Resisting and Refusing Conveyance

Various things have recently caused me to have to be concerned about assumptions by some that the police service is responsible for the conveyance to hospital (NB: not conveyancing – that’s what you do when you transfer the legal title of property!) of all mental health patients who are refusing to be conveyed, or resisting this. Whilst this is most usually a debate which emerges when an AMHP and Doctors have ‘sectioned’ someone in their own home, there are other examples of where patients have been ‘sectioned’ in police custody and need moving or where patients need to be re-detained in their own homes after becoming Absent Without Leave under the MHA.

So, essentially, the exam question is this:

Is it the job of the police to undertake all conveyance of MHA patients who are resisting or refusing to be conveyed?

Recent and not-so-recent debates on this would lead you to believe the answer is straight-forwardly and obviously, “Yes” it is. I’ve lost count of the number of times that AMHPs, quite fairly, have pointed out that they usually work alone, they’re not trained in restraint, that they are not equipped with stab-vests, handcuffs and the other accoutrements of a police service (why would they be?) and that very obviously they don’t see this as part of their job and who could disagree?

Unfortunately for the poor AMHPs, with whom I have an enormous amount of sympathy for the professional predicament in which they are all too often left by the NHS, the answer is definitely and unambiguously “No – it is not the legal responsibility of the police service to undertake all resisted or refused conveyance to hospital and there are many good reasons why police forces should ensure officers are not over-exposed to this kind of endeavour.”

WHAT DOES THE LAW SAY

There are a few things to bear in mind, legally speaking:

Firstly, when someone has been ‘sectioned’, they are in the AMHPs legal custody and the AMHP may ‘take and convey’ the person to hospital, against their will and there is an implied right to use reasonable force to give effect to this authority, under s6 MHA. Section 137 makes it clear that someone who is ‘liable to be detained’ (in other words, just made subject to an MHA application but not yet in hospital) is in legal custody and that the person having control of that custody has “all the powers of a constable”. It logically and legally flows from this fact, that there is legal duty on the NHS (who by this stage have agreed to admit the patient to one of their hospitals) that they owe the patient a legal duty of care to keep them safe now they have removed their liberty. So this means, under health & safety law and under human rights law, that the organisations need to be able to deal with foreseeable risks (ie, the inherent dangers in coercing other humans) and to do so in a way that protects their fundamental rights (ie, not walking away because it’s all too difficult and finding the person has subsequently come to significant harm.)

So, NHS commissioners have a role to play by doing things during the daylight, in advance of particular events, to ensure that AMHPs have options at 10pm on a Tuesday to call upon a service who can give effect to these legal responsibilities. (I presume we’re all agreed that AMHPs should not be personally coercing people, given that they are not selected for this role, may have their own disabilities or professional restrictions, etc., etc.. Nothing legally prevents them from doing so, as it’s their legal power, and I’ve known a rugby playing AMHP feel it was the right thing to do in some situations, but it should not be the norm and NHS commissioners should be relying upon it). NHS commissioners ensure conveyance mechanisms for most patients in the wide variety of circumstances – 999 yellow ambulances for emergencies; same service do various kinds of urgent transfer between hospitals; we have PTS wagons and mini-buses for conveyance of other kinds. Nothing, anywhere, prevents NHS commissioners approaching the many organisations who can provide secure conveyance of resistant MHA patients for admission to hospital. Some of them already do and we’ll come back to this shortly.

But nothing in the AMHPs authority under s6 MHA makes it a police responsibility to undertake conveyance because of resistance or refusal. For that matter, nothing in law makes the return of AWOL patients a matter for the police where the legal power in question is s18 MHA – this power is also available to AMHPs more importantly to anyone authorised by the relevant hospital’s managers. Paragraph 28.14 of the MHA Code of Practice makes the return of AWOL patients whose location is known a matter primarily for the NHS. These things are something the police may help with (again, more of this shortly), but there is no legal obligation at all on the police to accept the preference to delegate or to go to Michael’s house and bring him back to hospital after failing to return from authorised leave.

WHAT DOES THE CODE SAY

The Code of Practice is relevant here, but it’s not determinant.  Chapters 16 and 17 cover issues which touch on conveyance: chapter 16 relates to police powers under s135 and s136 MHA; chapter 17 on conveyance under the Act more generally (and chapter 28 on AWOL patients, where this discussions emerge around re-turning rather than admitting people). You’ll notice that paragraph 17.34 states something about police support being requested where patients are ‘violent or dangerous’. This needs a considerable degree of untangling and I’d say again in advance: I am in no way, shape or form trying to be pedantic just to force an argument! The points which follow have been legally or clinically relevant in real cases, in the real world, some of them before Coroners after people have died and others with the Independent Office for Police Conduct after mandatory referral of incidents for investigation – so we must take these matters seriously if we are to convince people that lessons are learned!

Firstly, ‘violent or dangerous’ cannot be the same thing as ‘resistant or refusing’. The fact that a patient is sitting in their arm-chair, verbally refusing to go and telling everywhere where to step off does NOT mean that the thresholds in the Code are met. The violent or dangerous threshold might relate to something in that person’s past (for example, previous assaultative behaviours, use of weapons, convictions for violence, etc., etc.) but in the absence of those antecedents, passive resistance is not ‘violence or danger’. So, given everyone’s love of the Code of Practice, if you’re going to be calling for the police for passive resistance only, you are breaching the Code and the reasons for this therefore need to be documented: so what are the reasons? If you accept they are ‘because we haven’t got access to other options’ or ‘bosses have failed to plan and prepare’ then perhaps the solution is to escalate to bosses or on-call managers and ask them to spot purchase conveyance from a relevant organisation?

Even where the ‘violent or dangerous’ thresholds are objectively met, this still doesn’t mean the police should rock up, unthinking and just do as they’re told. There could still be reasons to say no. Various examples come to mind … the request to one police force that they should move a violent, naked patient to a Psychiatric Intensive Care Unit which was over 300 miles away from the police station in which he had been ‘sectioned’. Bluntly: nope – that’s not happening in a million years! How on EARTH are the police supposed to ensure the safety and dignity of such a patient over such a journey?!  Who the hell starts to think about a +300mile journey without wondering where they might stop en route for a cuppa or a toilet break? (Exeter Services on our route to Cornwall, 250 miles away from is always our favourite spot, roughly half way – but the police aren’t going to be marching a naked intensive care unit patient in there are they?!).  Get your managers: get the cheque book out and ensure the prevention of an Article 3 disaster by ensuring appropriate conveyance by trained staff in an appropriate vehicle with relevant facilities and equipment to support vulnerable people.

The other example is medically frail people, often elderly patients.  Yes, I’m very, Very, VERY aware that some of the most significant violence offered to mental health professionals can come from elderly, distressed patients.  No, I’m not trying to argue that the fact someone is elderly means the police can always say there’s a different or a better way and that we must remain uninvolved.  I’ve been to a number of these jobs over the years where the request is to coerce someone in their 70s or 80s and who, in addition to their mental health problems, is also physically very frail. Mobility issues, diabetes, brittle bones, blood pressure or breathing problems, to name just a few.  Are we seriously suggesting we want the police to coerce the elderly from their homes using techniques which are expressly banned by the Code of Practice (restraint techniques in policing are predicated upon the deliberate application of pain, for the most part.)  Not on my elderly relatives, thank you – and this personal statement is not hypothetical. Sort it properly with planning, accepting (again) that not everything can be planned for.

PROMOTING COOPERATION

In the Facebook thread which promotes this post, various comments allude to the fact that uniforms promote cooperation (or a similar phrase, amounting to the same thing), but it is a legitimate question to ask: is it the role of the police to promote that cooperation? Again, this isn’t mere pedantry: people are entitled to make decisions for themselves, even unwise ones, about whether they wish to cooperate with the MH system and if they lack capacity or are ‘sectioned’ (two different things) then the professionals and organisations who have chosen to coerce them have legal responsibilities to plan and be prepared for foreseeable risks – no-one here is pretending that everything is ‘foreseeable’ and therefore the police will always have some role to play, but it should be minimised. Is it foreseeable today that at some stage during the remainder of 2019, a patient who has been ‘sectioned’ under the MHA will resist or refuse conveyance?!

Of course it is! – so we must (by law) plan and prepare for this and the answer cannot always be “call the police!!”

Most of what I’ve said so far is an argument about legal responsibilities for organisations to plan to do things properly wherever possible and not rely on third-party organisations.  (There used to be a phrase somewhere in a previous edition of the Code of Practice which made it clear, NHS commissioners should not rely on external bodies to discharge their legal responsibilities). But there is an argument which can’t be ignored about police resources – they are simply not available in the way they were. Perhaps policing and police bosses have a responsibility here, too: perhaps we have allowed ourselves to be drawn in to things which are not our legal responsibility at all, but having done so, we’ve created a dependence upon our willingness to do so when asked, despite the legal and clinical dangers involved? Remember, Coroner’s have had to untangle some of this stuff and the IOPC have had to investigate professional conduct issues in policing. The kinds of things that can go wrong when we all-too-quickly over-expose ourselves are not hypothetical!

Far from it, I regret to say.

If you want some examples, look up elsewhere on this blog and the cases of David Stacey or Alan Bailey … there are many others and I’m aware of some active IOPC investigations, also.  Of course, where risks escalate unexpectedly and urgency is required, the police will have a role.  Nothing I’m saying here about planning and preparation pretends that everything can be planned around and that the police should play no role at all – that’s not reality.  But the extent of reliance should be minimised to the extent that it can be.  My argument here is that we can’t pretend we’ve done this yet and we still over-rely on the police.  This is not just my view: Her Majesty’s Inspectorate of Constabulary said the same thing in their 2018 report on Policing and Mental Health and the title of their report gives the clue, it was called “Picking Up the Pieces“.

JOINT POLICIES

Finally, one of the problems is joint operating protocols. The Code of Practice demands that Chief Constables agree protocols for MHA related work on four different issues –

  • Section 136 and places of safety;
  • MHA assessments in private homes inc s135(1) warrants;
  • AWOL patients inc s135(2) warrants; and
  • MHA conveyance.

I’ve always suggested conveyance be dealt with as part of any agreement on the other three issues because each of them gives rise to the need for conveyance – so either three documents with agreement; or one large document covering the three matters, inc conveyance.

In the real world, we often see problems with these protocols and relevant to this post are the policies I’ve seen where Chief Constables have agreed that all resisted and refused conveyance is a job for the police – without any further qualification of any kind to take account of the above points and examples of things gone awry. This in turn creates very real problems for officers. If I as a duty inspector were to receive a request for conveyance and there was no ‘violent or dangerous’ threshold, am I now obliged to do the conveyance because locally policy says I should and the Chief Constable (vicariously) agreed or is it my duty to resist the request, because failing to do so means I breach the Code of Practice? Even if the threshold were met, if I have concerns about the excessive distance, the lack of clinical support for that transfer or my ability to ensure the dignity or safety of the patient (safety is not just about physical containment and not just about physical safety), am I still obliged to do it because the Chief Constable (vicariously) agreed or is it my legal duty to resist because of the legal and clinical dangers involved?

And of course: if I do resist, how will this be received by the AMHP who will no doubt be holding a copy of the relevant policy where my bosses said I would do this, only to find that I’m refusing? Do I now find myself on the receiving end of an escalation to my bosses or indeed, a formal complaint. And this is the big issue in policing and mental health, for me: to what extent is it for operational police officers to bear the responsibility and pressures of systems which are NOT predicated on a detailed understanding of the relevant laws, statutory guidance and other professional guidance? I would argue the answer is “Not at all their responsibility” – but until we get policies predicated upon these things, that tension will always exist and officers will either be drawn into a vacuum of planning and preparation that is hard to resist; OR they will be obliged to ask themselves “Do I want to exceed my legal duty (or even my legal authority) or risk disciplinary investigation or worse, if things go awry.”

Absolutely invidious and as a police officer recently returned to operational duties who has before and no doubt  will again face this predicament, I’m entitled to expect better of the system I’m exepcted to navigate so we can all serve the public more effectively; and with dignity.  Much, much more planning for entirely foreseeable risks, please!


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


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