The Right to Life

As far as I can tell, the tragic death of 60yr old Mr Michael Thompson in March 2016 was not widely covered by the media.  An inquest in Southwark in 2017 returned a verdict that Mr Thompson had died an accidental death after he set fire to his own property whilst in mental health crisis at home.  He died from the effects of smoke inhalation, bringing on a cardiac arrest, contributed to by his mental health crisis meaning he was unlikely to have understood what he was doing in setting the fire.  It’s all kinds of tragic on its own, but in the 18hrs or so prior to the Fire Service pulling Mr Thompson from the building and beginning CPR, there was contact by the police and ambulance services and this was examined at the inquest.  The court considered what powers, if any, may have been available to police and paramedics on scene the previous evening after Mr Thompson’s family had called 999 hoping somebody, somewhere could do something.  This followed attempts to engage a GP or MH team, given previous mental health problems in years previous.

Suffice to say: the court offered no criticism of the professional assessment that there were no legal powers by which the 999 agencies could unilaterally intervene (although there was criticism of communications and administration matters, relating to the broader picture) and there was acceptance the ambulance service, partly on police advice, had referred the matter to the out of hours GP service for Mr Thompson’s area, who had, in turn, referred the matter to the Local Authority of Bromley’s Approved Mental Health Professional team, for consideration of whether a Mental Health Act assessment should be convened.  The council did not act meaningfully to protect Mr Thompson prior to the call to the Fire Brigade and the inquest offered criticism of that.  I’ve recently learned that Mr Thompson’s daughters brought and won a civil claim against the London authority of Bromley, for their non-response, specifically securing a judgment that this was a breach of their father’s (and indirectly, their) Article 2 right to life.

Whilst looking for that court judgment online, I found a Safeguarding Adults Review from Bromley Council which contains much more detail, for those of you who are interested in reading it but arising from it, this is my point >> where legal intervention is required to safeguard someone at risk, there are some, limited situations where the only professional in England and Wales who can access the relevant legal mechanisms is an Approved Mental Health Professional (AMHP) – they alone can secure a warrant under s135(1) MHA and they tend to make majority of applications for someone’s admission to hospital under the MHA.  It’s therefore important that relevant and appropriate cases are put to them for consideration and all police and paramedics need to know about section section 13 MHA.

AMHP FRIENDS

I’ve said publicly a number of times: I wouldn’t do the AMHP role for all the money in the world – it’s an absolutely essential function which is, in my opinion, woefully underpaid for the responsibility carried and crucially, despite that responsibility, AMHPs are not legal empowered to command and direct the resources they may require to mitigate risks.  They cannot command ambulance services to convey people detained under the Act, they cannot direct police officers to restraint and remove people who are resistant to admission or removal from their home, they cannot direct the NHS to magic up an inpatient bed even once a situation has led to a decision to ‘section’ someone.  If you want to know more about the AMHP role (and please take the time to understand the circus these good people are running), then read a post I wrote a couple of years ago on an awareness raising day — plenty of professionals who regularly need to work with and call upon AMHPs don’t know what the AMHP acronym stands for, that’s how misunderstood their role is.

Approved Mental Health Professional – it’s a statutory term and these people carry warrants cards: they are legal officers, amongst other things.

In the case of Mr Thompson, referral was made to the AMHP service and the safeguarding review details absent and confused communication, pointing out that when an out-of-hours GP who had not seen Mr Thompson referred the case for “urgent” MHA assessment, they did not pass on certain information. The Review indicates the decision to delay convening a MHA assessment until the morning was reasonable based on what was known, but the report could have said more in my view about the need for those accepting referrals to ask questions of those making them.  Communication is, of course, a two-way process.

But the substantive point remains: some legal situations can only be addressed by AMHPs, because they alone have legal rights and responsibilities and it would seem a court has found their Article 2 responsibilities are engaged when referrals are made to them.  This is important to the emergency services, especially where they may find themselves on scene without the legal authority to resolve a situation where future risk is predicted and where, for example, police officers would have considered use of s136 MHA if they had been in a location where the power could be used.

ARTICLE 2 RIGHT TO LIFE

This blog about a 5yr old case is prompted by learning that Mr Thompson’s relatives brought that civil claim against the Council’s AMHP service.  The press release from the solicitor who represented Mr Thompson’s daughters stated that a judge ruled at London County Court the council were liable for failing to protect Mr Thompson’s right to life (and, presumably, their right to life because relatives can have indirect Article 2 rights in respect of their relatives who die after state action or inaction).

So why the blog post?

Despite moving on to an operational role, I continue to receive a number of enquiries about MH law related matters and this week alone I have received three – two from different officers about difficulties navigating the MCA interface with the ambulance service; another from a paramedic asking roughly similar things – and none of them were from London, so it shows that the kinds of considerations I’m alluding to here are all relevant in 2021 when #team999 are in homess, out-of-hours and attempting to navigate their way.

In this week’s queries, there were obvious concerns about a patient’s mental health, none of them were situations where the MCA would apply and the only legal interventions in England and Wales would be  those which required an AMHP-led intervention: either a s135(1) warrant or a AMHP-led MHA assessment with a view to s4 admission if the matter was urgent; or s2/3 if that could be arranged in a timescale consistent with risk.

NOT AN EMERGENCY SERVICE

The esteemed blogger the Masked AMHP posted a couple of years ago about whether AMHPs were an ‘emergency service’ and rightly pointed out the problems and limitations with expecting AMHPs to jump in to action at a moment’s notice.  As I pointed out in my blog response to his post: there sometimes can be no other solution to the safeguarding risk, unless you’re arguing the police or paramedics should wilfully disregard the legal frameworks.

I could write a whole post about the various reviews, discussions and debates about reforming MH law in the last 5yrs and which will continue in the coming years as the MHA is pending further review – suffice to say here, it is the deliberate and recent will of Parliament that police officers do not have powers to act in private premises where there is a mental health crisis and someone is in immediate need or care or control.  It is the will of Parliament that other agencies lead the response or support the police – so you need to make sure you give them that choice and that chance.

  • An AMHP may make application for a Magistrate for a s135(1) warrant to remove the person to a Place of safety for up to 24hrs for assessment of whether an MHA application is required.
  • An AMHP may attend the location with one registered medical practitioner (whether or not they are s12 approved) and if the ‘urgency’ criteria are satisfied, make an application under s4 MHA for someone’s admission to hospital.  << It’s far from ideal but I submit it would be lawful to make an application to a hospital with a MHA Place of Safety and remove the person there, pending identification of an inpatient bed, if the alternative were to leave people at risk at home.
  • An AMHP may attend with two doctors, inc a s12 doctor and make a full MHA application – if there is difficult in identifying a bed, don’t forget the obligation on the CCG to maintain a list of hospitals which can receive patients in circumstances of special urgency – this is outlined in section 140 MHA and has been subject to consideration in two inquests that I’m aware of.  I’m also aware, the non-compliance with s140 has been mentioned by the CQC in recent thematic reviews of MHA issues and is touched upon in the MHA Code of Practice.
  • Finally, never forget that duty on the Local Authority under s13 MHA – they must arrange for an AMHP to “consider the need” for an application if they have reason to believe an application may be required.

So if you are from #team999 and you find yourself in a position which feels a little similar to that faced by the LAS and Metropolitan Police in 2016, don’t be put off referring to your supervisors and / or to the Local Authority’s AMHP service (with or without the referral via the GP / MH team) – the Local Authority has a legal duty under section 13 MHA to ensure an AMHP considers the need for a MHA assessment in a situation where an application may be needed.  So if you’re a cop and thinking you’d be using s136 MHA if you were in a relevant place to do so, it’s fair to wonder whether an application may be needed – in some areas of the country, 50% of s136 detentions lead to hospital admission and many more lead to referrals to specialist or community mental health services.

The Safeguarding Review after Mr Thompson’s death made the point clearly: the emergency services need to have the numbers and access to make these referrals where they think it may be needed.  It’s up to Local Authorities to plan and prepared for this reality and it’s not for front-line police or paramedics to absorb responsibility for the difficulties that arising in making this happen.  I do realise the implications of all this place a little pressure on the already pressurised AMHP role, but it reflects the legal reality that is the will of Parliament:  some interventions can only be resolved by an AMHP.  Good luck to the AMHPs – I can only repeat you have my respect for daring to do the important things you do.


Winner of the President’s Medal,
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award

 

All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2021


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 – www.legislation.gov.uk