In December, I spent a very enjoyable afternoon absorbed in reading the detail of a twenty-odd page judgment from a Coroner’s Court. It followed a situation where a man walked out of an ED Department and ended his life on a railway line not too far away from the hospital. The Coroner had no concerns about the police response to the report that he had left the ED, because there was no real way of knowing where he had headed towards and it is known he had died by suicide so soon after leaving that it would have taken quite unlikely luck for officers to have stumbled across him. The real interest in the judgment was the way in which the Coroner looked at the nursing and medical staff in ED – how did they triage the suicidal risk the man posed, how did they communicate and react; what more could have been done?
I’ve just read a newspaper article from Exeter following another recent Coroner’s finding. A patient who was admitted to a medical ward after an acute asthma attack was assessed for mental health problems whilst on the ward and decisions were taken first of all, to transfer her to a mental health unit. Later, that decision was reversed and she was to be discharged home for community support. Somewhere in there, s5(2) of the Mental Health Act was used to detain her but confusion appeared to reign about when that power came to an end. Following this, the patient left the ward claiming she was ‘informal’ – and therefore, allowed to leave. She subsequently took a paracetamol overdose and died five days later.
In these cases, and plenty of others besides, Coroners can issue what are known as a Regulation 28 ‘Preventing Future Deaths’ (PFD) report. The intention here, is to demand responses and development by organisations where Coroners reasonably believe the learning from that particular death needs to be more widely absorbed – either by the other professionals working for that organisation; or by all professionals undertaking those roles across the country. The relevant agencies are obliged to provide a response to the Coroner to outline what they intend to do. You can see individual PFD reports (they can take a few months to be uploaded after findings) and learn more about the work of HM Coroners on the website of the Chief Coroner, including an annual report on their work.
ACUTE TRUST HOSPITALS
These are just two recent cases – there are more where similar issues are raised. I remember some years ago, other EDs being criticised by Coroners after vulnerable people walked out. If you ask any of the many police officers active on social media around mental health, you will see that many of us really do believe the EDs think they’re covered if they just make sure they call the police quickly once someone leaves. This is not necessarily true! – as the first case I’m alluding to makes clear, even a diligent, quick response is not always enough to ensure that someone is found. So calls for the police to ‘bring someone back’ might be an intervention too far down the line.
It really might be necessary to stop people leaving in the first place. Also of relevance, it would seem, are the human rights implications from cases like Rabone and another v Penine Care NHS Foundation Trust (2012) – a case where a vulnerable patient left a mental health unit and where it was found that even though a patient may have been admitted an a voluntary basis, available risk information may mean it’s necessary to take steps to prevent that person from leaving. Melanie Rabone’s family won a challenge that her Article 2 right (to life) had been violated where this did not occur.
So all professionals in acute hospital trusts need to understand the legal frameworks that apply – and the Exeter Coroner raised the next obvious point: training. Staff need knowledge of mental health, including mental health law, to discharge their duties correctly and as the news article made clear: there was no obvious reason why Wendy Telfer could not have been prevented from leaving under s5(2) MHA. It is only fair to Royal Devon and Exeter Hospital staff to point out that there was a Devon Partnership Trust nurse on duty in that ward, as part of Ms Telfer’s care (which may have meant that s5(4) could have been used by him. Either way – there were shortcomings perceived by the Coroner!
WHAT ARE THE OPTIONS
As ever, there are only three broad options we need NHS staff to know about, either in ED or on medical / surgical wards –
- The Mental Health Act 1983 – what powers do nurses and doctors have on the wards or departments where they work, under the MHA? In summary, ED nurses and doctors have none, but may consider asking the police to apply s136; medical / surgical ward doctors can use s5(2) MHA; mental health and learning disabilities nurses can use s5(4), if they are present; nurses and doctors working where s5 MHA powers may be used, should not be calling the police to use s136, according to paragraph 16.20 of the 2015 Code of Practice MHA (England); according to paragraph 16.25 of the 2016 Code of Practice MHA (Wales).
- The Mental Capacity Act 2005 – what authority would this afford a decision-maker? It will depend upon the particular medical circumstances and the risk someone poses to themselves; it may also depend on whether or not any existing framework is already in place under the MCA, like Deprivation of Liberty Safeguards. But certainly, the Mental Capacity Act affords NHS staff some scope to take urgent decisions in someone’s best interests, where they lack capacity to do so for themselves because of an “impairment of disturbance of the mind or brain”. Such decisions can include restraint or an urgent deprivation of liberty, where the criteria are satisfied for doing so.
- Common Law – regardless of those two frameworks, Lady Hale reminded us “the common law doctrine of necessity has two aspects, there is a general power to take such a steps as a reasonable and proportionate to protect others from the immediate risk of significant harm. This applies whether or not the patient lacks capacity to make decisions for himself.” Munjaz v Ashworth Hospital Authority (2003).
Obviously, the police have further powers under criminal law and to prevent a Breach of the Peace, but the main point I’m making in this post is that Coroner’s are telling us we need to know more about how to stop being absenting themselves where there is an obvious risk. Those are one-sentence summaries of things and there is obviously a further level of detail to be absorbed and various practical implications that result; but these are the things on which it seems Coroner’s are wanting NHS staff to have training. You can find more detailed explanations of these laws elsewhere on the BLOG – use the ‘How To Use the Blog‘ page to help you, if you’re interested in learning more.
It is obviously fair and not at all unreasonable for NHS Staff to ask the question about their own safety: most nurses and doctors did not train in their profession to end up rolling around the floor with someone making a concerted and aggressive attempt to leave. So what do we think about the important point of staff safety? It comes back to discharging duties and responsibilities under the Health & Safety Act 1974. All of the organisations for whole nurses and doctors work, have statutory responsibilities around creating safe systems of work, planning to mitigate foreseeable risks and providing training. The legal duties owed under the Act are owed by hospital managers not only to their staff, but also to patients and to anyone else who may enter their premises, including police officers or paramedics, amongst others.
In other words, in considering the type of health service that they are endeavouring to provide, managers should be considering the likelihood of these issues. How likely is it that ED may see someone walk out after triage where MH or suicidal risk is known? How likely is it that a medical or surgical ward may have someone admitted who also has MH problems and may try to leave? If either of those things occur, what is the requirement on staff, what training do they have around MH law to make their decisions; on what support can they draw to help them, given that we all understand concerns around safety given the type of role that those staff are performing? What role would hospital security play – how are they trained and briefed to support? What role do the police play and do staff of all kinds understand when / how to engage them in these matters – let’s b clear: their role should be limited, but officers have to realise they have a role.
The Coroner’s Regulation PFDs keep on coming – one accusation which can be placed at the feet of NHS and Police services, an observation that is made by the charity Inquest, is that lessons are inadequately learned across the country, where avoidable deaths occured elsewhere. How do we ensure that all EDs learn lessons from each other; that police forces learn lessons from each other – and that partnerships between services learn lessons from other partnerships! One way we can start to do that, as individual professionals, is to get interested in looking at care and risk from a legal, and not just a clinical point of view.
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