Voluntary to ED

I continue to read the website of the Chief Coroner, where Preventing Future Death (PFD) reports are published and came across the recent notice after the inquest for Mr Anthony Preston, in Essex.  Many PFDs raise similar issues and I’ve written before about what PFDs are and collated many of those which I think are relevant to claims of lessons learned.  I’ve now added the notice for Mr Preston because I think it shows in PFD form issues which haven’t been raised in such notices previously.  My point here is, that they are common dilemmas which are all-too-thankfully not related to deaths.  I’m keen to emphasise this PFD notice precisely because it’s always been obvious they could be and if ’lessons learned claims’ are to be taken seriously, then this report needs notice, in my view.

I encourage you to read the entire notice, not least to see evidence from the Coroner of things I will mention which will surprise you and which you’d be entitled to question if I weren’t showing the source of the claim.  That said, a summary of the lead to Mr Preston’s death:  police were called by a friend to a concern for his welfare.  Upon arrival, he was partially naked, under the influence of alcohol with lacerations to his wrist and he’d laid out clothes for his coffin and written goodbye letters.  In the absence of powers under s136 MHA (inside a dwelling) the police could not detain him for assessment but he agreed to attend A&E with the ambulance service for assessment.  The police did not escort him there and after arrival at hopsital, he chose to leave before being seen and this was reported to the police.  He was not treated as a missing person at that point (high risk or otherwise) and he following morning, his community mental health team attended his home address and the police were called.  He was found deceased in his home.

The Coroner observed in her PFD notice:  The matter had already been referred to the IOPC. That investigation gave no concerns around the inactions of Essex Police. This causes me great concern.

MANY QUESTIONS

There are a lot of questions in my mind from reading the report.  In all fairness to everyone, they may well have answers and simply not be included in the PFD.  Neither can I find trace of the IOPC investigation on their website when searching investigations for Essex police.  That said, some of questions are as follows —

  • What view was taken about the decision not to follow the ambulance to A&E? — it’s absolutely obvious no power existed under s136 MHA in the dwelling to which the police were called, but this doesn’t mean that police are prohibited from following the ambulance to A&E.  Doing so would mean, that should the grounds for use of s136 MHA become justified later, it can be enacted and the answer to the question needs to be seen in the context of a suicidal man who has made end of life plans, has attempted self-harm and is under the influence of alcohol.
  • Why was absconding from ED not treated as a missing person? — the Coroner herself refers to this in the notice: given the obvious risk situation, a decision to leave ED before assessment may well have been a situation where life was at risk.  The fact that Mr Preston may have been at liberty to make that choice to leave, doesn’t mean he cannot also be a high risk missing person who should be found and safeguarded to protect his life.
  • A lack of IOPC concerns — it may be the investigators feel they have answers to these two questions and the others which are raised and covered within the notice.  I obviously cannot know otherwise but I submit it can only maximise the potential learning from this case if those explanations were available or covered in the Coroner’s notice.  What I can know, is that a Coroner writing about her surprise overtly in a PFD at the apparent lack of concerns means we will have to infer from what we think is reasonable.

DAILY OCCURRENCE

Every day, the police service and ambulance service are jointly on the scene of suicidal and para-suicidal patients and decisions have to be taken about escorting people to ED on a voluntary basis in the absence of legal powers for either agency.  There’s nothing wrong with offering someone a trip to ED where a psychiatric liaison services can be accessed, esp where the patient also has physical injuries which require attention.  But as I’ve said before on here, risk is risk, regardless of the legal context and where officers would be thinking about use of s136 MHA in different location.  Therefore, it may be necessary to think about accompanying someone to ED from situations where it is not legal to use that power.

In case of doubt, nothing in law prevents use of s136 MHA later if it cannot be lawfully used at the first point of contact.  In a previous blog on this point, I observed that one way to think about it is to wonder whether we are merely satisfied that someone has entered in to a voluntary process for assessment or whether we really need to ensure they complete that process.  It is merely key to decision-making to ensure patients like Mr Preston are making a completely free choice when asked to attend ED.  Where someone has made such a choice, they are (whether they realise it or not) then surrendering the legal protection from use of s136 MHA that their dwelling affords.  Of course, if someone has been, in effect, coerced to accept the voluntary pathway, it raises other questions.

And what if voluntary attendance had been declined? – this question came up last week on a training course I helped run and you can only apply the law (in this order) —

  1. Does the MCA offer a pathway to ED — is this a genuine liter-altering or life-threatening medical situation for someone who has reached 16yrs of age?
  2. If under 16yrs of age, the Children Act 1989 — does this offer a route to safeguarding by use of a Police Protection Order, for similar reasons?
  3. Do the police have any unilateral powers under criminal or common law? — this may involve an attempted or substantive criminal offence; or a genuine breach of the peace.
  4. The Mental Health Act 1983 may be relevant — but obviously, not s136 MHA because the situation is in a dwelling.  The only way to intervene is either via urgent assessment application under s4 MHA, where justified; or via a s135(1) MHA warrant to remove someone to a place of safety.

Yes – I realise that there will be difficulties in culture and practice with option 4.  My point is nothing other than the fact it is legal to sometimes assess someone whilst intoxicated (regardless of what the Code of Practice says in chapter 14) and that warrants can be obtained to remove someone and keep them safe, whilst they are intoxicated.  Where options 1, 2 and 3 have been ruled out as possible for legal reasons, these things may be the only options left and they are both AMHP-led, in law.  If an AMHP is not available or has decided (on the record) not to convene an assessment or seek a warrant, then officers and / or paramedics are left to decide what best to do.  Perhaps option 5 would be waiting on the premises with the person, arranging informal safeguarding by family or friends amidst suggestions of ringing 999 if things escalate or deteriorate. All you can do is remember what the legal frameworks allow and do your best.

You may not have a legal power, so just ensure you’ve informed everyone who does or may.

VOLUNTARY ATTENDANCE

But the big lessons with wider applicability to other versions of similar scenarios after reading the sad case of Mr Preston is to ensure that where decisions lead to voluntary attendance at ED for suicidal, self-injured or distressed patients (esp where there is alcohol involved) is to consider whether a decision not to accompany them will be defendable in the eventuality we now have to ponder here.  If the person walks out after the ambulance have delivered the person to hospital and / or the triage checks by ED, will the decision to have them unrestricted in ED stand up to scrutiny.  It’s what we might call a multi-dimensional threat assessment: he’s agreeing to go now and remain there, but do we think that means he will remain in agreement for the next X number of hours, given that could be a large number of hours?

You may be asking what responsibility ED have for monitoring and / or stopping someone leaving their department? – it’s a fair question but the answer to this has always been difficult, hence the suggestion in the Mental Health Act review that there should be legal change to make it simpler.  It’s not always obvious to ED staff that they have such a power and much may hang on whether the information relevant in that case was known to them after handover from police to ambulance and ambulance to ED.  ED staff cannot use the MHA to hold someone; the MCA may or may not apply (but if it did, why wasn’t it considered and used by team 999) and there is a genuine limit to how able staff may be able to rely on common law … and for how long.

The MHA Review is proposing that ED staff are given powers under s5 MHA – or something which  looks similar to s5.  These are powers for Doctors and MH nurses to briefly hold someone in a hospital, but the powers don’t currently apply to ED because patients there are not inpatients, which is a crucial aspect of the current framework.  ED is, essentially, a massive outpatient clinic and s5 MHA does not apply.  I therefore come back to the current law: was it foreseeable when a patient left their home voluntarily that the risk or legal situation may change to such an extent that s136 MHA may be required in circumstances where it may be wondered why that foreseeable circumstances was not mitigated in a multi-dimensional threat assessment?

The situation now is X – but the situation in the near future may well become Y or Z.  What can we do now to ensure that if or when Y or Z emerges that we have catered for it in our thinking and planning and are able to take mitigating action to protect the relevant parties.  << Some police officers reading this paragraph will know exactly where this MDTA thinking comes from and my question is: what prevents us applying that to mental health relates situations?  I submit nothing prevents it and claims to learn lessons from PFDs mean it’s important we do because incidents like these are daily events.


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.

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