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 their perspective to offer and this is unlikely to be an identical take on things) chose not to follow this suggestion. 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. And there are examples of where officers decline to use s136 on request, becuase they genuinely and correctly believe it’s not necessary or the other grounds aren’t met.
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 removed 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 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 –
- The actual risk assessment relating to the individual
- The legal context in which the decision to assist / detain / arrest is being made
- How this will affect the individual and the partnership work that will result.
But the risk 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.
RISK ASSESSMENT
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 of risk, to justify a decision to leave a person in a non-secure environment with healthcare colleagues who lack obvious legal powers to stop someone leaving and who may struggle to give effect to any attempts they may have to make to try?
And ask people: research on risk-prediction (Dr Leah Quinliven, University of Manchester) indicated that some of the better 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. This was when considered against the clinical use of more actuarial risk-prediction tools which involves questions and scoring, for example.
So take people seriously and believe what they say – it goes a long way!
LEGAL CONTEXT
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 –
- Assist someone on a voluntary basis wherever possible and as a first resort.
- Consider use of s136 MHA, if the encounter occurs in a place where it may be lawfully applied.
- Justify any intervention under the Mental Capacity Act 2005, if the situation allows for it.
- (Consider the relevance of the Children Act 1989, if dealing with a situation involving someone under 18yrs of age)
- Consider police powers under criminal or common law (arrests or Breach of the Peace).
- Seek support from mental health professionals for interventions under the MHA if the encounter proscribes use of s136 MHA.
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?!
Discuss!
AUTONOMY AND PARTNERSHIPS
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 – 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 of complex and personal 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 those 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).
TACTICAL ADVICE
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 to be seen?
- If so, I’d signpost or refer the person and assist them on a voluntary basis, allowing them to take their own decisions.
- If not, I’d consider my legal options to ensure their safety, their dignity and their rights.
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 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 could deny people the rights which come with being legally detained.
Think about it: officers may want to remain with people for a number of positive reasons, including just being human and helpful. It may also be to prevent someone coming to harm before support is offered and to prevent a high risk missing person investigation – always an anxious time (and resource intensive). We just need to be clear that any situation in the ED doesn’t end up amounting to something where autonomy has been restricted to such a degree that we’ve crept beyond just making sure people are OK and settled on arrival at that service, and reached a position where we’ve effectively forced a situation on someone, even if we’ve done so for all the right reasons.”
But it’s about more than that: what might this situation deny you? —
DE FACTO DETENTION
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 normally suggest a member of the public access a service on a voluntary basis unless I was satisfied it would be safe and appropriate just to signpost them to it or where I’d be quite happy to leave them after helping them there. If I felt I must deny them the privilege of their autonomy, I’d want to afford them the respect and protections they deserve in that context and ensure they have rights.
Hope that helps!
M./
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 OBE, 2020
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 