IMG_0094

Para 16.16 to the Code of Practice

It turns out I didn’t read the new (2015) Code of Practice to the Mental Health Act 1983 as closely as I thought I had! The @LovelyClaireyA from Twitter said something recently about the execution of warrants under section 135(1) that didn’t sound right to me and I was grateful to learn something new after she pointed me to the Code of Practice – paragraph 16.16. This paragraph has no equivalent in the preceding Code, hence it gives rise to a few new questions; and so having made a mental note to consider this a topic for the future, I got on with my weekend. Within 36hrs of speaking to Claire, I received an email from a police control room inspector seeking clarification on the execution of s135(1) warrants after an operational incident in his force area. The job had caused a disagreement with the AMHP who was accompanying the officers in executing the warrant and I therefore thought I’d prioritise getting this done, since my general rule is that two or more things new to me in the same week means it’s probably occurring a lot more frequently and worth covering.

It all surrounds the question of conveyance from an address where a s135(1) warrant has been executed, in order to remove someone to a Place of Safety (PoS) for assessment under the Act or for arrangements to be made for that person’s treatment or care. The warrant, which can only be executed by the police, contains two legal powers: one to force entry to the premises, if need be; the other to remove that person to the PoS, if thought fit. Once inside the premises, the Code requires the AMHP and Doctor to consider (para 16.8) whether any assessment can occur there with the consent of the patient or whether removal is necessary. Historically, removal to the PoS has been best done in a non-police vehicle wherever possible and practicable; but police officers would normally remain involved until arrival at the PoS by physically accompanying the patient in the ambulance, or in whichever vehicle is used if no ambulance is available.

So what does this new paragraph in the Code actually say? –

“When taking the person to a place of safety on a section 135 warrant, the AMHP, hospital managers or the local authority (as appropriate) should ensure that an ambulance or other transport is available to take the person to the place of safety or to the place where they ought to be, in accordance with a locally agreed policy on the transport of patients under the Act (see chapter 17). It may be helpful for the AMHP to escort the person or meet them on arrival at the place of safety, in order to ensure continuity of care and to provide information for the hand-over. The police should not normally be needed to transport the person or to escort them for a section 135 warrant.”

GETTING PRACTICAL

This is saying – if Claire and I have read it correctly! – that upon entry to the building and following any decision to remove the person to a PoS, the police “should not normally be needed to transport or escort them” [my emphasis]. So, the AMHP (and paramedics) can lawfully do this, according to the new Code. Presumably, this also amounts to a legal process whereby, the AMHP and others could use reasonable force, consistent with keeping themselves safe, if the need arose during conveyance. I can hear the objections already and I understand them! – but this will come down to a distinction between what the law and the Code say (the law and the Code, not being the same thing!) and the reality of AMHPing and paramedicine, and their professional views about what they should be contributing to these situations.

I will come back to this question: if the MHA allows restriction of people made subject to the Act by professionals other than police officers, in what circumstances do professionals other than police officers use this powers, other than in situations which occur involving detained patients on hospital wards?

  • Meanwhile, in reality  – there is nothing unusual about discussions about what role the police should play in administering the implications of Mental Health Act when it comes to conveyance or restriction upon those who are subject to it. If an AMHP had conducted an assessment in the house and ‘sectioned’ the person, there is a common debate about how to convey the person under s6 MHA to hospital. The same rules apply: it should not normally be done in a police vehicle and, in reality, the AMHP should be able to arrange an ambulance but the police still find they are all too often connected to admission conveyance because no ambulance is available or because someone is resistant to admission. Remember: the Code of Practice does NOT demand police involvement purely because someone is resistant. Only where they are ‘violent or dangerous’. This situation is little different, in many respects.
  • Drafting of the Code – having thrown this topic about on social medica after discussion with Claire, some suggested there is confusion and contradiction in the drafting of the Code itself. Paragraph 16.3 informs us what the purpose of the s135(1) warrant actually is: it is to provide “police officers with a power of entry to private premises, for the purposes of removing the person to a place of safety for a mental health assessment or for other arrangements to be made for their treatment or care.” So if the legal power belongs to a police officer, can someone else discharge it if the police also disengage from the process? Some think not; however there are other, similar examples available where others have acted on behalf of a police officer, even though they’ve disengaged (see below).  If you look at paragraph 16.14 of the Code, it also creates a touch of confusion about who should be doing what, in this context.

WIDER IMPLICATIONS

So if something is ‘not normal’, in terms of frequency, what does that mean?! We can surely start by agreeing it probably means, ‘not most of the time’? Could we go even further and agree it should happen on a minority of occasions, perhaps only where certain criteria are met? The overall idea from Chapter 17 of the Code (which covers conveyance) is the police should be involved in the conveyance of a person only where they are ‘violent or dangerous’. This is where my inspector colleague on email found that he had done what the Code suggests only to bump up against an AMHP who would have preferred the Code be disregarded in the circumstances. Having entered the building and a decision having been taken to remove the person to the PoS, the police withdrew from the incident and suggested the AMHP should make the necessary arrangements to convey the person.

So that brings us back to what a Code of Practice actually is – I remarked many years ago that we all too often see the Code as some kind of vital document that cannot be breached. Yet when it is convenient to argue so; it is something that is quickly set aside – many examples are available to highlight the contradiction this represents and this situation is just another example of the latter. Conveyance of resistant individuals all too often involves the police where they are neither violent nor dangerous because, quite simply, there is no other arrangement by which to do so. No planning takes place (that I am aware of) to ensure that AMHPs can call upon the necessary, non-police support in these situations. There are still long delays for ambulances; there are usually no other conveyance mechanisms and there are certainly no other staff who could assist in supporting a resistant, frightened patient without potentially terrifying them by calling the police. Why? – do commissioners and managers not ask themselves “If the Act or Code says this, what does that mean in the real world and how would we actually get it done?”

This kind of discussion emerged in Hampshire a year or so back when the MH Trust and the police commissioned a service to ensure that officers who had used s136 of the Mental Health Act could handover the care of someone at the point of arrest –  whilst still in the street – to trained staff who would then remove the person to the Place of Safety (on behalf of the Chief Constable) and remain there (on behalf of the MH Trust) to ensure the wellbeing of the person pending assessment. Then, as now, some questioned whether or not the first part of this would be lawful given the same argument: it is a police power to remove the person to the PoS, so can it be delegated where the Act itself does not explicitly say so? Well, there are various other situations in which police powers are delegated to others, so why not s136 MHA? – why not s135(1) MHA, especially as the Code seems to be encouraging it. The relevant services in Hampshire are certainly satisfied, on legal advice, that it can.

Let me conclude with this remark: I didn’t write the Code and as far as I’m aware, the police didn’t offer a contribution in the consultation for the Code that something like this paragraph be included! Nevertheless, it seems we now need to start talking about it because the Munjaz case (2005) reminds us that we should only be breaching the Code of Practice if there are “cogent reasons for departure”. The poor AMHP in my colleague’s situation probably thought, “How on earth do I get this done, if the police don’t or won’t help?!” That probably amounts to a cogent reason for them as an individual professional but back everything comes to strategic planning and joint operating protocols: has every area updated their local protocols on MHA assessments in private premises and / or conveyance since 2015 to specify how this stuff gets done along with commissioning managers making the necessary policy changes to ensure that AMHPs aren’t in that position in the first place? … and if not, why not?!


IMG_0053IMG_0052Winner of the President’sMedal from the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award


humanrights

Threatening Patients

When I was a young boy, I can vaguely remember my dear Godmother once saying something about calling the police if I was naughty, saying the police would “take you away”. Without missing a beat, I remember my mother responding quickly and firmly, “Don’t say that to him!” She went on to explain that the police do not, in fact, take kids away for being naughty; that she needed me to understand that a police officer is somebody I can go to for help if I was ever stuck or in trouble; and that she should never, ever say that to me again.  WOW! 😳

It is probably this incident that accounts for my hatred of hearing adults say similar things to their kids. I’ve been known to be the policeman who kneels down next to kids and says, “What you’ve just been told isn’t true – we don’t take young children away from their parents for being naughty because police officers are there to help you and protect you if you’re in trouble.” I then usually explain my reasons to the parents and ask them not to do it in future, because they would probably agree that if I saw their child in danger, they would want them to ask me for help and they would expect me to give it. Hard to do that if the kids are running away, frightened of me.

So there’s a version of this in policing & mental health land and it’s occured enough times this week, in various scenarios, that you will have to let me get this off my chest!

WASTING POLICE TIME

A Twitter conversation this evening has revealed that @MindourMinds has documented six recent examples across England of patients being threatened with arrest for wasting police time, following apparent suicidality. This is not the first time I’ve heard of this and just to be crystal clear: it’s not the police threatening to arrest and prosecute patients – it’s apparently mental health professionals. I regret to confirm I have heard of one example of such a case being brought but, quite rightly (I’ve seen many of the legal papers) it was dropped at court for being fairly ridiculous.

Wasting police time is a criminal offence, of course: but it is highly unlikely that any incident of suicidality, including any attempt, would be considered an example of it. The legal definition is within s5(2) of the Criminal Law Act 1967, “Where a person causes any wasteful employment of the police by knowingly making to any person a false report tending to show that an offence has been committed, or to give rise to apprehension for the safety of any persons or property, or tending to show that he has information material to any police inquiry, he shall be liable.”

“Wasteful” … and “knowingly making a false report”. I admit I’m struggling to understand how a patient ringing mental health services and claiming to be suicidal is a waste of police time? Even if the CrisisTeam felt obliged to then seek an urgent ‘safe and well’ check because of concerns for that person’s immediate safety; how do you prove that this was ‘wasteful’?! But of course, finally: even if the patient actually had told a blatant pack of lies to encourage MH services to provide some kind of service or to facilitate admission to hospital – even then: it wasn’t the patient that rang the police and caused their ’employment’, wasteful or otherwise. 

INHERENT CONTRADICTION

So it’s highly doubtful that there would be sufficient evidence to charge someone in these circumstances and I’ve only known it happen that once – it was dropped at court. How do you prove beyond all reasonable doubt that a person with mental health problems who claims to be suicidal, actually isn’t?! … you can’t prove a negative, as they say.  Even then, there’s the requirement to show that person caused wasteful employment of the police by making a false statement if concerns by healthcare staff were serious enough that they rang the police to check on someone’s welfare?!

That’s the inherent contradiction here: the person ringing mental health services is either making a false claim in which case there’s no need to ring the police; OR they are not, in which case any deployment of the police by other services is not ‘wasteful’ because the concerns have been taken sufficiently seriously to warrant the police!

So: if you are a mental health professional wrestling with these issues, do consider what would need to be proved in a court in order to go down this legal route. Otherwise, if you make these kinds of threats, you risk looking silly if it turns out the police won’t take the action you were hoping for. Of course, CrisisTeams can call the police for any reasons they think legitimate. Whether or not the police then actually do as they’re asked, is quite another matter. It has been a feature of policing research for years (see Policing Citizens by PAJ WADDINGTON) to note that police officers do not have an inherent service-provider relationship with those who call them. They may assess a situation and take the view that the caller is in the wrong and the ‘accused’ is acting perfectly properly.

The police are NOT on anybody’s side – all circumstances turn on their individual merits. 

THREATENING THE POLICE

Meanwhile, in another incident a service-user who has given permission for me to refer to this, was asked to attend a meeting without a clearly defined purpose. Suspecting it would be a Mental Health Act assessment for potential admission, they exercised their right not to attend, for various reasons that are important to them. When they failed to show up, a phone call followed in which the assessment was rescheduled and they were told that if they failed to attend on the next occasion the police would be called. This is not the first example of such a story I’ve heard over the years and I admit it also makes me feel very uneasy.

The problem with this is several-fold: firstly, what are they hoping the police will do? The obvious point to make is that any agreement by the police to attend the person’s home address means creating a situation in which the officers have no legal powers. So unless the request was being described as an urgent welfare check, necessary because of fears for someone’s life, the police could only ever knock the door and see what happens. Secondly, if there’s no reply, the officers would walk away; and if there is a reply, they can only convey the message that has already been conveyed. Thirdly, it is not a criminal offence to fail to attend an appointment with mental health services, even if it is a statutory assessment under the Mental Health Act; and officers would have no MHA powers because the person is in private premises. So why wouldn’t mental health services arrange to attend the address themselves whilst armed with a warrant to enable entry and an assessment that the police are then obliged to cooperate with?

Either way: it’s the implicit assumption that the police are a coercive arm of mental health services, to be threatened and deployed at their whim that bothers me here. It is fair enough to comment that a mental health professional may feel obliged to report a situation to the police in certain circumstances, even with their recommendation or request: but it’s ultimately for the police to decide whether the police get involved and on what legal terms. This is especially true where there are issues around criminal investigation and prosecution.

CARE AMIDST COERCION

There are various circumstances in which threatened coercion is inappropriate and this is made clear in the Code of Practice to the Mental Health Act. When it comes to the issue of patients being admitted to hospital, the Code specifies (para 14.17) that no-one should be told that if they do not agree to voluntary admission, they will be sectioned. The same applies (para 27.38) to voluntary patients who are already admitted: they should not be denied their right to leave a mental health ward under threat of being ‘sectioned’. The Care Quality Commission has referred to these kinds of situation as de facto detention – and they caution against such situations on both ethical and legal grounds.

Attempting to promote patient cooperation with a statutory assessment by threatening to call the police also creates a similar, but in my view, slightly the more sinister situation. No-one is obliged to cooperate with mental health services, unless the requisite legal frameworks are put in place, either to assess or treat their condition. If I, as a police officer, am to respect patient’s autonomy and liberty, I don’t really want to personify a threat made that I may disagree in which I’m refusing to play any part. It’s also not for mental health professionals to determine that a situation certainly amounts to an offence that could be prosecuted. I can’t help but recall the incident I encountered about a decade ago where a mental health nurse rang the police to complain of criminal damage by a patient only for my investigation to reveal unlawful detention by the nurse and the mental health services she worked for.

If the police are to be the guardians that many want to see them be, it means standing up for the rights and autonomy of patients as well as appropriately supporting mental health services. But as I said: the police are not actually on anybody’s side here!


IMG_0053IMG_0052Winner of the President’sMedal from the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award


MCA05

Restriction, Restraint or Removal?

I recently delivered some training in Leicestershire which involved explaining the Mental Capacity Act 2005 to emergency services personnel. Quite unintendedly, I ended up explaining it in a way I previously hadn’t which struck me as a more helpful approach than my previous efforts! So, I thought I’d outline it here in case it helps others.

As quick reminder, the MCA allows others to take decisions about a person who is reasonably believed, on the balance of probabilities to lack capacity. A person lacks capacity about a specific issue if they have an impairment or disturbance of the mind or brain and cannot communicate, understand, retain or employ / evaluate information relevant to that decision. For those who like mnemonics, you may remember the “ID a CURE” approach –

  • Impairment; or
  • Disturbance
  • and cannot …
  • Communicate,
  • Understand,
  • Retain; or
  • Employ / Evaluate

One from the top two and one from the bottom four and, on the balance of probabilities, you can declare a lack of capacity. But what does that allow or obliged you to then do? This is the new explanation I employed with 999 personnel they suggested sounded useful.

LEVELS OF INTERVENTION

My new contention is that there are now three levels of intervention that need to be considered: listed in the title of the post – restriction, restraint or removal. I also want to re-emphasise, that this is about 999 responding to situations that were often unpredictable and unknowable – this is not about slower-time interventions involving Best Interests Assessors and long-term decisions.

  • Restriction – undertaking actions which may restrict a person’s rights and liberties, but only to a very small degree to mitigate a risk / threat;
  • Restraint – actions which physically restrict someone quite briefly, proportionate to a greater level of risk.
  • Removal – the process of taking someone against their will to another location for medical assessment / treatment, on the basis that the situation is especially serious.

Let me use one scenario which I can then add to, to escalate through the three types of intervention as a proportionate response to a vulnerable person who lacks capacity.

CASE EXAMPLE

Imagine a 999 service is called to a private address in response to a mother (in her fifties) asking for help for her adult daughter (in her twenties) with serious mental health problems. Her daughter has become unwell over the last few days and they are awaiting a response from mental health services, but this evening, her daughter has been openly threatening to take her own life unless she is admitted to hospital is threatening to overdose on medication she has gathered. The exact nature of the medication is unknown and mum  is able to outline she has previously been admitted to hospital after a serious overdose and she has previously self-harmed.

999 responders arrive at the address and can quickly agree, they think this young woman seems extremely unwell and may need urgent assessment under the Mental Health Act. Her mother has been told in the last hour that assessment cannot occur that evening and she should call 999 or take her daughter to A&E if there are problems. A non-descript bottle of what appears to be various tablets is on the coffee table along with a razor blade and mum is confident she hasn’t yet taken any of them. The young woman is declining all offers to going to A&E for assessment of her mental health, saying she just wants to be ‘sectioned’ and in terms of efforts to explain that A&E is the route to assessment and potential admission.

In efforts to offer a more urgent pathway to assessment and potential admission or care, it seems likely that the young woman lacks capacity to take decisions because her psychosis is affecting her ability to understand what the first-responders are offering. It is decided on this basis that they will have to do ‘the least restrictive thing in her best interests.’

So what does this actually mean?!

Restriction –

The main risk at this stage, is that whilst the 999 crew is attempting to identify a route through, that the young woman will pick up the tablets or razor blade and use them to harm herself. Can you justify interfering with her property (the tablets and blade) bearing in mind that no-one has a legal right to walk in to someone else’s house and interfere with their possessions? Yes – those items are potentially very linked to the situation being managed; she’s threatened to use at least one of them in connection with the frustrations around accessing unscheduled care / assessment; and it is reasonably believed that she lacks capacity to take the decision about the solution being offered to travel to an ED for urgent assessment by psychiatric liaison services.

Could the 999 crews remove her to the ED against her will? Probably not yet – the Sessay case outlines the reasons why. The judge ruled that in such circumstances that an urgent MHA should be attempted so contact should be made with an AMHP who should be told of the mother’s belief that she needs urgent assessment is supported by those attending and that in the circumstances there is no legal mechanism available to remove the patient from the address. Unless the situation changes, the MCA would probably afford a defence to the professionals under s5 MCA, for interfering with the patient’s property to keep her safe, but it wouldn’t go beyond that.

Restraint –

Imagine that scenario with one difference: upon arrival, the young woman is holding the medication and threatening to take it consume it unless the 999 crew takes her to a mental health unit. Bearing in mind all the other circumstances and a belief that she lacks capacity, would the crew be justified in removing the medication from her possession, by restraining her in order to do so? Probably – assuming that there was a reasonable belief by the professionals that this action was a proportionate response to the seriousness of the harm the person would suffer and proportionate to the likelihood of that harm, the MCA would provide a defence under sections 5 and 6 for taking steps to protect her from the potential that she will consume the medication and cause herself irreversible harm.

Another example might include: the RTC victim who was struck by a vehicle whilst crossing the road who now has a head-injury, is intoxicated and who is hoping to leave the scene of the collision without assessment by paramedics. Whilst being unsteady on their feet and somewhat confused, it is reasonable believed that the head injury could be significant and that they lack the capacity to take the decision to decline treatment. In the first instance, they could potentially be restrained by police officers to prevent them leaving until paramedics can advise on whether there are grounds for removal to hospital without consent.

Removal –

Imagine another difference: upon arrival, the bottle of tablets is about 1/4 full and her mother informs you that she believes her daughter has consumed 3/4 of the bottle which was full only an hour beforehand. Although it can’t yet be known what precisely is in the bottle, it seems probable that such quantities of certain things could prove life altering or life threatening. It seems necessary to ensure the young woman does not ingest any more of the tablets and that she will need assessment and treatment in A&E to mitigate the effects of the overdose. The MCA does make clear, in s4A of the Act, that no-one can be deprived of their liberty under the MCA unless the criteria in s4B are satisfied – these state that someone who lacks capacity may be subject to an urgent deprivation of liberty where this is necessary to provide a life-sustaining intervention or do a vital act to prevent a serious deterioration in someone’s condition.

Our RTC victim, above, might be removed to hospital if paramedics were saying that the head-injury appeared so serious that without urgent hospital treatment, the person might – on the balance of probabilities – deteriorate and suffer a life-altering or life-threatening consequence.

EXTENDING THE MODEL

So! – we can extend the model to explain the MCA. First of all, established whether you can “ID a CURE” and where you can, you have three options and must undertake the least restrictive of them, depending upon the level of risk to the individual. If you can mitigate the risk by restriction, you will be unable to justify restraint or removal. If restriction is not possible or not appropriate, you should consider restraint first and only start to consider but not removal unless restraint is insufficient to ensure that person’s best interests and keep them safe.

Happy to take feedback on this – please leave a comment below. It ended up being an improvised explanation to a group of 999 professionals in a particular context, so keen to know whether it helps simplify what can be a complex area of law.


IMG_0053IMG_0052Winner of the President’sMedal from the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award