Please, Just Stop!

There is a commonly occurring scenario amongst our 999 colleagues in green and blue where they end up conspiring together to cause a nightmare and it needs to stop before someone is disciplined or worse, hurt.  I wouldn’t BLOG on this unless it had happened a large number of times and I’ll prepare you: I’m unapologetically banging on at length in this one to set it all out again(!) because it really grinds my gears how often I hear of it!  But if you just want to skip to the punchline, there is a Quick Guide on responding to mental health crisis in private premises.

The scenario goes something like this –

Paramedics attend a 999 call reporting a mental health crisis on private premises. When they arrive they discover a non-compliant patient in distress and after talking to them, they form a view the person has potentially serious mental health problems and appears to lack capacity around their immediate decision-making. They are concerned the person would be at risk if they were left at home so paramedics call for police support and when the officers arrive they point out that potentially serious mental health problems, indicate the person needs to go to hospital for urgent assessment and that they have been assessed to lack capacity.  The officers take that at face value, after all, NHS staff typically know more about mental health and appropriate assessment or care than police officers, so they decide to remove the person to hospital, most usually to an Emergency Department. Upon arrival of the patient, who by now may well be in handcuffs or under at least some form of restraint if they continue to object, there is inter-agency confusion and conflict.  What is the legal basis of the person now they’re here; if the person is still non-compliant with what is occurring, whose responsibility is it to stay with the person to prevent them from leaving; can the police handcuff someone if they are relying on the MCA to intervene; … and many more confusions and conflicts besides.

Where a version of this has occured, it will usually have gone awry long before the conflict at ED! From everything I hear in discussion on social media, the MCA is blatantly overused and sometimes abused in many of these circumstances.  And this BLOG is a direct result of a discussion raging right now on a mental health nursing forum on Facebook!

THE MENTAL CAPACITY ACT 2005

Of course, the MCA does offer protection to people who act in accordance with the principles of the Act, where they do the least restrictive thing in someone’s best interests.  But there are real difficulties and extra legal criteria to be satisfied before any of this allows someone to rely on the MCA to restrain someone or deprive them of their liberty.  I’ve written about the MCA elsewhere in terms of the principles and the assessment of capacity, so refresh your memory about all that if you need to.  For here, I need only say that if you’re going to restrain someone, that must be a proportionate intervention, relative to the likelihood and seriousness of harm the person would otherwise face (section 6 MCA). If restraint occurs in such a way as to deprive the person of their liberty, then it can only occur in order to provide a life-sustaining intervention or to undertake vital act to prevent a serious deterioration in their condition (section 4B MCA).  I usually explain that this means someone’s condition, without urgent removal to hospital, must already be more or less life-altering or life-threatening.

The so-called ‘acid test‘ as to whether you have deprived someone of their liberty is to ask yourself whether the person under “constant supervision, control and unable to leave”. In the incident which is often referred to as the ‘Acton Swimming Pool‘ case, the judge ruled that a detention in handcuffs amounted to a deprivation of liberty in around 10 minutes. So removing someone, by force, to hospital in a journey that takes longer than that and with the intention of holding them in ED until further assessment is undertaken, will almost certainly amount to it. Accordingly, don’t forget to read the first sentence of section 4B –

“If 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 …”

This means the Court of Protection, which can be accessed 24hrs a day for urgent issues, but it’s never going to be the police’s job in a medical emergency to start doing this – just remember to outline the fact of removal under the MCA to the paramedics / triage nurse at ED and tell them to get advice on their responsibilities if they wish the police to remain there, ensuring any ongoing deprivation of liberty. 

SO WHAT WENT WRONG?

Do you remember the Sessay case, from 2011? If not, re-read the first paragraph of this BLOG and imagine a scenario similar to that one but where paramedics were not involved at all and where the police officers took the patient to a health-based Place of Safety rather than an Emergency Department – then you’ll have the gist of it.  Ms Sessay was held in that PoS for several hours and then sectioned under the MHA having been removed from her own home ‘under the MCA’ when it was neither immediately life-altering or life-threatening. She successfully sued the police and the mental health trust for removing her from her premises whilst purporting to rely on the as the legal basis for intervening. Her situation was difficult and she was clearly a vulnerable adult, but it wasn’t – there and then – any kind of life-altering or life-threatening incident. In the ruling on that case the judge made it clear that he saw “no lacuna in the law” … in other words, the statutory framework for intervening in private premises to assess in their own home or to or remove them for assessment, is the Mental Health Act 1983 – where the person is thought to be suffering a mental disorder.

The reason things tends to go wrong, in my own view, is that paramedics and police officers misunderstand the relevance of the Mental Capacity Act and massive overstate its utility. For all the examples of this kind of thing, I’m not aware of many of them being fully challenged, either by the patient in a complaint or civil claim, OR by supervisors in the services (who will have had similar training to the frontline staff, in all fairness to them.) The Sessay case is the exception. 

And for the police officers reading this, one particular thing that goes awry is that you believe you are obligated because paramedics had declared the person to lack capacity. I’ve been there – in all fairness the person may lack capacity, but here are two crucial questions you need to ask the paramedic who claims this to ensure you’re acting lawfully –

  • What does the person lack capacity for, precisely? – people don’t just have capacity or lack it; there has to be a decision somewhere in the incident in respect of which they lack capacity.
  • What are the medical risks if we do not remove them to hospital? – this is where an assessment of whether someone right here and right now, is likely to suffer a life-altering or life-threatening consequence because of their condition.

So where our friends in green say, “This man’s taken an overdose of 100 tablets that will probably prove fatal and he lacks the capacity to understand he may die”, then it’s job done – all the MCA boxes are ticked and we can act to safeguard him, including by using a level of restraint proportionate to that risk and take him to an Emergency Department. Where someone has injured themselves and the injuries are superficial cuts which require some cleaning and dressing, it’s much more difficult to justify because no-one is likely to die from that. You may be justified in restraining someone to remove a bladed article from their possession so they cannot injure themselves further, but once that has been done, the restraint should probably end. If you want to reflect on the legal wording of things, look at sections 5 (the general defence to acts done), section 6 (additional criteria for restraint) and then sections 4, 4A and 4B (which all relate to depriving people of their liberty).

SO WHAT’S THE DRILL?!

Upon arrival of emergency services in someone’s home, the first consideration may well be an urgent assessment of whether crews have walked in to a life-altering or life-threatening situation which requires immediate action because someone lacks capacity. If it does, crack on – no problem. Tell the hospital on arrival that you’ve acted under the MCA because of the circumstances, that urgent consideration needs to be given to their treatment and also to any need for the involvement of the Court of Protection.

Most usually, however, the matters will not be so urgently life-threatening as to justify this highly restrictive approach. If we find a person who is believed to be vulnerable because of a mental health problem that requires assessment you have to work out a way of helping the person access a relevant service by taking them to it or by getting the service to the them – and you must proceed on the basis of doing ‘least restrictive thing’. This is a term used in both the Mental Health Act world AND the Mental Capacity Act world and for the benefit of police officers, it’s not entirely dissimilar to the idea of reasonable force. You can only become as restrictive as you absolutely need to be – anything more and the intervention is disproportionate and therefore unlawful.

  • So, would the person agree to attend any kind of walk-in service for those of us with mental health problems? This might include ED who have psychiatric liaison services, but there could be other places like a Sanctuary, or a walk-in service specifically for mental health, like the Birmingham Psychiatric Decisions Unit.
  • If the person is not willing to agree, irrespective of whether they lack capacity, then your standard options remain: contact their out-of-hours GP; if the person is known to MH services, contact the community or crisis team, depending on the time; if you have any kind of street triage service or a mental health nurse based in the police control room, they are an option. You are may have further options locally.
  • And, of course, if officers are thinking, “this is a section 136 type scenario, albeit in a house”, then officers and / or paramedics would be quite entitled to ask the local authority to consider the need for a Mental Health Act assessment, via an AMHP and a DR. Remember this judge’s views in the Sessay case.
  • The route to assessment may vary, the ability of those services to respond in a timely way may vary, and in some areas AMHP services will not accept a referral directly from the ambulance service or the police. That is a policy decision by them, not a legal barrier they must respect. Escalate to your bosses and theirs, make the case and ask for help. It remains for others in all the services I’ve listed above to explain why they did not or couldn’t help.

Please don’t think I’m being naïve in suggesting these options, because I am aware of how likely some of those attempts are to fail – I’ve been that duty inspector countless times! But what I do know, is that where I try, I can stand in a Coroner’s court, should I ever need to do so, and explain to a vulnerable person’s family that I did everything I lawfully could. And if it does fail at the first attempt in respect of a person who lacks capacity but who is not suffering an immediately life-altering or life-threatening condition, then the MCA may allow officers or paramedics to remain on the premises even where there are objections whilst they or their supervisors escalate matters to ensure that less-restrictive outcome.

DEAR COLLEAGUES

Those final points are really important for first-responders in blue or green, however: the fact that you think attempting to do the right thing will be unlikely to succeed is NOT a justification for failing to try. It is also important to know this is far from hypothetical! In my role at the College I have been required to assist forces, the IPCC and Courts in reviewing several of these kinds of incidents, some of which have involved tragically adverse outcomes where vulnerable people have died. I can assure you the focus is always going to be on those officers or 999 crews to ask if they did all they could, irrespective of whether they had any legal powers.

But non-999 colleagues should remember remember this: the law is currently framed in a way that was originally set in the 1950s. I’m sure we can all agree: society, mental health care, practical interpretations of human and legal rights were different. Stated cases show that the days of the police being very casual about those rights are over: police forces have been sued and challenged in a range of ways for a variety improvised solutions to the sorts of scenarios we’re considering here. They lost them all. The law is that police services have no powers whatsoever under the MHA to remove people from their own homes, even where that person IS reasonably considered ‘to be in immediate need of care or control’, as per section 136 of the Act. They can only rely instead upon the MCA where this high-threshold of ‘life-altering’ or life-threatening’ consequences are looming large.

To bring things right back to 2017, our Government and Parliament are now bound in to this arrangement: the UK Government reviewed police powers under the MHA in 2014 and this led, in turn, to the Policing and Crime Bill 2016. During consultation on the Bill there was specific consideration of whether the legal situation in private premises needed altering, either by amending police powers OR, in preference, by ensuring the ability of the police to call upon appropriate professionals from health services to assist. The Bill was introduced in February 2016 and contained no proposed change to the law. Despite the tabling of amendments during the passage of the Bill, Royal Assent was given in January 2017 without those amendments succeeding. So this legal scenario is exactly how we, as a country, have decided we want it to be. We cannot in all conscience then blame 999 services for failing to sort what we decided they can’t.

WORKING TOGETHER

All public services professionals working in emergency mental health care must accept this means that paramedics and police officers must rely and must be able to rely upon some form of support from other agencies when faced with these challenges. Those agencies and professionals must remember, once they’re engaged, they have a duty to ensure the human rights of patients; not only their right to life, but also their right not to have the state over-interfere in their right to a private life. This means, accepting all difficulties about resources and so on, that we must be able to work together, including at short-notice, without any expectation that we leave 999 crews powerless and responsible for things they simply cannot resolve. It is simply not fair to expect them to shoulder responsibilities for something they had no power to fix.

Senior managers need to ensure effective joint protocols around this and finally, the answer to this is not always going to be ‘Street triage’. Mental health nurses, brilliant thought they are, offer no legal powers to these situations and some of the examples of private premises problems also involve nurses being on scene, supporting 999 crews and it making no difference because the nurse agrees a patient needs formal assessment under the Act or removal to a Place of safety – a legal solution is sometimes required.


IMG_0053IMG_0052Winner of the President’s Medal from
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.


The Law of the Land

Did I mention I’d been to France?! … see above! We arrived home late last night and now have a recovery day before the harsh reality of work, first thing in the morning! I had a very interesting experience once I’d arrived at Calais until disembarkment because of a discussion on social media which I found too interesting to ignore and which arose from the lack of beds to allow for an urgent admission to hospital. An AMHP found themselves in an invidious, albeit increasingly common position over the weekend following a Mental Health Act assessment after the police use of section 136. The lead doctor in the assessment was unable to provide a PICU bed to allow the AMHP to complete their legal application to a psychiatric intensive care unit so, after various escalations to NHS managers and no doubt a considerable amount of frustration by all involved, the man was released, his 72hrs assessment period having expired. This happened notwithstanding the AMHP describing the man as a “high risk to others” … and that there were “concerns for safety of the public”.

As if that’s not enough to pique my interest, what really drew my attention, despite my having promised myself I’d spend the journey drinking coffee ahead of my 7th, 8th and 9th hour of driving, was the observation that the “Police can’t do anything, despite concerns”.

Let me cut to the chase – this is nothing whatsoever to do with the police and entirely the wrong problem to highlight. The police had already encountered and safeguarded then man to the extent they are able by law and brought him in to contact with all the correct people: an AMHP and a Doctor. Following assessment by the NHS and local authority they couldn’t arrange any bed placement within 72hrs. It was their decision to release the man when they had a legal duty not to do so. I’m struggling to see that as any kind of policing issue, if I’m honest.

THE LAW OF THE LAND

Where a Mental Health Act assessment has taken place and admission is the indicated outcome, it falls to the lead, s12 doctor in the assessment to ensure a bed is identified to the AMHP for admission to occur as swiftly as required. In practice, the doctor will usually contact the NHS bed manager, often a senior mental health nurse, to identify the appropriate unit. That shouldn’t take more than an hour or two, assuming that the area is working in a way, as per Royal College of Peychiatrists’ advice, that wards are at an average occupancy level of around 85%. This allows slack in the overall system for just these kinds of situations: to ensure this man can be urgently admitted. However, Mental Health Act assessments and compulsory hospital admission are, amongst other things, legal processes and they are governed by more than one kind of law.

Section 13 MHA governs the AMHPs legal duty to make an application under the Act –

s13(1) If a local social services authority have reason to think that an application for admission to hospital or a guardianship application may need to be made in respect of a patient within their area, they shall make arrangements for an approved mental health professional to consider the patient’s case on their behalf.

s13(1A) If that professional is — (a)satisfied that such an application ought to be made in respect of the patient; and (b)of the opinion, having regard to any wishes expressed by relatives of the patient or any other relevant circumstances, that it is necessary or proper for the application to be made by him, s/he shall make the application.

The old Mental Health Act Commission (predecessor organisation to the Care Quality Commission) published guidance on this very point, in their 8th and 9th Biennal Reports on the operation of the Act, around the turn of the century. Old though it is, and abolished though they are(!), it represents the last point of guidance I can see from either MHAC or CQC on how this part of the Act should be applied. If anyone knows of something more recent, please let me know!

  • Para 4.45 of the 08th Biennial Report
  • “The Commission advises the [AMHPs] have a duty to carry out their functions as prescribed in the Act, and that the responsibility for finding a bed is clearly laid on health care providers whose duty it is to admit the patient. If the patient cannot be admitted for want of a bed, the relevant social services authority, health authority and police authority will be liable if one of more of them fail to perform for the patient those functions which the law requires them to discharge.
  • In practice terms, this means that in an emergency the [AMHP] should complete the applications, making it out to a hospital specified by the relevant health authority in the notice required to be given under Section 140 of the Act, and convey the patient to that hospital. The [AMHP] should inform the hospital that he or she will remain with the patient while a bed is organised, but that it is the hospital managers’ responsibility to admit the patient; the patient is per se not fit to be in the community.”
  • Para 2.49 of the 09th Biennial Report
  • “The common problem of [AMHPs] finding no beds available when conveying a patient to a hospital for urgent compulsory admission was raised in our Eighth Biennial report.
  • We advised that the [AMHP] should remain with the patient while a bed is organised, taking the view that, where the hospital has been identified by a Health Authority as a place that will admit patients in emergencies, it is reasonable to expect the hospital to find a bed for the patient, even though Section 140 does not place a legal duty on it to do so.”
  • For clarity – all bold emphasis above is mine, not that of the MHAC.

There are problems with this advice: but there are problems with ignoring it, too. Who is policing compliance with the Mental Health Act itself; who is looking, if anyone’s looking at all, at section 140 MHA? It remains my recent experience that most CCGs and mental health trusts haven’t heard of this provision, never mind have any meaningful policy on how they are interpreting its implications.  (I’ve done dozens and dozens of FOI applications in the last few years, asking different CCGs about this.)

INTERNATIONAL LAW

This situation probably triggers various kinds of human rights considerations, depending on the specific patient and their circumstances at the time. Firstly, failure to admit someone to hospital when they are in dire need of psychiatric care can amount to an Article 3 violation – see the MS v UK case (2012), as an example of that. Other versions of this kind of story see patients held beyond 72hrs and without obvious legal authority and pending the identification of a bed – that would amount to an Article 5 violation of the ECHR. Finally, imagine that a patient who was released from detention in these circumstances killed themselves or seriously hurt someone else – you can imagine a view being taken that Article 2 considerations may apply to any patient suicide.

But in a very real sense, they do – s13 imposes a legal duty to make the application when certain grounds are met and none of those involve beds and / or willingness on the part of the NHS. By not making the application when the act says that you “shall” make it, the AMHP is brought in to question. The old Mental Health Act Commission (predecessor of the CQC) even went so far as to issue guidance on this particular point, reminding everyone that they have a duty to comply with the Act and this advice was obviously subject to legal advice before being put out there. It advised that the AMHP should go to the s140 list and make their application to the relevant hospital. They should then detain / convey the person to that place and resolve the issues at the hospital with hospital managers. I’m aware Professor Jones argues in his books that this approach is ‘of doubtful legality’, but then so is not doing this in the circumstances you’ve described.

The United Kingdom is a signatory nation to the United Nations Convention on the Rights of Persons with Disabilities. Given other points I’d prefer to make, I’ll just leave that comment there, because we can imagine what that might say about all this.

PRESSURE ON AMHPS

This kind of situation is just one of the many I referred to in a recent post on AMHPs as to why I wouldn’t do their job for all the money in the world – but I worry about them in this particular situation. Having delivered CPD to AMHPs on a large number of occasions, I tend to find it almost always the case that AMHPs believe that they CANNOT make a legal application to a hospital unless it has been identified in advance as willing and able to receive the patient. And yet I’ve also met AMHPs who have done so, in extremis, in order to bring pressure to bear on a system that was asking them to absorb intolerable professional responsibility for risk management, way beyond their ability. I’ve also met solicitors and barristers who have given a different to that expressed in Professor Jones’s Mental Health Act manual that the MHAC advice (above) is ‘of doubtful legality’; or at least have gone further to recognise that acting against the advice is similarly precarious.

Firstly, the MHAC advice was issued after taking legal advice – so already, we have a difference of opinion between lawyers which shouldn’t shock many of us.  Secondly, not complying with this advice is also of doubtful legality! You either end up with unlawfully detained patients because professionals are too frightened to release someone, knowing the obvious risks involved; OR you end up with a person being released when they should have remained detained and all the obvious legal issues that can or do flow from that.

Secondly, why should the AMHP be the person who has to take responsibility for not complying with their legal duty (s13) when the situation is not of their making?! I just don’t see that as fair. If I attend a 999 emergency as a police officer and find a man has killed his friend or partner, he’s getting arrested for murder, whether or not the custody sergeant has a cell!! The problems that flow from my decision are simply not for me to absorb – it’s for the sergeant, duty inspector and chief constable to sort out! If need be, police officers can sit with him in the holding area of a cell block for as many hours as it takes whilst they get it sorted. Not arresting him is NOT an option – and nor would that be expected of me, which is perhaps the most important point. I’m not expected to duck my legal responsibilities because of any problems in the system. In reality, were this ever to happen, we’d find the nearest non-violent, non-vulnerable prisoner and kick him out – we can sort out the shoplifting case later. I cannot even begin to imagine any officer of any rank criticising my decision – they’d just be working flat out to support it, by creating the capacity and resilience required by doing something.

HOSPITAL ADMISSION

Of course, it’s always pointed out that hospitals aren’t legally obliged to accept a patient, even where an AMHP has made an application. Fair enough – imagine for a moment it was done, the police and AMHP turn up at an acute admissions unit which also has a PICU unit and the AMHP explains the situation to the ward manager, asking them to escalate to the on-call manager. I wonder how prepared they would all be, when they see a human being in distress, flanked no doubt by the police, and an AMHP pointing out why they felt they had no other choice but to do what they’ve done to somewhat force the issue and remain lawful. Imagine the AMHP and police saying they’d remain at the hospital to help with whatever transitional arrangements were attempted until a solution could be found. Would that manager delude themselves in to thinking that any decision they took not admit the person or in some way make arrangements is entirely neutral for them in terms of any liability for anything that may follow, knowing full well that the AMHP and police will document that person’s name for the benefit of any Coroner or criminal inquiry if the person is not admitted? … or will they start improvising alternatives and perhaps escalating it to their Chief Executive and / or the CCG on-call director?!

This is more than hypoethical: it’s not hard to provide evidence of suicide following non-admission; it’s also possible t show evidence of serious offences being committed by acutely unwell patients whose MHA assessment or admission was delayed when powers under s135(1) were available to AMHPs with warrants. And as other AMHPs were themselves pointing out, there are some temporary solutions which could be considered –

  1. Call in additional staff and admit the patient to the PICU anyway but with 3:1 nursing support.
  2. Also consider the most well patient on the PICU and transfer them to an acute ward with additional support, whilst considering whether someone in the acute ward could be safely granted leave. Again, we know this happens on occasion.
  3. ‘Admit’ the person to the Place of Safety and secure extra staffing or even, some police support, to keeping the situation safe until a bed is found. Before anyone thinks of reasons why this can’t happen, it’s happening 2/3 times a month in just one MH trust I know of – it’s a regular tactic to manage demand, alas.

There will be others …

So we all need to be aware: we have reached a point where perceptions amongst some professionals are that things have become so very difficult we just release people who everyone agrees need detention on public safety grounds and we do this notwithstanding the obvious legal issues, arising. To make things worse, the AMHP made it clear that a second patient in police custody also required a PICU and that bed search wasn’t going well either. My final point is this: don’t fall in to the trap of thinking this is austerity politics (small or big P, as you prefer) or any kind of recent development: these kinds of difficulty in admitting patients promptly have been going on for years and years and years but the pressure is all too often absorbed by AMHPs and the police. I submit we should operate professionally within the law in such a way as to ensure the pressure is on the professionals in commissioning and management to resolve the invidious positions that frontline staff didn’t create. I feel entitled to say that because if one more senior psychiatrist or CCG commissioning manager asks me, “Sorry, what’s s140 MHA – I’ve never even heard of that!” … I may just have to do a small scream.

Perhaps it’s with me being a policeman that I tend to take that question very badly – because, whether it was part of your professional training or not, the public have an inviolable right to expect that public organisations will comply with the legal duties and wider legal frameworks that govern them because it’s the law of the land and as we all know: ignorance is no excuse.


IMG_0053IMG_0052Winner of the President’s Medal from
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.


The MHA Changes

I’m being absolutely inundated at the moment, via email, phone and social media, with questions about when those changes to the Mental Health Act 1983, contained within the Policing and Crime Act 2017, will be brought in to effect. The amendments will alter quite considerably the 1983 powers relating to the police and to the operation of Places of Safety.

Such is the relentless volume of enquiry, I decided to text the Home Office from holiday(!) and want to share an update with their permission: I begged them to do this to help spare me the pain of relentless enquiry and so that I may focus my efforts on fromage français et vin blanc, etcetera! –

 

“We can clarify that the changes to s135/136 Mental Health Act 1983 (ss 80-83 of the Policing and Crime Act 2017 and related reulgaitons) will come into force no sooner than September 2017.  When the exact commencement date is known (ie, at least three weeks in advance, when those regulations are laid in parliament) this will be communicated to national partners for dissemination to local agencies.  In the meantime, local health, policing and social care and other agencies can continue to necessary implementation planning.”

So, it will happen no sooner than September 2017 and therefore, it may be later than that for all anyone currently knows.  Whilst I’m keen to keep you all updated! … I now suggest we all get on with enjoying the summer and I shall be starting this by continuing my holiday in the painfully beautiful Loire valley, in central France. Today, I enjoyed cycling around the place and endured un grande eclair café, bière 1664, cidre et fromage aux Château de Chambord (above).

If you will insist on these updates whilst I’m on holiday, you will see very short blogs that also boast of time off – it’s only fair!

I hope this helps … au revoir! 

.

Michael./


IMG_0053IMG_0052Winner of the President’s Medal from
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.