For the first time in my career, I gave so-called ‘expert’ evidence to a Coroner’s Court around a mental health incident. It all centred on the response to a vulnerable man in his own home and I will blog more specifically on that once the court has published its documents. Suffice to say here, I became quite concerned by the difficulty 999 crews seemed to face justifying their actions and inactions; as well as the extent to which other organisations tried to focus on those difficulties.
So leaving those specifics for later, here is a checklist for how to approach these issues so that as a paramedics or police officers you can’t be the one accused of doing too little or failing in your legal duties towards vulnerable people. This is what I want you to know, having read hundreds of pages of documents and given over 5hrs of evidence overall, just in case you end up there connected to an operational incident.
Imagine you enter a private premises and realise you are answering a mental health crisis call. You make that initial assessment of the person, the location and grab on to any information which is available. Here’s the quick checklist for what I will call the primary assessment – this means the assessment of whether the police can take action now, without referrence to others, almost immediately ensuring the safety and wellbeing of the person they’ve just met, pending assessment –
- Mental Capacity Act 2005 – this appears first on the list purely so you ask yourself whether you have walked in to a situation which is already, more-or-less, life-altering or life-threatening? It’s obviously vital that we don’t miss this!
- If so and you are responding to someone you think is over 16yrs old and who lacks capacity about a specific decision, then you may have a duty to ensure their welfare and you would be able on rely upon the MCA if challenged about what you did. Call an ambulance if you’re a cop; call the police if you’re a paramedic who is going to need help to restrain the person and remove them to hospital and whichever you are: have a think of this problem from the other 999 crew’s perspective as to why they will want your support. Scratch each other’s backs, as it were! #team999
- Try to engage the patient in agreeing to attend hospital for assessment and care. If they decline and police or paramedics think the medical issues are already life-altering or life-threatening, you may consider removing them to hospital under the MCA. Your legal justification will be around section 5, 6 and 4B of the Act because even if your actions amount to depriving the person of the liberty, s4B outlines how this can be justified if you are provide a ‘life-sustaining intervention’ or doing a ‘vital act to prevent a serious deterioration in someone’s condition’.
- Unrestrictive options – in the absence of needing to act immediately to save a life, is there any ability to call upon other professionals to take over the clinical assessment of someone you think is mentally unwell? Whether that is the Ambulance service, an out of hours GP, a community or crisis mental health team will depend on your area and the circumstances you face: make sure you know what your local options are! In the absence of that being possible (for whatever reason), document what you did, what you may have tried to do or what you considered and ruled out, with reasons.
- Criminal Law – if there is any evidence of a criminal offence, attempted or substantive, then you may have powers to arrest in respect of that offence in order to ensure the safety of the person. It may still be necessary to get clinical advice about risk if the intervention is still predicated upon concerns for someone’s mental health, because conditions that officers may think of as ‘just’ mental health issues can often be other maladies, from meningitis, serotonin syndrome, Addison’s disease, brain tumours or diabetes … other examples are also available! Call an ambulance if you’re detaining and restraining someone who you think is mentally ill.
- Common Law – history shows officers have often relied upon common law powers, usually to prevent a Breach of the Peace or its continuance, to intervene in private premises. It’s almost been a proxy for the absence of powers under the Mental Health Act 1983 (MHA). Where a breach of the peace is actually occurring(!), this is perfectly legitimate but officers need to be satisfied that the legal basis is sound otherwise the risk is a custody officer will decline to authorise detention. The same concerns apply to detention and restraint under Common Law as criminal law: medical matters are not identified or managed in any way because of the chosen legal framework to be applied.
- Mental Health Act 1983 – the police service have no powers in private premises under the MHA, except where someone is already liable to detention under the Act, for example an AWOL patient. You may not arrest for criminal or common law matters and remove a person from the property only then to detain someone under s136. The exception to this point, is where someone has been removed from a building or land where they are not allowed to be: trespassers who are evicted on behalf of property owners may be regarded as ‘found’ in the place to which they are removed, for the purposes of other laws. If you have got this far thought your primary assessment, you’ve just ruled out your use of legal powers.
So if you’ve quickly checked off that list and you find that you’re still stood in a private premises with someone who you think is experiencing a mental health crisis. Next part … and this is the bit that’s crucial, based on what I went through in the Coroner’s Court two weeks ago.
- Tell YOUR supervisor – get them engaged in this to take on some responsibility for this minefield you’re now navigating!
- The Sessaycase (2011) tells us that where there are concerns for someone’s mental wellbeing in a private premises and no legal ability for the police to intervene, the route to assessment is via an Approved Mental Health Professional.
- Section 13 of the Mental Health Act states –
- “If a local social services authority have reason to think that an application for admission to hospital or a guardianship application may need to be made in respect of a patient within their area, they shall make arrangements for an approved mental health professional to consider the patient’s case on their behalf.”
- Ask yourself (or ask the officer, if you’re wearing green) whether using section 136 MHA would have been an option if the person were to have been encountered in a public place? If yes, do not leave the incident without referring this to someone who takes on responsibility for what happened next. This could include responsibility for doing nothing next, as we’ll see below.
- However, regardless of local policies and preferences in local authorities, mental health trusts or GP services there is nothing in law that prevents paramedics or police wanting to draw the local authority’s attention to the potential that s13 contacting the AMHP service for their area to discuss the matter.
So to sum that all up! –
- MCA – life-threatening or life altering?
- Any unrestrictive options: GP / street triage / other?
- Criminal or common law – any offences / breach of the peace?
- MHA – is the person in that location lawfully?
- MCA – is it proportionate to remain pending secondary assessment?
- MCA – consider s5 and s6 MCA as the basis to keep the person safe.
- Inform your supervisor – request support.
- Remember the Sessay / Seal cases – no legal ‘improvising’!
- Consider whether you’d use s136 if found in public.
- Can you or supervisor refer the whole thing to a duty AMHP / EDT / CrisisTeam / GP or whoever gate-keeps?
At this stage, you need to be clear about what you’re communicating:
“We’ve been called to a MH crisis incident where I’d be using s136 MHA if we met this person in public. I’m concerned for their immediate welfare and in the absence of legal powers of my own to remove the person and safeguard them, I’m seeking your support to consider the need for a Mental Health Act assessment.”
Document everything, including names and their verbal reactions – formal or informal. If you should ever have to stand in Coroner’s Court, you will want and you will need to be able to show your ‘working out’ for all of this, accepting you won’t be an expert in these areas of law. I would encourage you to refer to the Sessay judgement in your statements and if you’re really feeling confident, refer to paragraphs 33-38 to reinforce your understanding of MH issues in private premises is that the MCA cannot be relied upon (unless it’s life-threatening / life-altering) and that the MHA is the route to take, via an AMHP and a DR.
And on behalf of AMHPs everywhere, who will probably feel somewhat stitched up by what I’ve written above, please be prepared to help them with this if they ask for help. The above has been known to lead to an AMHP turning out to premises with a doctor within 45mins (yes, really) and detaining someone under s4 MHA. They will face exceptional challenges however, if doctors are in short supply, if they need warrants from the court or if there are no beds. Help to the extent you can because any decision to walk away will also be questioned. And trust me – it will be questioned!
Finally: whoever may complain about this approach about resources or local policy, just keep coming back to this point: “Nothing I am asking for breaks the law and this approach reflects my assessment of the risks in these circumstances and I am legally entitled to draw to the local authority’s attention that s13 MHA may apply to this situation. Your responsibility is to decide what your response going to be, bearing in mind it will be documented for the record and referenced in legal proceedings if necessary. This is the way Parliament have deliberately chosen to structure the law and I’m operating within it.”
This is about partnerships, but not just professional partnerships between the police and the other public services, it’s about balancing those against the partnerships police must maintain and develop with the public, because they are the ones we serve and who have legal rights which should be respected.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2019
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – http://www.legislation.gov.uk