I’m all too wary of newspaper coverage of cases which have appeared in courtrooms. Having been directly involved in enough cases to know that coverage is necessarily partial, it often misses things which can be important to understanding what has occurred. In fairness to newspapers, they have a few hundred words to summarise hearings whose case papers can sometimes require a porter’s trolley to wheel in a number of packing cases, so things will be left out! It often means I read coverage and then say to others that I “have one or two hundred questions about all this.”
The Manchester Evening News’s recent coverage of the inquest after the death of Mr Martin Gibbons was especially interesting for a specific reason. In just two short sentences, the coverage made a claim about the assessment and response to Mr Gibbons when he was in an Emergency Department (ED) which just made me wonder about things more generally. Events leading to Mr Gibbons tragic death included his deteriorating mental health, discussion of difficulties with his sister and then being helped to ED after self-injury and consumption of alcohol. The Coroner has indicated that a Preventing Future Deaths report will be issued (not yet available, at the time of this post) and that it will flag failure to properly risk assess Mr Gibbons amidst delays in identifying a bed for his timely admission.
The lines which struck me, were these –
“Mr Gibbons was then given a choice to either stay in hospital voluntarily for psychiatric care or be sectioned under the Mental Health Act. He cooperated with staff and agreed to stay in hospital.”
I’ll (have to) assume this is a precise and accurate reflection of proceedings, for the purpose of making my substantive point, whilst bearing in mind it may not!
CODE OF PRACTICE
As soon as I read these two sentences, I thought of the statutory guidance in the Code of Practice (England) to the Mental Health Act 1983. Specifically, paragraph 14.17 states –
“The threat of detention must not be used to coerce a patient to consent to admission to hospital or to treatment (and is likely to invalidate any apparent consent).
Although this case occurred in England, it may be of note there is a similar, but non-identical provision in the Code of Practice for Wales (2016), in paragraph 14.13 –
“Using the threat of detention to agreeing to admission to hospital or for treatment is likely to invalidate any apparent consent.”
So I was left wondering: why was someone given a choice? Some may be wondering why a choice would not be given in these circumstances – after all, isn’t healthcare all about maximising patient choice and autonomy? The Codes themselves given the reason: the threat of detention, implied or otherwise, is likely to invalidate any apparent consent. It isn’t really true consent if the option to simply walk away from the offer of admission is not there. “Would you like to come to the police station to assist my inquiries? – and if you don’t, I will arrest you and take you anyway!”
“OK officer, I’ll come quietly!” etc., etc. We would all understand straightforwardly this is not a choice in any meaningful sense because I’m going to the police station whether I like it or not, aren’t I?! Mr Gibbons was being admitted to hospital, whether he liked it or not and my point is to wonder about how that felt, for him.
BEYOND PEDANTRY
This isn’t more than technicalities playing out, it’s profoundly important. Of course, Approved Mental Health Professionals (AMHPs) and doctors in Mental Health Act assessments will explore how a patient feels about admission to hospital, if they’re thinking it may be the appropriate, least restrictive way of ensuring care; and of course, those professionals will consider the question of capacity to consent to any proposed admission. It’s the precise wording of the MEN’s coverage that makes me wonder about this – how did the power dynamics play out, when it then came to the flight risk (which the Coroner seems to have suggested wasn’t properly assessed) given a rough assessment of medium to high risk of harm to himself or others?
I have to infer because it’s unclear, a considerable time may have passed from Mr Gibbons arriving in ED to him choosing to leave – a certain amount of time certainly passed. The inquest heard he had arrived in a “drunk and delirious” condition, unlikely to have been assessed under the MHA until the temporary effects of any alcohol had worn off and there was then a further delay in effecting admission to hospital on a supposed “voluntary” basis because there were inter-area discussions about an inpatient bed. Mr Gibbons had presented to an ED in Tameside (a Penine Care Mental Health Trust area) but he was a resident of Trafford (a Greater Manchester Mental Health Trust area). This raises again the debate about bed availability and inter-area dynamics in play The NHS normally seek to admit a person to their relevant home area, wherever possible and we know there can be administrative, resource and financial reasons at play as to why someone may not be more swiftly admitted to an out-of-area bed. I can think of a few AMHPs who will be wondering here about sections 13 and 140 of the Mental Health Act as well as section 6 Human Rights Act – what do these provisions actually mean in practice if the are had to realise in the real world and their implications can be apparently set aside?
Delays in admissions which appear to be necessary also contribute to the dynamics of why some patients decline to wait for admission they were told should be happening and this does have a bearing on risk assessment. Multi-dimension risk assessment involves assessing risk in the here and now as well as thinking about risk in to the future and amidst a changing situation. The risk of XY now may be medium, the risk of Z is high; but if admission is delayed by two or by ten hours, what does that mean for the risks XY and Z?! – how do I mitigate the risk now and / or prevent it rising, if that’s my prediction? Either way … my substantive question remains the impact on Mr Gibbons if he was caused to believe he had no choice but to go to hospital when he may have had views on this, notwithstanding his mental state.
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
Mental Health Cop 