There is a commonly occurring scenario amongst our 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. Wouldn’t BLOG on this unless it had happened a large number of times and I’ll prepare you: I’m banging on at length in this one to set it all out again(!) because it really grinds my gears how often I hear of this! But if you just want the punchline, there is a Quick Guide on responding to mental health crisis in private premises.
It usually 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 the view that 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. Paramedics call for police support and when the officers arrive they point out that because of potentially serious mental health problems, the person needs to go to hospital 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, 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 overused and blatantly 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 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 after being 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 situation. 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 understate 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.)
And for the police officers reading this, one particular thing that went wrong is that you believed you were obligated because paramedics had declared the person to lack capacity. I’ve been there. In all fairness they may lack capacity, but here are two crucial questions you need to ask the paramedic who claims this –
So where our friends in green say, “This man’s taken on 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 clearing 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 must 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?!
So 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 and that urgent consideration needs to be given to their treatment and also to consideration of the 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 person – 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 only get as restrictive as you absolutely need to be – anything more and the intervention is disproportionate and therefore unlawful.
So 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 if I try, I could 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 could the MCA allow officers to remain on premises even where there are objections to that, whilst they or their supervisors assist in escalating matters to ensure that less-restrictive outcome.
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 that 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 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 interpolations 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.
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 professional 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 on this 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.
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 required.
Winner of the President’s Medal from
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award.