Granting Leave

I’ve often known police officers wonder aloud as to why patients detained in mental health units under the Mental Health Act are permitted to have leave from hospital when they are a known flight or suicide risk.  Section 17 MHA allows the Responsible Clinician (MHA term for lead clinician in charge of someone’s care, usually a psychiatrist) to permit a patient to leave hospital, sometimes with conditions attached and it’s a crucial part of the process of mental health care, ahead of patients being discharged as part of their recovery.  Some patients can be detained for a considerable period of time after being acutely unwell, to imagine a person who at one point had lost the ability to make many of their own decisions and just keep them detained until they could be fully discharged, would be weird and fraught with risk – authorised leave is a part of preparing patients from discharge and building up resilience and decision-making capacity, ahead of full discharge.

GRANTING LEAVE

But none of this means all leave granted is reasonable and it does seem fair to wonder why some leave is granted in some cases.  A recent Preventing Future Deaths report shows many of the issues I’ve often known police officers question — it concerns the sad death of Alexandra Tolley in West Yorkshire.  Alex was a section 2 MHA patient who was considered especially vulnerable and very high risk.  To give you a sense of what that meant in practice, she was on 1:1 nursing observations within the hospital and this included denial of privacy when using the bathroom, in order to allow staff to ensure her safety. During detention, Alex had absconded and been returned to hospital and she had been involved in numerous incidents of self-injury, presumably leading to the degree of supervision and restriction within her care.  In the days leading up to the 27th October, Alex had been involved in no fewer than 7 self-injury incidents, including at 1pm that very day.  Despite this and the previous absconding incident, escorted leave was authorised and she in the hospital grounds with a member of staff by 1:50pm; less than an hour after attempting to harm herself.

If that may be surprising, what also emerged at the inquest in to her death, outlined in the PFD notice (link above), is prior to the leave beginning, staff made it clear to Alex that if she attempted to leave the escort, she would not be stopped, restrained or even followed.  Having gone on escorted leave, Alex left her escort at 1:50pm, the staff returned to the unit and she was reported missing to the police as high risk by 2:10pm and officers found her within an hour with an unsurvivable injury.

So in summary: someone who was on constant 1:1 obs and had been denied bathroom privacy and had attempted to self-injure at 1pm was on escorted leave and had walked away from her escort by 2pm, knowing she wouldn’t be followed or detained and leading to a missing person report to the police.  The fact there was an inquest gives you a clue about how this ended: a verdict of suicide was returned and the PFD notice is the Coroner flagging issues which, if repeated in other cases, could lead to future deaths.  The purpose of the notice is to drive any necessary correction of conditions which could prevent that.

LEAVE IT TO THE POLICE

We know this case is not isolated – it’s worth remembering the sad case of Lauren Finch in Greater Manchester which shows us the risk of leaving the return of patients to the police.  Indeed other Coroners have flagged concerns about patients in various environments being “allowed to walk” without intervention and t he discussion which usually emerges is about staff training, competence and resources to safely prevent someone walking off because it will be inherently risky to intervene.  But there are a few things to say about this and the most important point of all is the one the frontline officers often flag: why grant s17 leave in the first place, if it relates to a patient who is an obvious flight risk in a context of likely self-harm or suicide; and why are we sometimes telling patients that if they chose to breach the conditions which were imposed for their safety, that no immediate action will be taken to stop them?  I’m also interested in the Health & Safety risk assessment given the legal duty on hospitals to mitigate foreseeable risk: it’s a legal duty to mitigate foreseeable risk and failure to do so can amount to a corporate offence by the trust.

So whilst the “tactical” issue seems to be about staff have training and skills to stop or prevent someone walking to harm, there are more “operational” issues to be considered as well, about the resources available to do this and the nature of training given to those who may need to make decisions whilst escorting patients on leave.  But for me, the big issue is the more “strategic” one and it is something which should be affected by consideration of human rights – in particular, Article 2 ECHR, the right to life.  We know that some patients have been either granted leave whilst suicidal or a deliberate decision taken not tot stop them from leaving whilst suicidal; we also know that reliance upon the police to find and return those patients is fraught with risk because the police cannot guarantee to find anyone, they can only do their best.

In some situations, we know patients who have been allowed to leave hospital whilst suicidal have been dead within just a few minutes, because of immediate access to a nearby deadly mechanism – so fast, that the police were still driving their with blue lights flashing to take basic details and commence a search.  We also know, that even where officers do find people and return them to hospital, the fact there was proportionate, lawful and necessary policing has contributed to patients’ deaths – in the case of Lauren Finch, the Coroner listed the fact she was forcibly return by the police as one of the contributory factors to her death and for the avoidance of all doubt: this wasn’t criticism of the officers or any suggestion of misconduct or excessive use of force.

ARTICLE 2 ECHR

The PDF notice for Lauren Finch was not sent to the police, only to the mental health services and that’s a big clue as to the view taken about things.  We also know from older cases involving civil claims (Savage and Rabone), that courts have found a violation of Article 2 for sectioned and informal patients where suicidality is known and likely, but hospitals have failed to prevent patients leaving.  Section 6 of the Human Rights Act reminds us of the importance of ensuring someone’s European Convention rights, they must be proactively protected – not just acknowledged after the fact with reparations made.  It is unlawful to do otherwise.

I tend to agree with the general question raise by officers in a number of cases like these:  it is surely fair to wonder why someone is on escorted leave with confirmation they won’t be stopped if they choose to leave, just 50minutes after they attempted to hurt themselves, in a context where things were thought so unsafe that bathroom privacy was denied.  I admit, I cannot fathom it – not for a moment.

I also know that none of this is the point where officers are informed that someone is AWOL – if they are high risk whilst AWOL, then the police’s article 2 obligations kick in and off they should go to investigate.  Issues after the fact are for managers to argue out in meetings during the daylight, but I rather suspect there’s no shortage of examples to discuss and no shortage of lessons which are repeatedly unlearned.  Hard to know what else to say about it, except to remind that this is all coming at a cost of human life and the impact that has on the families of those who died.  I remain amazed that system governance doesn’t appear to ensure that lessons are learned, despite repeated claims to the contrary.


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, 2022


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