the police that they were taking someone to hospital under the MCA and when I enquiried about circumstances because of my interest in this, the logic behind the coercion was that the paramedic said it needed to happen. Just today, I received an email from an officer with an exactly similar situation: and the same reaction – a paramedic has declared a lack of capacity so “that’s up to them”, implying it bound the officer to act … it really, really doesn’t!

You need to know much more.

NUREMBERG DEFENCE

This is the real problem: you can’t just justify your actions after the fact by simply saying “I was only following orders”.  The AMHP trainer and the officers are wrong in these situations because whenever a professional is using physical force to coerce another human being, they have to be able to justify this on their own terms.  A paramedic may well tell you about capacity, but they can only help inform your view about proportionately. Imagine the person who is coerced to hopsital complains to the duty inspector that the officer involved assaulted them and imprisoned them against their will. On the face of it, the officers actions will have amounted to this unless they have a legal justification for doing these things? Officers usually make detailed notes where force has been used, and the legal basis for doing it. If I saw their statement or their official notebook and it just said, “The paramedic said I had to!”, I would be quite alarmed!

And here’s why –

The paramedic, of course, is far better placed than any police officer to make a clinical assessment of someone’s needs and to know the particular kind of clinical response that would be necessary. This is not what I’m questioning – not for a moment. What needs greater thought, is whether or not coercion to hospital is the least restrictive thing and / or a proportionate response to the situation? Examples might help – imagine a patient is in their own home and they have injured themselves but are declining hospital treatment: and let us further imagine that person has broken their finger whilst drunk – are we dragging them kicking and screaming to hospital if a paramedic declares them to lack capacity?

I hope you shouted, “No!” based on just those facts?! – without anything further, you’re going to let them sober up and when they wake up and realise their hand hurts and it’s partly pointing the wrong way, they can get treatment having recovered capacity. What’s going to happen if someone doesn’t get care for a broken finger? – there are some consequences and having suffered exactly this injury I can tell you it hurts more to have your finger reset hours after doing it than if it happens shortly after doing it, but there’s nothing especially long-term to worry about. You are almost-certainly not going to die from that! But now imagine the person is experiencing suicidal ideation and has consumed enough tablets to end their life – totally different isn’t it?! … apart from anything else, justifying the use of reasonable force becomes much easier because the stakes are much higher.

If coercive intervention leads to handcuffs and leg restraints with four police officers carrying someone bodily in to the back of an ambulance or police vehicle, they can justify that if that person would otherwise die but would struggle if they had broken their finger! – the MCA requires officers (in section 6) to take account of both the seriousness and likelihood of risks particular being realised. And this is the point where we need to know the case R (G) v Nottingham City Council (2008) – the NHS removed a baby from its mother on the say so of a social worker, without satisfying itself that it was acting lawfully. It was unable to avoid liability by arguing that they were merely following the instructions of the other professional and another organisation.

LEGAL JUSTIFICATION

So where officers are engaging either in restraint or in urgent deprivations of liberty, they must be able to justify their actions unilaterally and I would suggest with reference to sections 6 and 4B of the Act. That means they must understand the other professional’s view on the consequences of inaction. If the paramedic cannot articulate a consequence that renders coercive intervention a reasonable and proportionate response to the management of the identified risks, the officer should question further or potentially decline to act. Unless you start hearing something about life-threatening or life-altering consequences, it’s reasonable to wonder whether your use of force would be lawful.

Don’t forget, if this situation was against the backdrop of responding to a mental health crisis in in someone’s home, the Mental Health Act provides the statutory framework for intervening and it involves services coming to the person, not the person being coerced to the services! I fully appreciate that many mental health crisis teams (where they still exist!) and AMHP services don’t like the implications of the 1959 Mental Health Act or necessarily agree with the judge in the Sessay ruling, but that never the less is the law as it stands in 2016 and both the police and ambulance services have every right to expect support for those situations that cannot otherwise be safely managed, in accordance with that ruling. I would respectfully submit that if a local authority is not going to ensure sufficient AMHPs to provide that range of services envisaged by law they should probably do the public a favour by saying so, in order that such matters can be discussed by the Government and / or Parliamentary authorities which decided in a review of the MHA in 2014 that such matters did not need legislative amendment.

Meanwhile, back in the world of Mental Capacity Act interaction between 999 services, police officers need to remember this legal lesson: a paramedic can provide you with the capacity assessment, YOU remain responsible for the legal use of force applied and therefore YOU must be satisfied that it is reasonable in the circumstances.


IMG_0053IMG_0052Awarded the President’s Medal by
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award


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18 thoughts on “Only Following Orders!

  1. On acting on the say-so of someone else’s assessment, per paragraphs 68 ff of G, R (on the application of) v Nottingham City Council [2008] EWHC 400 (Admin) (05 March 2008):

    “The NHS Trust’s staff did something – they removed G’s baby – which absent any lawful authority was unlawful and a breach of Article 8. The NHS Trust cannot immunise itself from liability by pleading the bare fact of “authority” allegedly “provided” by another public body. And to assert that it was not for the NHS Trust to question the legality of the “authority” supposedly provided by the local authority is simply not acceptable.

    It was the duty of the NHS Trust, if it was proposing to act as it did, to ensure that it was acting with lawful authority. If it chose not to, if it chose simply to assume, on the mere say-so of a social worker, that what it was being asked to do was lawful, then it must take the consequences of its imprudence. And the consequence, in the circumstances of this case, is that the NHS Trust is a joint wrongdoer with the local authority, jointly and severally liable for the breach of Article 8 to which, jointly with the local authority, it was a party.”

  2. MPS SOP used to read “When a doctor, member of the LAS or appropriate service arrives on scene, or is already present, police will defer to their expertise and provide support as appropriate. Any power to restrain a person as a result of the MCA 2005 is independent of any existing powers of arrest for criminal offences, or under S136 Mental Health Act 1983.”

    I think this gives the misleading impression that by deferring , you have to do what they say.

  3. Just provided training on this very point, reassuring to read I’m covering the same issues you’ve raised here. It’s difficult for many officers to grasp that doing nothing is a legitimate and lawful option in some cases.
    In relation to 4b MCA is there any accepted practice as to whoseeks the Court of Protection judgment and if so how soon it should be done? I ask because our local hospotal seem to think they’ve a 4-6 hour grace period before they will even start proceedings (and even then I’ve never heard of it happening if the patient is accepting the treatment). Where would officers stand should they have to stop the patient from leaving hospital for the life sustaining treatment but the hospital refuses to make efforts to contact the courts?

    1. I’m not aware of any, but my view would be that wherever anyone is removed to A&E by ambulance with this defence provision in mind, it is all a medical intervention process with the police merely helping to facilitate. I recently suggested in case similar to those I’m hinting at here, that ongoing police presence in ED to keep the person there will be subject to someone in ED confirming that they are taking advice about going to the Court of Protection because the section itself says, “while a decision as respects any relevant issue is sought from the court.” If they refuse to confirm that they are taking steps to start such a process, then arguably s4B no longer applies to the situation.

      If you don’t mind me asking, who did you deliver your training to – frontline cops?

      1. Mainly frontline officers but other too. From research prior to developing the trading it was pretty clear that the MCA is the most confusing element for officers so I covered it in slightly more detail than the MHA. With the overall focus being on the law, codes of practice and caselaw and not an accepted practice=policy=law in sight. However keeping the senarios as close to problems likely faced at 2am on the weekend of you get my drift. That said 2hrs is nowhere near near enough time spent in the subject and the feedback would support that.

      2. Good effort, though – was that your own initiative or were you asked to do that? If I’m being too nosey, just tell me where to go – I had it you were a response cop, not a trainer. Might have made that up though.

      3. I was asked to do as I’ve become an informal point of contact on my division for the more challenging MH incidents. My interested started about 10 years ago when I asked for a hospitals policy on missing MH patients after returning the same person 3 times in a week. I quickly realised that I was often being lied to, though I now think it was more a genuine lack of knowledge rather than deceitfulness. So I started to read…A LOT! Nobody was interested a decade ago, it was only a few years ago when MH became a mainstream issue did people pay attention to me harping on about why doing the ‘right thing’ can be illegal. Despite this there is still so much more forces could do for vey little cost such as training (my force did 3 hour input on Haz Chem plates yet I had just half that time to do MH law). I’m an avid reader of this blog and I not only mentioned you in the training but I also put a QR code link to this site on the hand outs. If I could only get some of my very senior management to listen to my training I’m sure they would see its an important cause and well worth them investing in it (the training not me of course!)
        Enough waffle from me, keep up the posts.

      4. Not waffle, I was genuinely interested because you’ve long since stood out as an informed commentator on these posts. Glad to think the BLOG may have helped and fair play to you for doing something about these things – just needs more of us doing that at all levels and we’ll see progress.

        I think you’ve hit the nail on the head about lies – it isn’t deceitfulness at all! I just think we automatically assumed that MH professionals – they are the ‘experts’ after all – would be suitably trained in MH law. When I first got invited to lecture at universities to students I assume it would be on the police specific parts of the MHA or MCA interface. Nope – they wanted a proper mental health law lecture or series of lectures. Shocked me to the core that they didn’t have either experienced MH lecturers or law lecturers for that!

        And when you read reports you come across recommendations like “all mental health nurses working on acute admissions wards should understand s2 and s3 MHA”. WOW!! – why does that even need saying?! “All police officers should understand s24 PACE and how to arrest people.” No shit, Sherlock … just breathtaking … let me know if I can even support your efforts. And don’t get me going on 1.5hrs for MH law!!

  4. I find this very interesting from quite a few interactions between police and paramedics while in the midst of a mental health crisis

    Two weeks ago the police (sorry about that) mounted a full scale missing person search and yes it probably was justified. I was unconscious and unaware. I woke up in a hotel room still alive the next day and was found soon after by the police. I was taken to A&E walking and okish. During the 7 hours in A&E is was always accompanied by 2 officers. There was no formal request for a MHAA only a chat with psychiatric liaison. Was that legal?

    Before now having admitted to the crisis team that I’d been asleep for quite a while (a coping strategy my CPN is aware of and will recommend when things are going belly up) they called an ambulance against my wishes. I tried to cancel but it still came. I stood on the doorstep knowing that I was ok but the paramedic was insisting I went to A&E ‘Do you want to do it the easy way or the hard way (ie I’ll call the police)’

    I’ve had the police and ambulance breaking their way into my home and using the MCA on me despite my refusal to go to A&E because ‘you’ve taken some pills therefore you must lack capacity’. No I’m ok I am capable of making this decision. This has happened several times. This is hard for me because I know very well I’m not at risk and that is will be just a circle to go round in but also angry as I know I have capacity yet it seems all easy to use the MCA to resolve a difficult situation.

    I’ve attended 2 training session on the MCA and therefore know my rights yet I feel powerless and often it is the need by paramedics or police to ‘do something’ by whatever means. Often it’s easier to just give in knowing that I have to face several boring hours in A&E for absolutely no reason.

    I’m currently working with the ambulance service to produce a mental health training video. Any ideas welcome.

  5. I’m very grateful as a person who from time to time has interaction with the police while in a mental crisis that there are officers like Michael and Sectioned Detection who in their own time have tried to understand and improve matters. Thank you. Often it has been the kindness of officers towards me that have helped a difficult situation.

  6. This is interesting two officers devoted to understanding mental health and two persons on the receiving end. Like SD, I am trying to change attitudes and establushed culture around this issue. Mental Health crisis will only impact more on the police service and we need to understand it better to be more effective and ensure we get better outcomes for people. I too wish my senior bosses would see the writing on the wall. My opinion is police service and values are established into the core thinking of policing to the extent we feel obliged to always do something, even when doing nothing is the correct couse of action. Often if an individual officer decides something, his supervisor will say otherwise. The response officers are generally young in service and least likely to hold their own and challenge their own supervisors, so just comply. Same with other professionals. Few officers will argue with a Consultant. We end up breaking the law in the belief we are doing the right thing. There is no Chivalry Act to defend us. Police powers are just that. I exercise my powers how I choose, not others. If I get it wrong, I alone am responsible. The problem is, to many people want to blame someone. How many officers are wrongly criticised for not doing something that later escalated. Most officer will problem solve issues tomorrow the way they did it yesterday. They would prefer to get it wrong and save life as opposed to do the right thing and end up with a tragedy. Better training and ACPO support is required. As a street triage officer, I do question why I am still giving the same advice two years down the line. What does that say. Let us not forget, it is frustrating seeing our colleagues over reacting and sometimes get it wrong, but they are non health professional being sent to complex mental health incidents, sometimes Iife or death will be as a result of what they do or do not do. There is often little professional support accessible to them. In fact often other services will purposefully lie or mislead with selective information in order to pass responsibility onto police. My frustration with that is now we know it, why do we tolerate unethical practices. We can all tell horror stories and evidence the problem, but who cares enough to listen, let alone take action.

    1. Mark

      Your comment reminded me of a recent conversation I had while I was in A&E accompanied by the police. I sometimes find myself as a high risk mental health service user in the situation where services know that there is a chance I might attempt to harm myself and indeed I’ve had many conversations on twitter where people have been told ‘if you really want to kill yourself then we can’t stop you’. Positive risk taking is in operation and indeed my case has been presented to a Positive Risk Panel so that the blame will be fairly shared should I in fact die from my actions. Now along come the police to a situation eg someone sitting on a motorway bridge They don’t have the freedom to cross their fingers and toes like the mental health team and hope that the person doesn’t jump. And they have no one else to pass the buck to. The press sure would have a field day if that person died. But that is exactly what mental health staff do probably every day – do nothing or pass it to the police/ambulance service.

      I do self manage quite a lot but I know when my limits have been reached and it seems that I’m allowed to reach a point where it has become a crisis so the police are called to do a welfare check (then we might get into the realms of the MCA being used) or I’m reported missing even though I’m reaching out for help from the appropriate services. I end up with the least qualified dealing with me. I guess maybe that’s where street triage comes in but actually earlier intervention would be less stressful for everyone.

      Until such time as the duty of care of all services match there’s always going to be a problem and the MCA will be misused in the name of ‘do something’.

      1. Ah – the joys of positive risk taking! Only applies to some diagnoses of course, in what seems to me blatant discrimination against people with ‘personality disorders’. In my totally unexpert opinion If someone is going through life self harming then they need serious long term help (therapy and medication) to try to stop. The costs to police and the rest of the NHS of MHS basically doing nothing never seem to count. The cost to family and friends never seems to worry anyone, in fact it is usually assumed that we are the problem. and that lovely phrase, ‘well if you really want to we can’t stop you’ sounds like ‘well we really can’t be bothered’.

      2. SL, I can only talk for myself but assume it applies to most people including police officers responding to people in crisis. I respond every day to multiple incidents of people who are high risk, be it self harming or suicidal. I am in company with one of two highly experienced and dedicated MH nurses. I can and do rely on their guidance. They are skilled, and in the vast majority of instances they are able to intervene and help with great compassion and empathy. They are more skilled at de-escalating highly charged emotional situations than Police. My Police colleagues don’t have that benefit of that immediate professional guidance. When I attend an incident, I effectively pass the risk element to the nurse, who takes it off me and hands it back to me sanitised. Every police officer would relish that capability. I have to remind myself of that fact when I review incidents that my colleagues have attended, it is easy to critisise them and label them risk adverse. I instinctively jump to conclusions and consciously reel myself in. They do feel unprotected and liable to be blamed for overstepping the mark or not doing enough. The old saying, doomed if you do, doomed if you don’t. Then in the centre of this is a vulnerable person in a very dark place desperate for help. That fact is often overlooked when different agencies start arguing who responsibiliy is what. I often think, if this was my son or mother, how would I feel about things. When Street Triage is on duty, people rarely get sectioned, as better alternatives are available and achieve better outcomes. However, when not available, without that intervention, it is generally revert back to section 136. One example is Police, as non health professionals will not usually make the distinction between self harm and suicidal. They will not understand self harm as an impulsive emotional reaction, very different to wanting to end life, but they will approach and deal with it the same way which is the only way they know without professional guidance and that is to section 136 or coerce someone to attend voluntarily under the threat of a section 136.
        A common criticism I hear is police make decisions to protect their interests and cover themselves more than the welfare of the person. Well, it is and will always will be a factor. It would be unrealistic and unfair to expect otherwise. The accountability for decisions makes every professional responsible. If a person tells me they are going to kill themselves, they are in fact transferring that responsibly for their welfare onto me. I have to act, or be jusified and confident not to, else I am negligent in my duty of care, liable to end my career and be prosecuted.

        When a person is in crisis, the focus very much has to be on them and their needs. It is often overlooked that officers have human needs and emotions too. Many officers themselves I know struggle to cope with every day life stressors on top of a stressful and increasingly demanding job. Fatigued working shifts, I observe many suffering low mood, stress and anxiety. Many will not recognise this or seek help. Often, they will go off sick with bad backs or other fictitious ailment, not the true reason. Stress, anxiety and depression. This is down to a perceived stigma that is prevalent in society, but more so in the Police. In police culture, officers view themselves as the protectors and guardians. It is difficult for them openly accept and admit their own vulnerabilities. For example, very often, a person calls police to their home and tells an officer, they have taken a massive overdose, then refuses to get on an ambulance or accept the help offered, then becomes hostile towards the officers and paramedics there to help them. How can officers themselves not be negatively impacted. They often feel compromised and need professional support that is inadequate or simply not there. Again as non health professionals, they will not fully appreciate, peoples behaviour is due to a disorder, often impulsive and motivated by seeking to fulfil a need. We need to recognise that often the help offered is not what is sought. It is very difficult. Officers will just see the outwardly projected behaviour. That is a common general circumstance I come across a lot of the time. I am not in anyway relating it to yourself. Where you mention when in crisis, you are reaching out for help from appropriate services, I think outwardly that is where others don’t recognise that fact, which must further frustrate people in crisis and make a bad situation worse.
        For people who do come into regular contact with police, can I ask you, would it help, if you were involved with agreeing a crisis plan of sorts with police. Information, a do and don’t instruction of what to do, not to do, in order to better deal with you when in crisis. I think this would benefit both Police and individuals. What do you think. I think it would be relatively simple to setup and develop. Care co-ordinators could also be involved.

        You also mention MH services do nothing, allowing you to descend into crisis point then passing the responsibility onto police. I do often see elements of that from my perspective also. Conversely, I do also often see dedicated staff trying their best who genuinely care for their patients. I really do. That as often is the case comes down to chance and getting a fantastic Doctor, nurse or Police officer as opposed to not. What is concerning, what I would call this mental health crisis, has been building up under the surface for many years. More recently accelerated by cuts and reductions in services and support. As a direct consequence, more people in the community in crisis. That at least is simple enough to see. Despite David Cameron’s admission, that they got it wrong with mental health and a pledge to invest billions to bring it up to parity with physical health, the fact remains, over the next 5 years, I believe the continued trend and increase will impact massively on Police. I am not sure many Police leaders fully appreciate that even now. I believe Mental Health accounts for the greatest portion of demand in policing. It is estimated only 20% of policing is crime. Yet some oppose the Street Triage concept or policing mental health initiatives. I hear rumours daily my role will cease to exist. I hope not. I don’t think it will, but develop into something wider and take on a new shape. In my Force their are just 6 police officers, out of just under 2000 doing the role. A tiny amount dealing with a hugely disproportionate root cause of demand. Increasing numbers of people in crisis, against reductions in services, equates to more police emergencies, more detentions, more demand on reduced services who can not cope. Thus the cycle continues and grows bigger and bigger. Police and ambulance are stretched as much as they can be. What happens when the current phase of low crime inevitably starts to rise as the cycle does. And we think the decisions we make now are tough?

        What amazes me, is police essentially manage behaviour yet have very little understanding of it. I am sat on the fence on this one. On one hand, with better understanding through training and awareness, police would be more effective at recognising underlying issues behind behaviours and deal with them more appropriately. Then on the other hand, is that even possible to unpick a hugely complex undertaking. I worry there is a tendency now days to label and medicalise everything. I question does this not provide an excuse for unacceptable behaviours by absolving an individuals personal responsibility and evade being held to account. Is that even what people want the police to attempt.
        Until then, currently, despite rising awareness of mental health and increasing incidents of it, I still feel it is taboo, despite like policing, everyone has an interest and opinion on it. That and the fact Policing will always be controversial, Policing mental health will be a much debated topic for a long time to come. At least interactions on forums like this allow for opportunities to discuss and gain mutual appreciation from all perspectives which is good learning for everyone.

  7. Mark. I’m short on time to reply but just to say there are so many good points above. I have recently had a discussion indeed with admittedly lower membersof my Police force regarding a sort of care plan for myself. A really good idea. By the way I don’t have a personality disorder diagnosis but have been at the receiving end of let’s say unhelpful treatment because I’ve been judged disordered.
    I would really like have a face to face discussion with yrself. But oh well. Are you able to say where you work?

    1. Would love to know what alternatives are available? Can you describe them, out of hours in our area as far as I know there is nothing. And in my experience there comes a point where really the only answer is hospital as it is impossible to be safe at home. On the issue of a plan, yes had experience of doing that with the police., and certainly helped the service user….. just felt a bit odd agreeing what actions are best when being detained s136 when really the services should be being supplied by mental health services,

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