A man was arrested recently for an alleged offence after he went in to a large store brandishing some weapons that he’d improvised from household items and this included several razor blades. Quite naturally, it led to a 999 call for the police to attended and contain the situation before any got hurt. The man was arrested and taken to the police station. After being seen by the Force Medical Examiner (FME) a full Mental Health Act (MHA) assessment was requested and after this was conducted the custody officer was informed that it was the intention to admit the man on a voluntary basis to the local mental health hospital. There was then some professional conflict between the custody sergeant and the professionals about how to resolve the incident, the sergeant feeling that the man shouldn’t be going anywhere on a voluntary basis, given what he felt were the risks of absconding or of the patient just changing his mind whilst travelling or upon arrival.
So a discussion broke out, can you ‘section’ someone so they are detained under the MHA itself, if they are consenting to admission, with capacity to make that choice? Well, it’s clear that you could, legally speaking – see chapter fourteen of the Code of Practice to the Mental Health Act 1983. It therefore raises the question of when you should? The Code outlines –
14.14 – When a patient needs to be in hospital, informal admission is usually appropriate when a patient who has the capacity to give or to refuse consent is consenting to admission. (See chapter 19 for guidance on when parents might consent to admission on behalf of children and young people.)
14.15 – This should not be regarded as an absolute rule, especially if the reason for considering admission is that the patient presents a clear risk to themselves or others because of their mental disorder.
14.16 – Compulsory admission should, in particular, be considered where a patient’s current mental state, together with reliable evidence of past experience, indicates a strong likelihood that they will have a change of mind about informal admission, either before or after they are admitted, with a resulting risk to their health or safety or to the safety of other people.
14.17 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).
COMPELLING THE WILLING
The police officers asked for consideration of the man being ‘sectioned’ despite his willingness, given that the crisis incident which gave rise to his arrest and assessment involved homemade weapons being brandished towards members of the public. There was a sense that only good fortune had avoided injury being caused. The AMHP and DRs were not satisfied: after initially indicating that the man could NOT be ‘sectioned’ where he was consenting with capacity to admission, they admitted being unaware of the above provisions which had been shown to them by the duty inspector involved. They stood their ground and requested that the police assist services to convey the man on a voluntary basis to hospital which then raises further questions, both for them and for the police: if the man is willing, why does he need a police escort; and do the police have a duty to become involved in the conveyance of a man who is not legally detained and who could not be prevented from leaving the vehicle or refusing to enter the hospital building?
I admit that I’m not sure I would want to be involved in it, if I’m honest – and I suspect I could argue no obligation to do so. Why would I want my decision-making intensively scrutinised by the IPCC for failing to prevent a situation unfolding that I had no power to prevent until the man attempted to commit a criminal offence? … it’s not a criminal offence to change your mind about admission to hospital on a voluntary basis. When the question arose about what would be expected if problems did emerge en route, mental health professionals suggested the man could be “arrested by the police” to prevent him ‘absconding’ … precisely what he would be arrested for, remained unspecified and unclear but perhaps more importantly, this seemed to betray a belief on the part of those who assessed him that the situation should not be allowed to develop in such a way as to allow him to exercise his legal right to liberty. Perhaps this was because of the risks, involved?! Either way, it would be a de facto detention; in addition to putting the police into a predicament.
TRANSFERRING RISKS AND LIABILITIES
This all raises an important debate: does it demonstrate a tendency to prefer risks to be borne, tolerated and absorbed by police officers who have been somewhat cajoled in to a situation they cannot control? Legal responsibility for the consequences of decisions arising in the MHA assessment sit with the AMHP and DRs involved, not the officers who originally arrested the man. If it is legally possible and occasionally necessary to ‘section’ someone who is willing to attend hospital and has capacity to decide, then what are those situations if they are not those related to ensuring a legal framework is wrapped around people who, because of their illness, represent a risk to themselves and also to others if they do not remain?! I’m struggling to think of one.
When I discussed this incident, it reminded me of an interview given by the medical director of Southern Health NHS Trust about repeated escapes from hospital premises of people who are in fact detained under the MHA. Dr Lesley STEVENS said of patients in mental health units, “We don’t lock people up.” Even allowing for her deliberate choice of language to which any of us could take exception when referring to people who are unwell, it does remain true that our mental health system is responsible for detaining people against their will and stated cases make it clear that this duty extends to keeping people detained in circumstances where the risk of them leaving is too great to tolerate. Pick another term that ‘locked up’ by all means, but let’s not pretend that services for those made subject to the MHA should be a revolving door where people can come and go as they please. The flip side of this is, where patients like the man with the homemade weapons is, in fact, detained; he should be afforded the courtesy of this being formalised so that he has legal rights within the system that is detaining him, he can have those decisions reviewed and can challenge them if he feels the need.
Learning points here – those who consent with capacity to MHA admission can be sectioned if there is a reason to do so; the police have no obvious legal duties to convey voluntary patients and we create risks and liabilities for the public and the officers if we insist upon doing this in circumstances where the AMHP / DR would expect the police to keep the person against their will until admission is achieved.