You remember Britain in the nineteen fifties … the Suez Crisis, the Korean War and the Queen actually having to make a major constitutional decision about the appointment of a Prime Minister following the resignation of Sir Anthony EDEN. Bearing in mind the Queen recently became the longest reigning monarch in British history, you have to go back to the 1950s to see a decade where we had any other monarch. This was a LONG time ago! – a time that finally saw an end to rationing following the restrictions imposed during World War II. And it was a very different time – during the 1950s, Britain was part of leading on the delivery of the United Nations universal declaration on human rights and towards the end of the decade, we modernised our mental health laws. This subsequently led to Enoch POWELL’s second most well known speech – the Water Tower speech. It is regarded by some as having precipitated the UK’s move towards a more community oriented model of mental health care and to the deinstitutionalisation movement away from reliance on old Victorian asylums.
This is when our current mental health laws were written.
They were for that particular society and for that particular model of mental health care – highly reliant upon old county institutions often built in the nineteenth century. The 1950s was the decade in which the first anti-psychotic medication was developed – chlorpromazine – and it was a period where homosexual activity was covered both by psychiatric manuals and criminal law.
This was when our current mental health laws were written! – the Mental Health Act 1959.
MENTAL HEALTH ACT 1983
Although the 1983 Act appeared to be a significant update with a total overhaul and an entirely new Act, it wasn’t a legal revolution – more of an evolution. In many respects the 1959 Act represented the revolution, sweeping aside nineteenth century laws about ‘lunatics’ in section 1 and modernising our approach. When the 1983 update occurred, police powers under what are now sections 18, 135 and 136 of the ’83 MHA were merely brought over almost unchanged from the ’59 Act (sections 40, 135 and 136, respectively). The main compulsory admission provisions (sections 2, 3 and 4 of the ’83 Act) were also brought across (from sections 25, 26 and 29). Along the way, we’ve just slightly altered terminology and the most specific example is probably the title and professional backgrounds of those who make applications for admission: those we have known as Approved Mental Health Professionals (AMHPs) since 2007 were original Mental Welfare Officers (MWOs) in 1959, changing to Approved Social Workers in 1983.
But look at this –
- Section 25: admission for assessment for up to 28 days – MWO and two doctors.
- Section 26: admission for treatment for up to six months – one MWO and two doctors.
- Section 29: emergency admission for up to 72hrs – one MWO and one doctor.
- Section 40: return of AWOL patients – MWOs, Constables or anyone else authorised by hospital.
- Section 132: even my pet subject s140 MHA had an equivalent duty in 1959!
- Section 135: warrant to enter and remove patients to a Place of Safety – Constable, MWO and DR.
- Section 136: power to remove someone from a place to which the public has access.
It all sounds so very, very familiar, doesn’t it?! The 1983 Act replaced the ’59 Act but replaced it with an exactly similar foundation, but merely altered some less fundamental details and introduced structures to ensure patients rights and autonomy. So this is the basis for the claim I often make about our law being 1950s legislation – the main planks of what goes on today was written when Buddy HOLLY was alive and well.
But just think about the change again: with a large number of patients detained in hospital for years, how often do we think the average MWO would attend an address to assess and ‘section’ someone? – how often would the average Constable use s136 MHA ’59?! If an MWO did ask for police support at an assessment, do we think there would be as much focus on the legal minutae that we now see, following rulings in the Seal, Sessay and Hicks cases from early twenty-first century? – by definition, those rulings hadn’t been made and as one of them relates to misuse of laws which only took effect in 2007 (the Mental Capacity Act 2005), it wasn’t a consideration. I certainly don’t anticipate anything like as much discussion about warrants under s135(1) ’59.
This could be a touch unfair to our historical colleagues but I’m guessing if a police officer manufactured a situation in which someone in a private premises went outside, there wouldn’t have been much objection to misuse of the s136 provision? There certainly wouldn’t have been a human rights based challenge as we saw in Seal v Chief Constable of South Wales Police case which was heard in Strasbourg in 2010.
But the main issue I want to highlight occurs in the shadow of some recent jobs I’ve been contacted about by mental health triage schemes. They are precisely the jobs which I said in a post two years ago would be almost totally unaffected by these new methods of partnership working and thus has proved to be the case. I’m even received an email from a police officer about a perception of pressure being placed to act unlawfully. But it’s interesting to note before I describe these incidents, that triage schemes have been found to think in exactly the terms that police officers did in the 1960s – how can they lawfully fudge their way around the implications of our 1950s legislation?!
Imagine that someone rings 999 with a complaint about a potential offence. Police officers respond and find through independent evidence that the alleged offence has almost certainly not occurred and the victim who rang has potentially serious mental health problems. In accordance with new procedures, they ask for street triage to get involved to assess or advice in the circumstances. When triage arrive at the scene, the outcome of the background research and the nurse’s assessment is that they have a mentally disordered person in their own home, under the influence of a decent amount of intoxicants, albeit not ‘incapable’; and they are exhibiting non-specific suicidal ideation. The officer is of the view that if such a person had been encountered in a public place, they would have used s136 MHA ’83 to detain them and ensure their safety. But the person is not in a public place. – they are in their own home and actually, they are asking the triage team to leave. The MH nurse has concerns about doing that and everyone is agreed they cannot rule out that the non-specific suicidal ideation may manifest itself in serious self-harm of a kind the patient has previously engaged in, although not in recent times.
What do you do?
- You cannot arrest this person for any criminal offence, they are not committing one.
- There is no imminent breach of the Peace and in any event, the Hicks case has said something about that from the perspective of human rights law.
- Can you rely upon the Mental Capacity Act because of the suicidal ideation? – this is where most debates end up, so let’s look at it in far more detail.
You can only consider a potential lack of capacity in connection to a specific issue or decision in someone who is suffering from an impairment or disturbance of the mind or brain – so do they have one and what are you asking the person to decide? You need to know these two things so you may undertake some kind of capacity assessment to make the decision. In our hypothetical example above, the impairment or disturbance part will most likely be satisfied because the person has a serious mental illness, is open to mental health services and is intoxicated sufficiently to mean their capacity to take a particular decision may well be compromised. But what decision?! – and can they communicate their views in respect of it; do they understand the information relevant to it; can they retain information relevant to the decision and evaluate or employ information appropriately? That’s your call, based on the circumstances you find but even if your thinking has got you to a point of declaring a lack of capacity, let’s say about the decision to attend A&E on a voluntary basis, to remain safe with police officers and agree to a mental health assessment, what does that mean you can then do?!
- You can do the least restrictive thing in their best interests, stopping short of restraining the person or depriving them of their liberty – so this may include remaining on the premises in opposition to the direction to leave, pending the making of other arrangements to safeguard the person; or temporarily taking control of things which the person could use to cause themselves harm. Section 5 of the MCA covers this.
- If restraint is thought to be necessary, it will only be lawful where it is a proportionate response to the risk of harm and to the likelihood of that harm – so if the person is attempting to ingest medication in an apparent overdose or to self-harm using an implement, it may be justified. Section 6 of the MCA covers this.
- If it is thought to be necessary to remove the person to another location and hold them against their will, potentially for several hours, this urgent deprivation of liberty will only be justified where it is necessary to provide a life-sustaining intervention or to do a vital act to prevent a serious deterioration in their condition. This is the one we need to focus on further. Section 4B of the MCA covers this.
So we hear of officers being asked by paramedics, street triage nurses or their supervisors to ‘use the MCA’. Let’s look at how that relates to our situation, above. There is no suggestion that Emergency Department treatment is required – no suspicion of an overdose, no underlying medical complication that risks the life of the person; no wound or injury that requires attention to save that person’s life or prevent the serious deterioration. So what would happen at the Emergency Department? … in addition to a physical healthcare assessment that may be somewhat limited in its scope if the person continues to object and resist, what would you do when you get there? The actions seem to be focussed on officers remaining proximate enough to the person to stop them from harming themselves, potentially with a view to a mental health assessment once sobriety returns. Do we need to be in ED for that?
If we’ve decided we have to ‘do something!’, would it not be less restrictive to wait with the person at their premises, pending sobriety returning and then re-address the issue of capacity at a later point? The MCA does suggest delaying action if it is thought that capacity will be regained – the decision to trespass would be defendable under section 5, as would any decision to temporarily restrict access to mechanisms that would cause harm; if restraint were briefly required, section 6 would cover this. All of this is less restrictive than the action of physically coercing someone to ED, especially if there is nothing specifically additional that ED can offer. Remember the risks involved in the restraint of mentally or medically vulnerable people. And if the person should meanwhile exercise a genuinely free decision to leave their home, they surrender protection from the use of s136.
It all takes us back to the Sessay case (2010) – the judge reminded us all that there is a statutory mechanism to deal with this hypothetical situation and “there is no lacuna in the law”. You contact an AMHP and ask them to attend and assess the person under the Act, if need be with the assistance of powers afforded by a s135(1) warrant. But here’s the issue that reflects back on our 1950s legislation. Had you had this situation in 1961 or 1971 (or 1991?), it strikes me as much more likely that the police would have resolved the situation another way. We still hear now about officers turning up in Emergency Departments with people who are obviously detained against their will but who were encountered in their own homes – this was the feedback I received about modern policing from the Royal College of Emergency Medicine at their mental health study day.
EATING CAKE AND HAVING IT TOO
Whatever we think of the above, and whatever mental health system we had in 1959 that influenced the thinking behind our current laws, the fact is that police powers under ss135/6 MHA were formally reviewed in 2014 and the Home Office recently published proposals to update aspects of the MHA which do not effect these considerations. So 1950s legislation or not, this is how your Government wants it to be – albeit they pointed out the duty on Local Authorities in the Code of Practice to the Act to have sufficient AMHPs available to undertake their statutory functions. What I submit we can’t keep doing, is protest at police ‘improvisations’ around the kinds of incidents and then say we’re going to refuse to help them do it properly – you can eat your cake, etc., etc..
In fairness to some AMHPs and some areas, it’s not just the AMHP provision that affects things, it’s also s12 DR availability and securing warrants out of hours, if required. But regardless of the problems around those issues, it remains right to say we can no longer expect the police to keep fudging the legalities of responding to mental health crisis incidents in private premises. Outside certain specific situations, it is simply a reflection of our current, modern laws that responses that require lawful detention to keep people safe when they are at risk in private premises rests with AMHPs as the only professionals who can coordinate assessments and swear out s135(1) warrants.
It is therefore vitally important that police, paramedics and triage cars who find themselves in these positions draw to the attention of duty AMHPs in their areas, situations where an AMHPs involvement may make a differenrence. It is up to AMHP’s to justify their response to these requests, just as they feel entitlted to ask for police support where they believe it is necessary when undertaking MHA assessments. The basis for asking, given that we have ruled out arrests for offences, Breach of the Peace or reliance upon the MCA will be to simply say ‘Sessay‘. If we don’t ask for help from each other that we think we’ll need, we run the risk of misunderstanding the nature of the demand we face, we risk missing opportunities for professionals to support each other and most of all we risk the legal rights and potentially the welfare of vulnerable people.
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