Last week’s topic seems to have been discussions about the ‘duty of care’, real or imagined, which may be owed by the police. Firstly, Inspector Huw Griffiths from Hampshire Police mentioned this a lot when he presented brilliantly at the National Mental Health Forum CPD Event in Birmingham; secondly, it came up on the Masked AMHP Facebook Group in discussions about patients leaving locations where staff may have concerns about them; and thirdly, it featured in a blog post I did which resulted from a real ‘advice call’ I took the week before. It’s come up before and no doubt will do so again – but what exactly IS a duty of care, legally speaking?! It is, after all, a legal concept first and foremost. Simplistically, it is any situation where it would be legally negligent not to ensure the safety of someone after learning they were at risk or after agreeing to take on a responsibility for something pertaining to safety.
There have been some incidents which I’ve covered on this BLOG which show how there is a duty of care in some situations, but not in others. There have been incidents where officers have done what they reasonable and legally can, stopped short of breaking the law to do more and the view was taken they had acted lawfully and without misconduct, despite some attempts to argue otherwise! What these kinds of incidents have in common, however, is a popular misconception that the police owe a duty of care in all of them because officers were on scene or had walked away in some situations. Some of the incidents I’m about to cover have involved investigations by Coroners and by the Independent Police Complaints Commission (now called the IOPC – Independent Office for Police Conduct) only for the outcome of those examinations to find the police had, in fact, done all they reasonably could in the circumstances. In some of these situations, a duty of care was owed: but it was not owed by the police – it was owed by the National Health Service.
So the point being emphasised and highlighted here is the fact that the police sometimes do owe a duty of care in mental health related situations, but also that a duty owed by the NHS does not automatically mean, in law, that the police can, should or will be able to take over that duty in the event the NHS cannot fulfil their responsibilities or where they seek to transfer that duty to officers. The ultimate point is this: where a legal duty is owed to a patient by the NHS, it might have to either be fully discharged by them or not discharged by them and that it will be for NHS to explain the situation, regardless of what they may have preferred the police to do. As a senior Chief Constable said of situations where officers are expected to step in to difficulties with healthcare provision, “I can’t fix that for them.”
Except of course, unless the police are willing to break the law, but that’s very obviously a step too far, given everything we demand from our policing that it should firstly and foremostly be legal and ethically done. Doesn’t stop that being the obvious implication, however. Examples to follow, for the avoidance of any and all doubt.
DUTY OWED
Various incidents involve the police having a duty of care: for example, where officers have legally detained or arrested someone, it is incumbent upon officers individually and the Chief Constable to ensure reasonable steps are taken to ensure that person’s safety. This includes everything from training in first-aid, safe buildings and equipment (handcuffs, vehicles, cell blocks) and processes to mitigate risks that may be reasonably foreseen. If officers arrested someone who said they had chest pains and didn’t call an ambulance or remove the person to an Emergency Department, it would very obviously be negligent if the person died of a heart attack without officers trying their best to get care or do CPR when things became very bad. Whether that care was, in fact available and whether or not it would, in fact, make any difference isn’t the point: the officers are under a duty to do what they reasonably can in the circumstances by calling ambulances, rushing someone to A&E in a police car or doing first-aid.
The 2014 case Webley v St George’s Hospital & Commissioner of Police for the Metropolis outlined, for example, how officers cannot just handover the custody of a mental health patient unless there is agreement by the other party to accept responsibility and where appropriate information has been shared to allow them to keep the person safe. In the particular case, the Metropolitan Police had done this so the hospital were found liable, not the Commissioner. The hospital had no duty to take legal responsibility for the patient, but they chose to do so and this is true of some police situations, which we’ll come to shortly. But in Webley, the police owe a duty of care to the detained person – this is why you can’t just ‘dump and run’ at a healthcare setting if you have legally detained someone in order to get them there for care or support. You can, however, leave after a handover where NHS staff agree to this and nothing in law prevents you asking them to do so, especially if the police are facing competing demands of which this is one of the less-risky situations needing resource because it is a low-risk patient.
Other obvious situations where a duty of care is owed include threat to life situations: where the police receive information someone’s life is literally at risk, they have a duty to do something with that information. It may involve deploying officers to protect someone or arrest offenders; or it may be they inform a potential victim of the threat and help them mitigate that risk in various ways. Most duty inspectors are used to undertaking threat-to-life assessments which are formally documented. In other situations involving serious risks around mental health, self-harm or suicide it may involve officers attending somewhere to force entry to buildings “to protect life & limb”, calling an ambulance and / or trying to secure medical support. The point is, some ‘welfare checks’ do involve significant and immediate risks and the police have a role to play because we alone have certain legal powers and contributions to make. There was a recent case where a 999 call-handler agreed to deploy officers to something after a request for assistance that may not quite reached the Osman thresholds and a subsequent failure to do so was found to be negligent because the police had agreed to take on responsibility. In that respect, it was the same as the Webley case: no inherent duty of care per se, but one is taken on by agreement to do so.
NO DUTY OWED
It therefore follows that where a duty of care is owed by others, or where it has been agreed by others to take responsibility for a duty of care originally owed by the police, police officers and their organisations are under no inherent duty to act in law. The italics are important: many people may have a view the police should be doing something that does not, in law, sit with them. It may even be well established custom and practice, for a variety of reasons, that the police did these things, but nothing would prevent a Chief Constable reviewing those historic commitments where they related to legal duties owed by others. It is my own view that we’ve come to rely upon the police too much for things they have neither the skills, duties nor legal obligations to do. The worst news of all is that decisions to remain uninvolved in things where there is no legal duty are decisions which can be taken by all operational officers – especially if doing so contradicts no policy for the force or where the officers simply lack the professional skills and competence to discharge whatever duty of care they mistakenly thought they owed.
NB: I’m referring here to a legal duty of care. We’ve all got moral frameworks and they vary enormously: that’s why we have laws!
Some examples may help here –
- Mental Health Act conveyance:
- The duty to convey a Mental Health Act patient from the point of application to hospital – once an MHA application is made by an AMHP, the patient is in the AMHP’s legal custody and by that stage, the NHS have agreed to admit the patient. The legal responsibility to get the patient from place of assessment / application to the admitting hospital is the AMHP’s, not the Chief Constable’s. It therefore follows that AMHPs and their organisations and / or the NHS owe the patient a duty of care, because they have assessed them as vulnerable and decided to remove their liberty. How the Local Authority (who licenses AMHPs) and / or the NHS undertake this is a matter for them.
- Chapter 17 of the Codes of Practice to the Mental Health Act 1983 (in both England and Wales) outline how CCGs (England) and LHBs (Wales) must ensure access to appropriate conveyance and whether this is a 999 yellow ambulance or some form of mental health ambulance from a private contractor is a matter for them, not the Chief Constable. The MHA itself does not make all coercive conveyance the responsibility of the police – the threshold for officers’ involvement is outlined in both Codes and it is where the patient IS ‘violent or dangerous’. I submit this is a high threshold and resistance or fear, even where manifested physically is not, inherently, violence and dangerous in a way that is beyond the scope of reasonable planning for forseeable risks (health & safety law phrase).
- This point remains true, even if the police have been ‘on scene’ with someone prior to their assessment under the Mental Health Act 1983 – we saw this most plainly and recently during the late-2018 inquest in to the death of David Stacey in Leicester. Officers attended a MH crisis incident in private premises, waited with David until MH services turned up to assess him. They left upon arrival of the NHS and AMHP and declined to return when it was suggested they should. The Coroner’s jury found that the failure to admit David was neglect by MH services because of breaches in their statutory duty and in no way reflected any kind of neglect by the police.
- Welfare checks:
- Always a firm favourite and I’ve covered this before. There is no statutory duty upon the police to undertake welfare checks, except where the above-mentioned Osman criteria (threat to life) or where agreement or some other legal duty applies.
- If the police agree to undertake a welfare check they would otherwise have no duty to undertake, they accept a duty of care. But declining to undertake checks they have no inherent duty to do, perhaps because they actually lack the professional skills or legal powers by which to assure themselves or otherwise ensure the person’s safety if there were doubt about it, is not a breach of any duty.
- This is another issue on which police officers are sometimes accused of pedantry – it’s not about any such thing: it’s about competence and legal duty. The fact that another organisation has declined to think of ways by which it gets welfare checks done when they think they are necessary but where urgency and threats to life are present, does not create a legal duty for the police.
- Of course, where a police, officer or call handler does in fact agree to undertake such a check, the can win a duty of care, especially if this agreement persuades those seeking help or seeking to transfer their duty of care to do less than they would have done if the police had declined.
- Missing Patients:
- This topic overlaps with issues around welfare checks because the fact that someone is a missing patient may lead to a request for a welfare check – it should be remembered that a missing patient for the NHS is not always a missing person for the police. And, yet again: this isn’t pedantry!
- Paragraph 28.14 makes it clear to the NHS in statutory guidance (the Codes of Practice) that recovering AWOL patients whose location is known is a matter for the NHS, not the police. It offers the qualifying remark “where necessary” but this should NOT be interpreted as meaning “it’s necessary because no-one else wants to do it” or “no-one else has the resources to do it.”
- ‘Where necessary’ means that the risks, urgency or threats involved are such that only the police could reasonably be expected to manage them. And where time allows for it, the police should not be asked to do this alone, because we are ultimately talking about unwell patients and the clinical complications humans can present with may well be out-of-scope of the average first-aid-at-work certificate.
REAL EXAMPLES
So here are some cases where officers attending something, did what they could and did no more, for reasons they felt at the time were appropriate in the circumstances –
- Nicola Edgington (2011) – officers encountered Nicola in a place where s136 could not be used. She wanted help for her mental health problems and officers assisted her to attend A&E to see psychiatric liaison services. Once in A&E, officers attempted to leave her there (she wasn’t under arrest or detained MHA) and Nicola attempted to follow them out of the department. They sat her down again and after speaking to her and reception, left A&E waiting a few minutes to ensure she didn’t immediately try again to follow them out. Officers had asked reception to ring if there were problems and perhaps get security to keep an eye on her. Nicola remained there until seen by psychiatric liaison nurse and was admitted to a nearby MH ward on a voluntary basis. Not long after arriving there, she left through an unlocked door and took a bus to Bexleyheath where she stole a knife and attempted to murder Kerry Clark before then murdering Sally Hodkin. The inquest found no fault with the police service, Mrs Hoskins family had no complaint with officers and issued a public statement thanking hte police. The IPCC (as was) found there was no criminal or misconduct liabilities for officers at all. However, this didn’t prevent the NHS trust’s independent report in to Nicola’s care attempting to blame the Metropolitan Police for the murder, because officers had not used s136.
- Michael Thompson (2016) – Michael lived alone in Lewisham. Over a several days his family became concerned about his mental health after he started neglecting himself and stopped communicating. Several days of attempts to secure a GP visit failed in one evening, they rang 999 for the ambulance service. Paramedics having been unable to persuade him to attend A&E and having determined that he lacked capacity, asked for policce support. Officers pointed out they had no legal powers in that situation and advised referral for an AMHP-led MHA assessment via the GP. Paramedics put in the referral but it wasn’t acted upon before Michael set fire to his house and went to bed. He died after a cardiac arrest following smoke inhalation in what was regarded to be an accidental death because his mental health issues would probably have rendered him unable to understand what he was doing. There was no criticism of the police or ambulance service for failing to remove him to hospital, becuase the law simply didn’t allow for it. Appropriate referrals went to appropriate agencies and they are responsible for whether or not they act upon them. Always remember: s13 MHA places a duty upon local authorities to ensure an AMHP considers the need for assessment wherever someone may need an application made under the MHA.
- David Stacey (2017) – David experienced his first psychosis at 67yrs of age and was brought to police attention by a neighbour who was concerned for his welfare. Officers waited with him until seen by a street triage nurse and until the arrival of an AMHP and two doctors to undertake a Mental Helath Act assessment. Upon arrival of the AMHP/DRs, officers left. A further request by those professionals for the police to return was declined. MHA professionals then left him at home because they had no bed available and David drove his car in a busy road, losing his life in a traffic collision at high speed. At the inquest, attempts were made to suggest the officers should have stayed for the MHA assessment and an independent psychiatric expert gave a written report and oral evidence suggesting the police should have returned to the property when asked to do so and remove David under the Mental Capacity Act 2005 to a hopsital to ensure his safety. The jury in the Coroner’s court found this was not legally correct: the Coroner did not even allow the jury to consider whether there was any police neglect because they hadn’t done anything wrong, except refuse to do things which the Code of Practice makes the repsonsibility of the AMHP/DRs or which is unlawful. David’s death was an accident contributed to by neglect of statutory resposibilities by the non-police agencies.
Just because bad things happen and the police were previously involved or in contact does not mean it was the police or the officers’ fault! In fact, far from it – of course, the devil is the detail of each incident but the police and the public are entitled to make an assumption that other agencies will understand and act upon their duty of care, according to law.
PUT THE PUBLIC FIRST
There are other situations: the point here is not to list them all, but to outline the principles around the duty of care thing that keeps popping up. It’s a phrase so over-used and misunderstood in day-to-day policing and practice that we forget to ask the legal question of whether it is, in fact, a real thing in a given situation and if so, who owns it. What is certainly not true is that the police owe every person in the country with a mental health problem a legal duty of care, even if brought in to an incident by healthcare services struggling to discharge their own duty of care. Nothing prevents GPs or MH trusts arranging for NHS staff to check the welfare of patients who failed to show up to appointments. How they do this is a matter for them, notwithstanding how difficult they may find it or how much they’ve relied upon the police to do so in the past.
And finally, once again: this isn’t about pedantry! Nor is it about police resources. Some of the points made above are an argument for more police resource being spent in some situations because the officers carry a duty of care. This post is about trying to ensure discussion which leads to us all putting the public first in decision-making so we don’t over-police them by ensuring they get the care they need the most appropriate agency. This will mean policing people in some limited situations but where the law and statutory Codes outline specific requirements, often by implication of the text but sometimes explicitly: the duties owed to vulnerable people are owed by organisations and their professionals, let’s make sure that’s the default assumption about how things get done.
Over-policing is as bad as under-caring.
I’ll end with a cynical point, if I may, but I haven’t been able to shift this thought in about 15yrs of caring about this agenda: where the duty of care debate comes up, it always seems to be to be one-way traffic and part of an argument for more policing of vulnerable people. So do keep in mind my main observation about the problem we’re need to be addressing: the problem here is not the police – the problem is the extent to which we over-rely upon the police as a crisis and community service for mental health patients. I’m finishing this post on a train journey to London and have just got off the phone with a senior officer seeking advice and the situation involves exactly this. Preference that patients be criminalised rather than cared for and the reasons given are nothing whatsoever to do with the law of the land. Go figure.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2019
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – http://www.legislation.gov.uk
Mental Health Cop 