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Mental Health Act Admission

This short post covers the main admission frameworks of the Mental Health Act 1983, in limited detail for the benefit of police officers and the public. Advance notice is hereby given(!) that AMHPs or psychiatrists will find this superficial.  The purpose here is to make two wider points for police officers, after briefly reminding or explaining what these principal provisions actually mean.

VOLUNTARY ADMISSION

As with any other aspect of healthcare, any person can go in to hospital if it is suggested to be necessary and if they wish to do so. You can decline that offer if you have the capacity to do so.  Although it may appear unnecessary to have a legal provision for admission that does not require compulsion or restriction of liberty, section 131 of the Mental Health Act covers this point and makes it explicit.

When I first joined the police, mental health services used to distinguish between ‘voluntary admission’ and ‘informal admission’ and to make a distinction between patients with the capacity to do so consenting to their own admission and those without that capacity who were merely not objecting. This distinction has ceased to have relevance since the Mental Capacity Act 2005. The new Code of Practice (2015) highlights that where patient under assessment lacks capacity to make decisions, or where their capacity is fluctuating, they should be detained under the Mental Health Act 1983 if they are to be admitted to hospital.

I’m going to make a point at the end of this post, about how this kind of principle should be considered by police officers when considering the application of s136 MHA.

DETAINED PATIENTS

There are three main provisions that lead to people being detained against their will under the Act.  I can think of various situations where officers may benefit from knowing the difference, so as to understand how their own decisions may fit in to these frameworks, especially those where allegations of crime have been made –

  • Section 2 – detention in hospital under this section must be authorised by an AMHP and two Doctors, one of which must be ‘section 12’ approved. Detention allows for assessment of mental disorder, lasts for up to 28 days and cannot be extended. Patients detained under this provision have a right to appeal to a mental health tribunal, which is a part of HM Courts’ Service.
  • Section 3 – detention in hospital must also be approved by an AMHP and two Doctors, one of them being ‘section 12’ approved. This type of detention allows for treatment of mental disorder, can last for up to six months and can be extended. The first extention lasts six months; subsequent extensions last for twelve months and there is no overall maximum period.Patients detained under this provision have a right to appeal to a mental health tribunal, which is a part of HM Courts’ Service.
  • Section 4 – this is an emergency admission provision, requiring just one Doctor to support the AMHPs application. It can only be used where it is not practicable to wait for a second Doctor, lasts only for 72hrs and the patient has no right to appeal to a tribunal. Within the 72hrs, a decision must be made about a second medical recommendation for any further detention.

For those who are interested in the detail of this stuff, there seems to be an almost constant debate amongst AMHPs about whether it is ever right to use section 3 to admit a patient to hospital from the community. Where a patient is known to services and their diagnosis is clear from previous contacts, some argue there is no obvious reasons why a section 3 application can’t be made, for example, after a MHA assessment in somone’s own home. However, I had a really difficult experience as a custody sergeant that shows why attempting section 3 admission can prove problematic. It is at least partly for reasons such as these, other AMHPs argue initial admission to hospital, even for patients who are known, should be via section 2 of the Act.

NEAREST RELATIVE

A particular feature of section 3 MHA, is that a patient’s Nearest Relative (NR) can legally object to admission. Unless the AMHP displaces the NR after a successful application in the county court, the NR’s objection stands – and this displacement under section 25 MHA can only occur if the AMHP can show that an NR is acting unreasonably. In my case, a man had been arrested for an alleged robbery and he was very obviously unwell. The MHA assessment in custody led to a decision to admit him under s3 MHA and his NR objected – and that was the end of that! … I was stood there asking, “What do you mean ‘we’ll leave it with you, Sarge!’ … he objects and that’s that?!”

And it turns out it was – unless the NR is being unreasonable and in this case, the AMHP wasn’t prepared to argue that he was, no MHA application can be made and the AMHP cannot then start arguing for a section 2 application. So we prosecuted him for robbery and he was remanded to prison by the courts, because that suddenly became the only legal way by which to prevent harm to him or to others. We unnecessarily criminalised him – which happens more than it should, for various reasons, including this one.

I have only one other example of NR objection in my eighteen years of policing: it interesting for different reasons and it occured when I was a duty inspector. I started duty at 10pm to find a women in custody under s136 MHA who had been detained that afternoon but spent a few hours in A&E having various physical healthcare problems attended to. No AMHP seen her in A&E, in fact there was no evidence of an AMHP having been contacted at all, so when I started duty I rang the night duty AMHP and was told, that an earlier AMHP had been aware of her detention and he said, “The NR objects so the AMHP is going to court tomorrow to displace them and you have to hold her until then.”

I was intrigued to know why an as-yet un-named AMHP had decided to attempt to legally displace a Nearest Relative who could have yet objected to admission because the s136 assessment had not yet occured, never mind a full MHA assessment. (For those who don’t know the difference, assessment under s136 requires just one doctor in addition to the AMHP; full MHA assessment requires two.) I wondered whether the answer of the court would not just be, “Come back when you have an assessment conclusion and an objection to that assessment conclusion – you’re presuming and guessing, at this stage.” So I rang the duty AMHP to query this and was told they weren’t coming out and that I obviously didn’t understand the process.

Can you guess what happened at court?! … I guess you can’t qualify in common sense.

RELEVANCE

So there are three basic methods by which, under civil law and without the involvement of the criminal courts, you can find yourself detained in hospital against your will. That is unless you have the capacity to make your own decisions and take up a voluntary admission, were it to be offered to you. But why am I arguing that officers might need to know these three things, bearing in mind you will find section 4 MHA used very rarely indeed – so it’s mainly down to the two normal provisions of section 2 and section 3.

Remember what they actually mean, in law –

  • Section 2 – means detained for assessment of a mental disorder.
  • Section 3 – means detained for treatment of that condition.

Imagine a scenario with two alternative endings –

A young person is reported to be on the adverse side of a motorway bridge and appears to be about to jump. Motorway police officers make towards, their control room starts affecting traffic signs to get traffic to slow down and eventually, the motorway is closed in both directions.  Meanwhile, local officers have made towards, the duty sergeant is on the bridge with an officer and they are talking to the person, the duty inspector is overseeing and gets a negotiator on standby to turn-out. They can’t find out the person’s name, form the view the person has been drinking and may have mental health issues because of the language they are using about hurting themselves and instructions they claim to be acting on.

It takes over two hours and the turnout of a negotiator to talk the person down and they are detained under s136 MHA. Calls to the police during the road closure make it obvious that there was at least some public frustration at the degree of inconvenience caused, one man claiming to have missed a job interview and another upset that his visit to a very ill close relative in hospital is delayed. The man was under the influence of alcohol, but because of concerns of his mental health, he is detained section 136 MHA.  He is taken to police custody because nowhere else was available and when searched he is in possession of a something illegal – you can make your hypothetical incident involve drugs or weapons, as your prefer. He sobers up overnight and is seen by an AMHP and DR the next morning and they subsequently arrange for him to be ‘sectioned’ under the MHA.

ALTERNATIVE ENDINGS

Now, bearing in mind that bringing a motorway to such a halt is a criminal offence if you put yourself on or over a road (s22A Road Traffic Act 1988), that it’s probably cost the UK economy about two million pounds whilst the closure was in place and that some members of the public have been put out and distressed by the actions, do the following two outcomes change how we see the incident?

  • What if he was sectioned under s3 MHA because of a long-standing history of schizophrenia and previous inpatient admissions to hospital – upon examining his background, he has never done something like this before, has no history of using drugs or weapons for violence: it’s thought he is extremely unwell after the recent and sudden death of his only surviving parent.
  • What if he was sectioned under s2 MHA and it transpired three days later that he had no mental health issues whatsoever and had become somewhat disturbed in his cognitive functioning because he had consumed lawfully obtainable drugs as well as street drugs and then alcohol, creating a chemical cocktail that induced a temporary mental-illness like state than even convinced psychiatrist then next day?

Bearing in mind the original incident: do these outcomes make us reflect differently on the original incident and what the police should do? I would hope so! – there is no reason whatsoever why our second individual shouldn’t be considered for prosecution, bearing in mind the various offences involved in that incident. But would any of us argue for that outcome in the first case?

So someone being ‘sectioned’ in police custody doesn’t actually tell us very much, does it?! … and most people ‘sectioned’ from the police station are detained under section 2 of the Act. How often do we bail anyone if they were originally arrested for an offence in order to follow them up in case they were like our second case, above?

SECTION 136 AFTER-THOUGHT

And you’ll remember I said these considerations around capacity could also be relevant to effective and correct use of section 136 MHA?

Officers are being encouraged at the moment to consider various actions which have the overall intention of reducing the use of this power to detain someone. It is probably wise to consider the question of capacity wherever thought is being given to offering a ‘voluntary’ alternative.  Most of us will have experience of encountering a person, either in public or in private, and finding that when officers offer either a referral via Accident & Emergency or more recently, via street triage schemes, that the person agrees.

Do they have the capacity to do so? – did we event explain the information relevant to that decision?! Offering A&E is one thing – what about A&E, knowing that the average turn around time may be 4hrs; or 8hrs?! What about explaining the civil liberties things – like whether officers will be remaining there with them, to ensure they don’t leave? If you are planning to go to A&E on a ‘voluntary’ basis and to remain there with the person to ensure they don’t leave; haven’t you effectively employed s136, especially if it relates to a person who very obviously lacks capacity around their decision-making? … all just food for thought.


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

Winner of the Mind Digital Media Award


DarkAlley

No Legal Duty

You may remember at the end of last year there was an inquest in York into the death in a police station of Toni SPECK whilst detained under section 136 of the Mental Health Act? … the jury decided, on the balance of probabilities, that she died from serotonin syndrome whilst detained by North Yorkshire Police. This was one of two explanations given by the pathologists involved in the investigation, the other arguing that she died from excited delirium – the condition that many doctors argue does not exist. Coroner’s have a right to consider any issues that they reasonably believe are relevant to the circumstances of someone’s death and because Toni SPECK died in police custody, the inquest was what is known as a ‘Middleton inquest’ or an ‘article 2 inquest’. Counsel for Ms SPECK’s family argued that the Coroner should consider as directly relevant the issue of NHS services in York deciding or omitting to ensure that there was a health-based Place of Safety available for those who were detained by the police under the provisions of the Act. The Coroner declined to consider this as relevant and prevented evidence being heard about it in connection with Ms SPECK’s death.

JUDICIAL REVIEW

We have recently seen the publication of a ruling where Ms SPECK’s family sought to judicially review that particular decision. Continuing to argue that the Coroner should have considered health-based Place of Safety arguments, they asked for permission to bring a judicial review in the High Court, to overturn the omission of this consideration. I read this with interest, not least because I’ve spent a large part of my life arguing about the need for health-based Place of Safety provision in all areas and because I’m pretty sure I will look back on my work at the end of my career and think that the introduction of such a service in Birmingham was about as good as it got.

Having been the custody sergeant who had to detain people in police cells because there was, quite bluntly, no other option at all; I have often thought it may well have been nothing more than luck that meant I haven’t been one of the officers who did exactly what local health arrangements wanted me to do, only to find myself suspended and investigated for homicide and misconduct offences arising from obliging. their preference. I now know that there are few situations in which I would ever authorise detention in police custody of anyone detained under the MHA who had not been clinically examined by a member of the NHS – if the arrangements in an area failed to offer up a member of the NHS that was accessible at the point of arrest or at a health-based Place of Safety, I’d remove that person to A&E. This is my own, strictly personal view.

  • How do I know someone I’ve detained isn’t suffering from serotonin syndrome? – I don’t … and I can’t.
  • How do I know someone I’ve detained isn’t suffering from a urinary tract infection that has altered their cognitive functioning? – I don’t … and I can’t.
  • How do I know someone doesn’t have a brain tumour? – I don’t … and I can’t.
  • How do I know someone isn’t experiencing one of over 40 kinds of epileptic seizure? – I don’t … and I can’t.
  • How do I know someone isn’t diabetic – I don’t …and I can’t.
  • These are all real examples, by the way! – some of them potentially fatal, if unchecked.

So the provision of health-based Places of Safety is an important issue, along with appropriate conveyance arrangements: there are national guidelines on relevant s136 PoS standards, including conveyance; there has been adverse caselaw and IPCC inquiries arising from the detention of individuals in police custody; and, of course, there is an ongoing argument from the Royal College of Emergency medicine that Accident & Emergency departments are unsuitable places to take someone with a mental health problem.

SPECK JUDGMENT

So here’s a peculiarly British kind of problem: there is no legal obligation at all, on anyone at all, to ensure suitable provision of a health-based Place of Safety service of the kind envisaged by the Royal College of Psychiatry standards on s136 (2011). No legal duty, whatsoever. Everyone agrees it’s a good thing and that it should happen; that bad things are seen to occur when it doesn’t happen … but no-one has a duty to ensure it actually happens!

You couldn’t make this up!

For what it’s worth: I was surprised the argument was put at all. Easy to say this after the ruling, but I think I’d have predicted this outcome, because ultimately, any medical issues that cannot or should not be managed in police custody as a Place of Safety can lead to officers removing someone to A&E. Whilst there are many reasons to argue that a health-based Place of Safety is highly desirable, it’s not ultimate critical to providing emergency patient care – that’s what A&Es are for.  I fully, fully appreciate that A&E will not like this argument, but it nevertheless remains (legally!) true.

This ruling is interesting for a couple of other points: the judge made passing reference to the ‘designation’ of local services as a Place of Safety, pointing out that the Chief Constable had agreed to designate police custody for use. It was therefore interesting that they did not mention the issue of designation when referring to the officers’ legal right to remove someone to A&E as a hospital. This remains one of the points of confusion in some areas, about whether A&E is a Place of Safety at all. I’ve always argued that irrespective of whether or not it is ‘designated’ as such, officers remain entitled to take the decision to remove someone to such a location, especially where they have concerns about the immediate health of a patient.

This brings us back to the key issue in the death of Toni SPECK and others like James HERBERT, Michael POWELL, Sean RIGG as well as plenty who I won’t name as investigations and / or legal cases are ongoing: to what extent should police officers be responsible for deciding without any clinical support whatsoever, the location to which someone should be removed under the Mental Health Act? We continue to learn of cases like that of Toni SPECK, where people detained were suffering from a serious underlying medical conditions that required urgent intervention but which would not always be obvious to non-clinical staff, even with an up-to-date first aid certificate! It must be heart-breaking to learn, as her family did, that if officers had removed her to A&E, it may well have been possible to identify and / or better react to those medical problems.

WHAT DOES THIS MEAN?

This is not a binding, stated case – although it potentially clarifies the situation for some: there is no explicit legal duty on any organisation in particular to ensure health-based Place of Safety provision. Does this mean that areas could simply choose not to provide these services? … everyone seems to agree they’re a good idea! Well, that’s what happened in many areas for most of the time since the 1959 Mental Health Act received Royal Assent and first introduced the modern s136 power. It was only around 2010 that we moved to a position where more people were detained in hospital under this provision than found themselves in police custody. We also know that some mental health trust areas have reduced their PoS provision over the last few years and that others are looking to do so.

But this ruling implicitly confirms a couple of things – and they are important. The whole thrust of the concern leading to the Coroner’s decision seemed to be the understandable anguish that if faster access to clinically qualified staff had occured, it may well have led to identification of Toni SPECK’s condition and a life-saving intervention applied. I infer from the challenge brought and the judicial review sought that it was assumed a health-based Place of Safety would have delivered this? … I suspect it didn’t make the crucial difference, but maybe I’m wrong about that.

Would a mental health nurse at a PoS mental health unit who was undertaking an initial and routine screening assessment of a detainee have identified concerns about their agitated, resistant presentation and / or serotonin syndrome and recommended removal to A&E? Almost certainly not, would be my experienced-based answer. Would a police officer or paramedic have been able to do so at the scene? It is certainly not reasonable to expect the police to do this – something the jury in the inquest made quite clear in Toni SPECK’s case. So we’re back to paramedics who are now usually called by the police to the scene of detentions under the MHA – is it reasonable to expect them to identify such issues and what about occasions where they are unable to respond?

As the High Court refusal to allow judicial review made clear: the police have got every right to remove people to an A&E department where they are unclear that someone would be safe in police custody and of course, this includes custody sergeants who have already detained people in custody, but where concerns develop about health and wellbeing. If NHS areas wish to do this by ensuring ambulance responses and health-based Place of Safety provision – notwithstanding a lack of clear legal duty to do so – then they increase the likelihood that police officers who are increasingly aware of what can go wrong as more an more evidence mounts amidst the tragedy of lives lost.

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Scots Law on Mental Health

I’m off to Scotland on Monday and half hoping the weather warnings we’re just hearing about might mean I get stuck there! I’m originally from the very north of England so a lot of my childhood memories involve holidays and short trips to Scotland – I’ve always loved the place and especially the people. At university I spent two summers playing bass in shows at the Edinburgh Fringe and have some great memories from that, as you might imagine! Living in the Midlands, I’m able to go there very rarely so I was thrilled to be invited to support work that Police Scotland are doing on early intervention, mental health and criminal justice and I’m looking forward to going again in March to do a presentation at the Royal College of Psychiatrists’ Forensic Psychiatry conference in Glasgow.

So I’ve been spending a lot of time reading … mainly Scots Law on mental health and capacity; and I admit I have my eye on a book I will buy to learn much more if this work continues beyond next week. But this post is a fairly short one: aiming to provide a load of hyperlinks to various legal instruments and other mental health websites that people may find useful, including police officers in Scotland. I just kept a list of the ones I was looking up as I did my background prep and thought you may also make use of them?

LEGAL INSTRUMENTS & RESOURCES

A very good website for all things mental health in Scotland is that of the Mental Welfare Commission – the Commission is the statutory regulator for Scotland and ensures the law is being adhered to through visits, inspection and investigation. Their website includes easy-to-understand guides to the mental health system and mental health law as well as containing links to other resources and websites. In particular, I’d encourage those who want to know more to click ‘the law‘ on the top toolbar of the Commission’s website which opens up links to the Mental Health Act 2003, the Adults with Incapacity Act 2000 and the Criminal Procedure Act 1995. Each of the links to those pieces of legislation has easy to understand summaries of the most important provisions.

It is also worth looking at the Scottish Asssociation for Mental Health, the leading mental health charity in Scotland – again, loads of resources on their website for all those interested in, affected by or working in connection with the mental health sector. There is a load of useful stuff on there and it’s worth taking a look.

If you want to read the source material directly for yourself, go to the main legislative instruments for Scotland on mental health and capacity law, as well as the criminal justice system. They are –

POLICE POWERS

As always, there are various police powers under mental health law that police officers should know about and officers.should also make sure they are aware of the psychiatric emergency plan for their area, which is issued under the MHA Code of Practice (vol 1). An example of a PEP from Dumfries and Galloway is a useful document to read – I’m assuming at this stage that such documents are supposed to exist across Scotland, but I’m struggling to find others at the moment. There is also the Scottish Government’s mental health strategy, 2012-2015 which should keep me nicely occupied on the train tomorrow and prevent me getting in to trouble.

Amongst the legal powers of interest and relevance to police officers under the MHA, these are the most significant –

Some years ago, when I first starting writing the BLOG, I wrote some Quick Guides about English / Welsh mental health law. I later adapted them with the assistance of Scottish officers to create Quick Guides on Scots’ mental health and capacity law and I’ve recently been contacted by a few operational officers to say that they find them useful and that they’ve helped make a positive difference at incidents. I’m more than aware that not working with this legislation every day, I may be missing some of the subtleties that need to be considered so I’m more than happy to take feedback about how to improve these, if anyone has ideas? … just leave a comment below or use the email contact sheet on the front page of the BLOG.

I hope this helps as a starter for ten?! – there will be more to follow this, I’m sure.


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

Winner of the Mind Digital Media Award