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Political Developments

Theresa MAY will address the Police Federation Conference later this morning in her first speech since being re-appointed Home Secretary after the 2015 General Election.  In the pre-speech media coverage, it is anticipated that mental health issues will feature as headlines in her address:  principally £15m for further investment in health-based Places of Safety and new legislation to improve the experience of those who are detained by the police under the Mental Health Act.  I’ll let you decide whether to read Guardian or Telegraph coverage of this, to suit your taste / politics!  Taking the media coverage at face value and whilst anticipating the speech, a few thoughts occur to me —

  • £15m for new PoS facilities – you may remember that a previous Government gave money for PoS facilities in every area.  This was back in 2005/6 and it took until 2014 before every city and county had coverage.  It was in the same year that the CQC report A Safe Place to Be highlighted that the provision was inadequate to ensure police cells could be almost eliminated.  And now there is even more money to do what previous money failed to ensure – having seen the work that was necessary to commission NHS based Places of Safety, I’m not convinced it takes much money, but it does take will and knowledge.  That’s what I’ve always thought was lacking.
  • Exceptional circumstances – the Government Review of the operation of s135/6 which was published in December 2014 suggested that the ‘exceptional circumstances’ in which police cells could be used should be clarified and it proposed legislating to rule out the use of custody for children (under 18s) and that adults could only be held if “the person’s behaviour is so extreme they cannot otherwise be safely managed”.
  • What does this mean?!  – it is absolutely crucial … and I don’t often use colour in the blog to emphasise particular words!  It could have been said of Sean RIGG, Michael POWELL and many, many others and it was the decision to use custody in the first place, potentially in disregard of the fact that acutely disturbed behaviour can be symptomatic of underlying conditions and in itself be a medical emergency.  We need to be very, Very, VERY careful that we don’t encourage the kinds of response by police officers that have massively criticised, including in the courts, after previous untoward events.
  • Reducing the detention timescales – it has been suggested that the 72hr timescale for detention under ss135/6 be reduced, probably to 24hrs.  It’s intuitively attractive, isn’t it? … we can’t detain a criminal beyond 24hrs beyond some exceptional circumstances that have very intrusive safeguards and yet we could detain an unwell person for three days, potentially in a cell block as occured in MS v UK [2012].
  • Children – it’s amazing that in 2015 you are more likely to be held in custody if you are a child than if you are an adult because some NHS have PoS provision but exclude from it those who are under 18yrs of age.  I know that work is already ongoing to prepare the NHS for a world in which the law prevents the use of cells as a PoS.  But let’s not get too carried away that it means children will never end up in custody.  The example from November 2014 in Devon is often used as the outrageous example in this area, but we seem to have forgotten that the young woman concerned was not detained under s136 MHA, Devon and Cornwall Police said in their press release that she had been arrested to prevent a breach of the peace – and such detainees normally go to custody!  The new Code of Practice MHA now makes it clear to nursing and medical staff that if such an event happened today, they would be expected to use s5 MHA and arrange an MHA assessment and / or hospital transfer, as appropriate.

The difficulty with reducing this timescale is the small matter of bed access.  I don’t doubt that most areas could ensure an AMHP-led assessment involving a s12 DR within a day – whether they could also identify a bed which patients requiring admission can access is quite another matter and many AMHPs have already commented this could be unworkable unless attention is given to bed provision.  I merely remind everyone that they should be reading and giving effect to the implications of s140 MHA – my favourite piece of ignored legislation.

Finally, I wouldn’t be doing what I normally do, if I didn’t point out that these announcements – whilst welcome with the caveats mentioned – are addressing some of the obvious difficulties we face.  I haven’t seen any media coverage about the less obvious, ongoing difficulties, which are also faced by street triage teams, of ensuring consistent and appropriate responses to mental health crisis incidents in private premises, depending as they currently do on the ability to summon AMHPs, s12 Doctors and warrants, on occasion.

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The Mental Health Cop blog

Badgewon the ConnectedCOPS ‘Top Cop’ Award for leveraging social media in policing.
won the Digital Media Award from the UK’s leading mental health charity, Mind
– won a World of Mentalists #TWIMAward for the best in mental health blogs

ccawards2013 was highlighted by the Independent Commission on Policing & Mental Health
– was referenced in the UK Parliamentary debate on Policing & Mental Health
was commended by the Home Affairs Select Committee of the UK Parliament.

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Sections 4A and 4B – Mental Capacity Act

These are the Mental Capacity Act (MCA) sections that everyone forgets to talk about – so I want to make sure I play my part in ramming them home! Several things cause this BLOG to be necessary in helping paramedics and police officers understand their application of the MCA and its potential to assist in ensuring the safety and wellbeing of people who lack capacity to take their own decisions. It concerns the circumstances in which an ‘urgent deprivation of liberty’ may be undertaken in someone’s best interests, where they lack capacity to take a decision for themselves.

If you’re not familiar with the Mental Capacity Act 2005 and its application by emergency services like paramedics or police officers, then a previous post will explain the overall outline. This post is only focussed on the need to raise the profile of these particular sections and their importance.

There are several motivators for this post –

  1. A paramedic seeking advice about an acute mental health crisis – this followed advice from a GP that they could rely, with police support, on the MCA to coerce someone to hospital during an acute mental health episode without additional medical concerns that made the situation life-threatening.
  2. Training I witnessed for frontline police officers – where no mention was made of this section in understanding the circumstances in which someone may be coerced to hospital and deprived of their liberty for many hours.
  3. Over a dozen occasions since moving to the College of Policing – where I keep having to say, “What about ss4A and 4B?!” only to see that the person explaining the relevance of the Act, hadn’t read it, hadn’t considered it or on many occasions, heard of it.

THE MENTAL CAPACITY ACT

The general idea of the MCA is the where someone has any impairment or disturbance of the mind or brain and is unable to communicate, understand, retain or evaluate information relevant to that decision, they can be said to lack capacity in relation to it. Therefore, someone may do the least restrictive thing in that person’s best interests with regard to that decision. If you’d like more detail about all of that, then above post expands on these principles and concepts. Here, I just want to focus on what that means where restraint is being contemplated and how that can in some circumstances become a ‘deprivation of liberty’ under the Act.

Restraint is the threat or use of force that restricts somebody’s freedom of movement.  Section 6 of the Act makes it clear that restraint may only be undertaken if it is necessary to stop the person suffering harm and that it is proportionate both to the likelihood of harm and to the seriousness of that harm. So for example, if officers or paramedics attended a home address where someone was threatening or about to take a very damaging overdose they would be permitted to restrain the person sufficiently to take those substances from them, assuming the other general MCA conditions were satisfied. The difficulty is about when restraint needs to become that deprivation of liberty.

Deprivation of liberty is not precisely defined in the Act itself: this is one of the reasons why several legal challenges resulted in a Supreme Court ruling in 2014 that had to rule on what a deprivation of liberty was. Lady Justice HALE, Deputy President of the Supreme Court, lead the judgement and ruled that someone was deprived of their liberty if they were “under constant supervision and control and unable to leave.” Commenting on a case in which the particular individuals were deprived in excellent conditions of care, she remark very memorably that “a gilded cage is still a cage”.

  • Section 4A states – This Act does not authorise any person (“D”) to deprive any other person (“P”) of his liberty.  But that is subject to the following provisions of this section, and section 4B.  D may deprive P of his liberty if, by doing so, D is giving effect to a relevant decision of the court [or Protection] … D may deprive P of his liberty if the deprivation is authorised by Schedule A1 (hospital and care home residents: deprivation of liberty)
  • Section 4B statesIf the following conditions are met, D is authorised to deprive P of his liberty while a decision as respects any relevant issue is sought from the court. The first condition is that there is a question about whether D is authorised to deprive P of his liberty under section 4A. The second condition is that the deprivation of liberty is wholly or partly for the purpose of giving P life-sustaining treatment, doing any vital act, or consists wholly or partly of giving P life-sustaining treatment, or doing any vital act. The third condition is that the deprivation of liberty is necessary in order to give the life-sustaining treatment, or do the vital act. A vital act is any act which the person doing it reasonably believes to be necessary to prevent a serious deterioration in P’s condition.
  • Summary of it all – “Nothing in the MCA allows you to deprive a person of their liberty even where they lack capacity unless it is necessary to provide life-sustaining treatment or to prevent a serious deterioration in their condition and this is the only practical way in the circumstances.”

And this is key – action taken where someone is urgently deprived of their liberty may only be entered into with a view to taking the matter before the Court of Protection.  Accepting that life-sustaining intervention will be the immediate priority in terms of stuff to do in that situation, it is incumbent upon everyone subsequently connected to that person’s care to bear in mind that s4B being lawful hangs upon efforts made to involve the Court of Protection in determining the relevant issue in the case.

CROSSING THE LINE

Imagine our potential overdose patient had, in fact, already consumed many tablets before you arrived and although you have taken possession of what remains you still have the dilemma of what to do. Clearly if paramedics were right there with the police indicating life was at risk and officers were satisfied that the general conditions were met, they would be able to take action by removing that person to A&E  for life-sustaining treatment. Of course, Doctors at hospital will then reconsider the whole case afresh and with their greater knowledge and skill-base decide whether or not to treat the person against their will and in some rare circumstances whether they need to go the Court of Protection in order to secure authority to do so.

A paramedic lead on the MCA and safeguarding once outlined a situation to me in which paramedics were called by a son who suspected that his father had taken an overdose. When paramedics arrived, the man relayed that he had taken various tablets the previous evening and gone to sleep expecting to die. Some 10hrs later it hadn’t worked and he was refusing to travel to hospital for medical checks, potentially because of his background of mental ill-health. Paramedics made enquiries with their control room and a health database called ‘Toxbase’ – this contains various bits of information about drugs of many kinds and they were able to deduce that the half-life of the drugs had passed. This is the period of time after which the potentially serious effects of taking the drugs has passed. Although they were convinced that he had ingested potentially fatal quantity of drugs and that he lacked capacity to take decisions around his own care becuase of his mental illness, they were no longer concerned that his life was immediately at risk so reliance upon the MCA to coerce him to hospital was ruled out. They contacted mental health services to conduct an urgent assessment with a view to Mental Health Act procedures for his acute mental illness.

So there are three points I am trying to counter here –

  1. That a paramedic or GP declaring that a patient lacks capacity to decline medical treatment is sufficient to allow the paramedics or police officers to coerce that person from a location to an A&E department. It isn’t enough – you need to satisfy those additional criteria in section 4B after remembering from s4A that “nothing in this Act authorises a person to deprive another person of his liberty.”
  2. That there needs to be an understanding – on the balance of probabilities – about the kind of harm that would result from inaction. Urgent deprivation of liberty is for situations where there is, or where there soon will be, a life-threatening risk – accepting that someone’s medical condition will not always be precisely understood in an emergency. That someone may suffer a lesser medical detriment is insufficient.
  3. You cannot just rely upon the MCA because someone else tells you that you should – it may well be that a paramedic has declared a lack of capacity for someone’s decision to receive medical care, but it remains appropriate for a police officer to ask for confirmation that the intervention is perceived to be a life-sustaining intervention, etc.. It would be right to ask further questions if this was not being confirmed.

SUMMARY

The unanswered question appears to be, after how long or when does restraint become a deprivation of liberty? We can imagine brief restraint or containment in someone’s private premises pending the arrival of paramedics to make a medical assessment of someone’s condition and those few minutes amounting to restraint. However, if that patient is then removed to A&E and held there by the police or security for several hours whilst Doctors undertake various medical and legal procedures, are they not then deprived of liberty? … forced to a location they did not and could not consent to be at, are they not there “under constant supervision, control and unable to leave”? It seems highly likely that they are and I’ve informally heard specialists’ opinion on this that they would be.

Please stick the considerations of section 4A and 4B in your legal armoury if you are a police officer or paramedic. Whilst I’m not a lawyer, everything written here has been legally checked more than once and subject to other scrutiny from people I know who have to apply and train the MCA so if you disagree with anything I’ve written in this post, please leave a comment below or email me via the contact sheet on the front page of my BLOG so I can continue the discussion with those whose advice has shaped my understanding.

If you want more detail and authority on this or doubt what I’m saying here, then I recommend Matt GRAHAM and Jakki COWLEY’s book (see below).  You may notice that pp165 and 166 bear some resemblance to this post and as the book is endorsed in its foreword by Alex RUCK KEENE who is a leading barrister on mental capacity law, it should be more than good enough for you and me!

FURTHER READING  —

  • A Practical Guide to the Mental Capacity Act 2005 – by Matt GRAHAM and Jakki COWLEY (2015).
  • Mental Capacity Act Manual – 6th Edition by Richard JONES (2014).

_______________________________________________________________________
The Mental Health Cop blog

Badgewon the ConnectedCOPS ‘Top Cop’ Award for leveraging social media in policing.
won the Digital Media Award from the UK’s leading mental health charity, Mind
– won a World of Mentalists #TWIMAward for the best in mental health blogs

ccawards2013 was highlighted by the Independent Commission on Policing & Mental Health
– was referenced in the UK Parliamentary debate on Policing & Mental Health
was commended by the Home Affairs Select Committee of the UK Parliament.

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The Mental Health Taskforce

Right, NHS England have set up a taskforce on mental health – chaired by Paul FARMER, the Chief Executive of Mind and vice-chaired by Jacqui DYER who is an expert in mental health by experience, it seeks to set out a five-year forward-looking strategy on mental health.  There was a press release to accompany the announcement of this work and you can read more about it on the NHS England website, including its terms of reference.

Most importantly, we can all contribute to its work with our ideas, our concerns and our views by emailing them at –

england.mhtaskforce@nhs.net

I know that I intend to ensure they are aware of my view that you cannot understand our mental health system without understanding how it causes people in distress into excessive contact with the criminal justice system and how it isn’t sufficiently ‘rights’ based. I’m well aware that when commissions and taskforces are set-up, they don’t always include every organisation that you would think are obvious to its work but they do ensure such organisations become involved in contributing a view.  So I note that no criminal justice agency or policing organisation like the National Police Chiefs Council or the College of Policing are a formal part of this work but I do intend to ensure that a policing voice is heard loud and clear by members of the taskforce and I look forward to reading the strategy when it’s published in due course.

A final point, this work has obvious overlaps to the Royal College of Psychiatrists Commission on Acute Adult Psychiatric Care, on which I am a commissioner.  The overlaps are more than subject matter, but Paul FARMER and Jacqui DYER are commissioners for CAAPC in addition to charing and vice-chairing this NHS England work.  I’m still trying to deconstruct those overlaps and duplications in my head, but I’m sure it will become clear!

Make your voice heard!