Mind The Gap! – part 1

I’ve tweeted and blogged previously that there are some limited circumstances in which police officers may find themselves without powers to act in a healthcare situation to keep people safe, but without being able to ensure or motivate an NHS response either.

My comments about this have caused some to think I’m advocating an extension of police powers to allow for greater coercion, expansion of a police state, etc..  I want to say a little bit, so that I’m clear about what I’m getting at:

In a public place all over the UK, the police have powers under mental health legislation as well as powers of arrest for criminal offences, breach of the peace and so on, which would allow them a range of options to prevent harm where risk prevailed.  In a private dwelling this is not the case. Whilst the powers of arrest for crime and breach of the peace remain, there is no legal authority for the police to act alone or unilaterally, where faced with sub-criminal risks by a vulnerable person, often towards themselves.

This may include, for example, someone threatening to harm themselves at a later point in time, perhaps by overdose.  It would also include people playing around with legally possessed medication or knives etc., where they are not yet committing an offence.  Again, let’s remember: it’s not illegal to possess a knife in your own house or legally available medicines.  Illegal to threaten the police with that knife or attempt to assault them with it, but until such time as you do, it’s your house and your knife whether you’re chopping onions or wondering whether you might self-harm with it after the police have left.

Whilst remembering that the police once there would have positive duties to protect and balance human rights under Article 2 (life), Article 3 (inhumane and degrading treatment) and Article 5 (liberty), we should also remember the reality of what I call the ‘legal caveat’:

“During police attendance following a spontaneous incident or during a formal Mental Health Act assessment in a private dwelling conducted without a warrant under s135(1) or equivalent law, the police have NO powers to use force until: EITHER an AMHP – MHO in Scotland / ASW in Northern Ireland – has ‘sectioned’  the patient OR unless a criminal offence is attempted or a breach of the peace apprehended.”

After the ‘Sessey’ case we were reminded of Parliament’s required response to mental health crisis in private, which may require MHA assessment and it involved an AMHP and  DR undertaking assessment for consideration of admission under s4, or an AMHP securing a warrant under s135(1) for removal to a place of safety – s292 MH(S)A; a129(1) MHO(NI):

So one tweet I posted said this: “#UK is almost alone by not allowing its #police to force entry under #mentalhealth law to a private dwelling to deal with an #MH crisis.”  This statement is true – feel free to look up Mental Health Acts from the six states of Australia, several from Canada and from South Africa for a start.  Because I also posted other tweets on the difficulties faced by the police at around the same time, this one should not be read in isolation, as advocating an extension of police powers.

I also said this: “Either the law should enable the police to manage MH emergency in private dwellings safely; preferably, it should ensure that the NHS do so.”  I have also made it clear that I don’t mind which, ultimately.

Incidentally, a proposal to bring equity with other international jurisdictions on this issue was contained within s228 of the draft Mental Health Bill 2004, which was set aside before being enacted.  It was a proposal subject to enhanced scutiny of front line officers by mental health professionals and only for a very brief time, after which an Magistrate’s warrant would have been required for further detention.

I understand why this is controversial for some – your home is your castle, etc..

What I do think it is fine to say, is that there is a lack of legal ability – a gap – to ensuring that MH situations brought to police attention can ensure management which will consistently prevent disaster.  Notwithstanding the greater tragedy to a vulnerable individuals or their families, we can also imagine coverage of an incident which read, “Police do nothing known, suicidal mental health patient.”  It is utterly unconscionable.

So my position is this: I don’t mind what the solution is to a position whereby society expects a de facto response from its police service as mental health crisis responders but doesn’t equip them to handle the variety of demands faced.  But if it does so without entirely equipping them to manage it adequately whilst also not ensuring a response to this from its health service, then we have a problem.

There is a gap.  And that is all I’m saying, whilst highlighting just a couple of solutions.

What, if anything, should be done about this, is absolutely a matter for others.  I’m certainly not advocating for an expansion of police powers.  This will become even more important in coming years as health services continue to reduce their mental health capacity and I think we should prepare for an upturn in such calls to the police.

<<< Read a follow up which addresses some reaction to this post. >>>


Should I Stay or Should I Go?

Should the police remain at a place of safety once they have arrived at the location? – to be clear at the outset, I’m referring to the psychiatric place of safety to which most people are removed.  I am not referring to A&E when it used because of additional medical emergency or physical injury – the open nature of that environment means officers should remain until the person is either discharged entirely from s136 following assessment or transferred to the main place of safety.

There is nothing whatsoever in the Mental Health Act or the Code of Practice (Wales) to the Mental Health Act which answers this question – and everything else is guidance and opinion.  This question is a sticking point in how place of safety processes work.  I was chuffed to see the BLOG getting a mention on a nurses’ internet forum following which a (student?) nurse made a comment which prompts this post: “In theory the police should remain with the person until this is completed … now that we insist they remain with them until it has been decided whether or not further input is required they are reluctant.”

Of course the police are reluctant, not least because there is no legal basis at all for this claim.  And even if this question is addressed morally rather than legally, it is probably fair to remark that the public would wish to see their police deployed in way that means they are not remaining with patients in hospital pending assessment unless the patient poses a risk to staff where it’s obviously vital that the police protect their colleagues in the NHS.

But it is clearly understood that because of the extent of assaults on NHS mental health professionals – 68% of all assaults on NHS staff are on MH professionals – support from the police is needed in some cases.

Here’s the problem:  responses to undertake assessments of patients who are removed to a place of safety are often measured in hours and half-days.  Average response time to the place of safety in my home area (not my force) is over eight hours and the mental health provider refuses to allow the police to use the facility at all unless the chief constable agrees that two officers will remain at that location with the patient throughout the entire duration.  That PoS facility has no nurse to meet, greet and triage the patient and so the irony of the arrangements is that if the police had removed the person to the cells, they would have been seen by a police doctor within 90 minutes (average) – the place of safety facility in my home area quite effectively delays access to necessary healthcare.

And of course this comes at a cost.  When you have two large towns covered by four police officers at night and two of them are twenty-five miles away ‘guarding’ a non-resistant mental health patient – the PoS cannot be used for anyone who is violent – it means there is, for example, less capacity to respond to calls to Accident & Emergency that drunk patients are being aggressive towards staff.

One police force in the north of England were kind enough to share with me a copy of the legal advice they had received from a barrister on this very point.  They sought counsel’s advice on their obligations to remain and he was very clear:  “None whatsoever, in law, unless remaining there is necessary to prevent crime or protect life.”

So what’s the way forward?

As ever, local protocols should reflect the core roles of each agency and the Royal College Guidelines.  Parliament did not make it an obligation upon the police to remain in all situations, the Code of Practice implies there will be some situations where the police do and some where they do not, and the Royal College Standards clearly envisage the police leaving even in some situations where patients are ‘disturbed’.  Ultimately it all comes back to proper commissioning and resourcing of Place of Safety facilities which sits with PCTs.

In time-honoured tradition I prefer the compromise that all patients removed to a PoS are risk categorised as LOW, MEDIUM or HIGH.  Low risk patients are an NHS responsibility, once they police have arrived, researched background and risk and provided a full handover of information to the NHS.  High risk patients are a joint responsibility – medium risks cases should be judged case by case dependent upon the professionals involved and the patient.

Where dispute remains about whether the police stay, my force operates to the rule that we stay if we asked to do so, but if the attending officers disagree with the need for it, the case is referred to managers at the time and if still unresolved, the next day for review.  Working on the principle that there should be objective risk information to which nurses should be able to point to justify that request; some nurses have had feedback about inappropriate retention of the police.  Equally, some officers have had feedback following an insistence upon leaving when the nurse had not agreed.  This mechanism is proving over time, to build trust and lead to fewer disputes than when the process first began.

Perhaps a way of summarising all of this, it to observe that it is not for the police to staff and resource NHS places of safety because they PCT would prefer not to do so; but it is for the police to protect the professionals who work there from very real risks of assault.

AFTERTHOUGHT –  just in case any healthcare professional reading this is thinking, “But I don’t have legal authority to keep the person in a PoS for assessment, only the police can do that”.  Yes you do – s136(2) MHA.  If patients are asking to leave, keep the door shut, if they start to get aggressive because of this, then the risks have raised at least to medium so call the police back.

The Police and The Mental Capacity Act

It is important we understand at the outset: this Mental Capacity Act stuff can cause nightmares for partnership working because of the number of myths which already exist and because the police and many parts of the NHS have had little or no training.  I’m going to do a couple of posts on it – first explanatory and then later I’ll do a punchy ‘guidance’ post for police officers applying it.

Update (May 2012) >>> A simple, handy tool to approach decision making when thinking of the Mental Capacity Act is The CURE Test.

Some police forces appear to have latched on to the MCA in various circumstances, but in particular for its potential to help resolve mental health crisis situations in private premises.  There has now been a significant stated case about the MCA – the ‘Sessey’ case – after the Metropolitan Police considered its application to attending private premises where someone was suffering from mental health problems.  In circumstances where they did not or could not get an AMHP to attend and assess under the Mental Health Act, officers considered whether the MCA allowed to ‘remove’ someone to a place of safety, as if under s136 MHA, in order to be assessed for admission to hospital under the Mental Health Act.

It was agreed between the claimant and the Commissioner that there was no power to do this and the court ruled that detention in the place of safety pending assessment, had been unlawful.

Here’s my rule of thumb:  if you can avoid taking decisions – including mental health care decisions – implied by the Mental Capacity Act because there is time to call an ambulance or other health or social care professionals, you should do so.  Any intervention should be restricted to those circumstances where you absolutely must intervene in order to preserve life or prevent serious injury and this means having regard to s4B MCA – only where intervention is necessary to mitigate an immiment, life-threatening risk. Principally, decisions around capacity and healthcare should be taken by healthcare professionals – this sentence is not my view, it is a requirement of the Code of Practice to the MCA.

So how do you apply it?

  • One should determine whether someone has capacity with reference to the test in s2 MCA – nobody is asking for scientific assessment, just a properly considered decision.
  • Whether or not someone can take a decision for themselves is determined by the approach in s3 MCA.
  • One may then undertake proportionate acts to safeguard someone’s best interests (understood by reading s4 MCA) , in accordance with principles explained in s1 MCA.
  • Officers would then be protected from any legal liabilities ordinarily arising from that act, by virtue of s5 MCA, as long as they acted in good faith to do the right thing – the proper legal terminology is that you acted in the best interests of someone whom you reasonably believed lacked capacity.
  • If doing the right thing involves the ‘restraint’ of a person, it must be done in accordance with s6 MCA.
  • If one has assessed as per s4 MCA and acted in accordance with the principles of s1 MCA and acted within the spirit of s5 MCA, (then s6 MCA if restraint is required) it will provide a legal ‘defence’ to the action taken, as long as it was done in good faith.
  • There is a good explanation of how to consider the principles which underpin the Act, within chapter 2 of the Code of Practice to the MCA.

Real examples:

1.  The police are called to a private dwelling to a report of an out-of-hours GP with ambulance and family, attending to a man in his 80s who needs removing to A&E.  The GP explains that the man is thought to have had mild dementia for some while although he normally lives on his own.  The man is frail and confused because he has contracted a urinary tract infection which had affected his congitive functioning because it had become quite acute.  He’d become extremely confused over the last three or four days and become unable to look after himself – not eating or drinking – and he has soiled much of his house because he has not been using the toilet.  The GP explains that the infection has caught hold so severely that because of frailty, the man’s life is genuinely at risk if he is not taken to A&E shortly and treated with antibiotics.  Between him, the paramedics and the man’s daughter and son-in-law, they’ve tried to get him to A&E, but he is refusing and they need help.  The GP confirms that the man lacks the capacity to take this decision, because of the infection and his dementia.

2.  You attend street to a report of a robbery where man has been badly beaten whilst on his way home from a night out.  He appears intoxicated, but he has sustained head injuries in the beating and his wallet and phone have been taken.  He is wandering in and out of the road when you arrive and all attempts to verbally manage him and encourage him to safety have failed.  You use a low level of force to get him out of the road and the paramedics arrive.  They express serious concern about the head injuries, because his face is already badly swollen and cut.  You all attempt to get the man into the ambulance for removal to hospital, but he declines.  Between you and the paramedics, it is suggested that his intoxication probably prevents him understanding the extent of his injuries and the potential consequences of them not being assessed and treated more or less immediately.  They cannot rule out the possibility that the injuries sustained have been very serious indeed, potentially life altering and everyone is agreed that because of alcohol, disorientation and quite possibly shock and pain from the injuries themselves, he lacks capacity to decline treatment.

Not a substitute for the Mental Health Act

The ‘Sessey’ case showed that where police officers attend a private dwelling to a non-life threatening situation  – or not immediately life-threatening – that they should not use the MCA because no power to remove someone to hospital exists.  The court reminded us that the statutory response to mental ill health on private premises, is for Mental Health Act assessment to occur led by an AMHP.  If the urgency of the assessment means that only one DR can be involved, they can use the emergency admission mechanism under s4 MHA.  The case was unequivocal, that the MCA should not be used to subvert the need for this approach.

(Potentially, officers consider the MCA because of an inability to secure prompt attendance to mental health crisis situations by mental health professionals.  The answer to this, is closer partnership working with crisis teams and agreed support between the agencies and senior officers should ensure that this achieved through robust, reviewed protocols.)

There is more to be read on this within the NPIA Guidelines (para 6.3.1 on p87) and it is also worth reading the Code of Practice to the MCA particularly chapters 2 and 4.