This post comes at the direct request of a mental health professional, touching on matters I’ve written about before but which keep coming up, somewhat resistantly – it follows an incident where officers local to them came to an Emergency Department with a person in handcuffs for NHS assessment around their mental health and where the liaison staff had questions about the legal situation. During discussion, it was suggested the police should consider the application of s136 MHA, but the officers (who no doubt have a perspective to offer that may not be identical) chose not to follow this suggestion. And to be completely fair, they may have had their reasons – many people don’t realise, for example, that the use of handcuffs by the police is not JUST something that is done following an arrest; or even during a detention under the Mental Health Act 1983.
Police officers can and do use handcuffs to restrain people in a number of situations, relying on a number of legislative authorities to do so. For example, it’s not unknown for handcuffs to be used during a stop and search encounter or during the execution of a search warrant. Doesn’t happen routinely, because no restrictive practice in policing can be applied routinely without thought, but it would be wrong in law to insist that police officers cannot handcuff someone stopped for hte purposes of a statutory search. It would also be wrong to suggest police officers can handcuff someone being remove to hospital for what you might call medical reasons. But it would need to be clearly justified. The concerns of my healthcare colleague seem to be predicated on the clinical staff not being clear about the basis for this and confused about why the lack of legal clarity was allowed to remain as the agencies started to work together in the interests of the person who is at the centre of it all.
So, how should officers approach the issue of assisting someone on a voluntary basis to attend an Emergency Department or a mental health walk-in service, which is another context in which I’ve received these enquiries. When should they be detaining and when is it appropriate to assist without recourse to the law? I would argue for a number of reasons, it’s important to get this right and there are three big things to consider –
But the principles to be borne in mind as we weigh these things is that our decisions at the end must assume capacity on the part of any adult, we must do the least restrictive thing in formulating our response and we must consider whether our actions are proportionate, legal, appropriate and necessary.
First things first, what is the officers’ perception of the risks involved, based on the information which is available to them at the time? This perception may or may not be influenced by opinion of other professionals in attendance, such as paramedics of mental health professionals.
Obviously, this assessment will be a balance of concerns around mental health, injury or illness, drugs and alcohol as well as previous history including offending and / or engagement or abcsonding. What do we think will happen to this person if we do nothing, what do we think will happen if we assist them on a voluntary basis purely to access a service and leave them there to receive it? Would we be concerned, based on our assessment or risk, to justify a decision to leave a person in a non-secure environment with healthcare colleagues how lack obvious legal powers to stop someone deciding to leave and who may struggle to give effect to any attempts they may feel they have to make to try to stop them without compromising everyone’s safety?
And ask people: research on risk-prediction (Dr Leah Quinliven, University of Manchester) indicated that some of the best risk-prediction tools are humane and compassionate conversations between professionals and vulnerable people where we simply believe what people say about the risk they think they face from self-injury or suicide. So take people seriously and believe what they say – goes a long way!
You have to take any decision in a legal context: so if a person is first encountered in a location where s136 MHA cannot be imposed, then s136 is not a legal option, by definition. It might be, in such a case, that initially assisting someone on a voluntary basis becomes more likely because of the sheer inability to do otherwise. But the options available to police officers are –
You can only spin your risk assessment around those legal options, unless you are prepared to suggest that ‘assistance’ on a voluntary basis can also be accompanied by use of restrictive practices (like handcuffs). But if we are operating in that domain, then would one of the above legal frameworks not also apply and bring clarity, rights and benefits to the person?!
Most importantly of all, I would argue, is any decision taken needs to give due regard to the safety, the dignity and the rights of individuals – to respect their autonomy. The more I’ve worked on this agenda, the more important I think things like civil liberties and human rights are important – we wouldn’t doubt this in policing more generally, so shouldn’t be doubting it in our responses to mental health matters. People may choose not to seek support for their mental health issues, that may be for a multitude or reasons. People may choose to seek help, then change their mind about that – and we’re entitled to get bored and / or frustrated if seeking help becomes to difficult to contend with. I’m sure we’re all aware of cases where someone has attended an Emergency Department for support, sometimes waiting up to 12hrs to be seen, even where other medical issues don’t hold them up. People are allowed to make their own decisions, even if those decisions are unwise, about help-seeking and to reflect their perceptions and experience in their decisions.
This is all true in law and in ethics until such time as the law allows for state intervention:
You may make your own decisions about your health or access to services, just up to the point where, for example, a police officer decides the grounds for using s136 MHA are satisfied; or where an Approved Mental Health Professional (AMHP) decides you require admission to hospital after medical assessment by one or two doctors. At that point, the law provides for substituted decision-making and you can be compelled in to assessments of various kinds, or admission to hospital. The Mental Capacity Act 2005 provides another framework by which the state, including the emergency services, may lawfully restrict your autonomy. So the big question remains: when should they do this and to what extent is it permissible to fudge people’s rights to take their own decisions (even if unwise from whatever angle you judge that).
I’ve advised for years: if you encounter someone and have to take the decision to assist or compel, you should assist wherever possible, because this promotes autonomy and respect for the principle of least restriction, unless you think that is inconsistent with ensuring the safety of the person and there is a legal basis for intervening.
So, I’d ask myself –
If I assist this person to hospital (or a walk-in service of some kind), would I be happy to leave that location after they book in an?
What I can’t say I’d ever do, is assist someone to a service on ‘voluntary’ basis and then stay with them to make sure they remain there under all circumstances until they’re assessed, because I’d worry (being a uniformed police officer with the coercive authority of the state at my disposal) that this would inflict upon them a de facto condition of detention. This denies people the rights which come with being legally detained. Think about it: if an officer remains with you in an ED waiting room for hours, precisely to make sure you can’t leave without them being able to detain you under s136 MHA, they have, in all reality, detained you already – because you can’t leave. If you try, the detention you already feel will then be formalised and you’ll be staying anyway.
But it’s about more than that: what does this situation deny you? –
If the officers just remain there with you to prevent you leaving, any overt lack of acknowledging and reflecting that means you have fewer rights and protections during your detention. If detained under s136, the officers have to inform and AMHP, you have rights explained to you and your process has to be conducted to certain professional standards, to certain timescales, both statutory and non-statutory. Without that, you’re just in being kept in the location without those oversights and safeguards – we know of cases where de facto ‘voluntary’ detention has lasted longer than the 24hrs maximum permitted under s136 MHA.
On a strictly personal level: my healthcare is my business and it’s nothing whatsoever to do with you, so if you’re forcing me to accept otherwise and refusing me the right to make my own decisions, I want something in return.
I wouldn’t assist a member of the public on a voluntary basis to access a service unless I was unable to signpost them to it or unhappy to just facilitate their access and leave again if they wanted to. If I felt I must deny them the privilege of autonomy, I want to afford them the protections they deserve in that context.
Hope that helps!