I’m not sure how many inquiries and thematic reviews in to public services have ended up focussing on clear communication and information exchange – this has certainly been said during investigations and inquests where the police became involved in mental health incidents. There more than are a few situations where clarity of communication between organisations tends to be problematic and I want to focus on a few of them, by way of making the same point: that we need to be both clear and precise with each other about what we’re asking and saying as we work in partnership to put those of us affected by our mental health at the centre of decision making.
- Threat / risk assessment – if we’re saying that someone is facing a level of risk and we need to support each other in managing it, what is that risk and how likely is it to be realised?
- Legal context – what is the legal situation within which the request sits? For example, is the patient you’re asking us to return, subject to a legal framework which allows for this?
- What, precisely, is the ‘ask’? – what are we asking each other to do, specifically. Communication sometimes boils down to ‘do something’ and it could be interpreted a few different ways.
There’s more to it than this, but we’ll start here!
THREAT AND RISK
Where an agency is asking the police to become involved in managing risks, the officers involve need to know what those risk are, as precisely as possible. Control rooms and police supervisors also need to know, so they can make the correct decisions about response times, resources required, etc.. A recent discussion took place about requests for police responses where key factors like weapons, suicidal ideation and other kinds of threats were left entirely unmentioned until it was suggested that another agency might be better placed than the police to support the person concerned.
Two implications –
If the incident really always did involve weapons, violence or self-injury, that probably should have been front and centre of the request to focus the minds of the call takers, supervisors and officers on the gravity of the situation and to allow them to take decisions. Of course, if the use of those words was only really introduced to the discussion after a suggestion that the police response may not be the most appropriate, then it may cause some to wonder whether those words really were relevant, given they went unmentioned to start with. It’s in the nature of working in the police service to be questioning and to a certain degree cynical, but imagine if the police responded to a situation where risk had been inflated beyond its reality and the officers then used coercive force, perhaps to force entry to a building where normally there would have been no grounds?
If legally challenged, the chief constable or the officers would naturally say, “We were told [X and Y and Z] about this incident, therefore we felt we had grounds to enter. If those things weren’t correct, then obviously I have been placed in a difficult professional position but I acted in good faith based on what I was told was happening.” << This is not hypothetical: complaint investigations have occurred where officers acted in that way based on information from the NHS, only for it to be subsequently shown that the risk and threat had been, let’s say ‘inflated’. So clear communication of the actual threats and actual risk, as best they’re understood whilst accepting they can be ambiguous, is crucial. Being unclear or inaccurate about what is actually thought and known, creates the potential for the police to under-respond or over-respond to a situation and both are bad, albeit for very different reasons.
LEGAL CONTEXT
I’ve regretted for years that we don’t give more comprehensive legal education to professionals at the interface of policing and mental health so fully accept that sometimes, the communication of legal context is difficult for all. For good or for bad, I’ve very much ended up focussing my interest on policing and mental health on its legal aspects. In short, I’m not trying to be a healthcare professional and very aware of the endless and often circular arguments about what gives rise to human distress. It’s because I’m not trying to fix this stuff, but to police it to the best of my ability, that my angle of interest ended up being the legal one. And when it comes to police officers asking questions about this stuff, they tend to be asking legal questions, rather than anything else.
- Do I have a power to do [THIS]?
- Do I have an obligation to do [THAT]?
- What powers and obligations do (mental) health services have here?
- Whose responsibility is it … etc.!
- Most importantly: what rights does this member of the public have in this situation?
The absence of clarity can be problematic, for reasons which are potentially much more obvious. Acting unlawfully should be seen as inherently bad for its own sake, especially where it’s the police involved. Some common examples of where a lack of clarity can lead to confusion might be: the period of time in which a patient who is ‘absent without leave’ can be re-detained by the police under s18 MHA. (Section 18 authorities to re-detain someone who is ‘missing’ can be indefinite and exercisable years or decades from now – but in most cases they are time limited.) So what’s the timescale? – the Code of Practice says hospitals reporting patient missing to the police must inform them of the timescales.
Another example can be: is the person you are reporting missing or seeking help with actually AWOL at all? There have been situations in which the police have been asked to return an AWOL patient where the patient is not (yet) AWOL! “AWOL” has a very specific legal definition (contained in s18 MHA) and in some cases, like the recall of Community Treatment Order patients or the revocation of ‘s17 leave’, AWOL status only comes in to effect after certain administrative things are done.
So were they done?! … it’s not always made clear and I had this yesterday: request to return a s3 patient to hospital:
“Is he AWOL?” … “they’re not sure – the say his leave can be revoked as he’s deteriorating” … “has his leave in fact been revoked? – it will involve a a written notice” … “they’re not sure – don’t think so” … “then we might as well forget about all of that because it seems everyone is very far from clear about s3 / AWOL / revocation: I recommend you keep it simple and plainly lawful and consider the use of s136 if the grounds are met.” Etc.!
DO SOMETHING!
As I never tire of observing, “policing is what happens when something’s happening that ought not to be happening about which somebody ought to do something now!” Not my own line, tragically, but that of US criminologist Egon BITTNER. The need for the police to ‘do something’ is a frequent aspect of demand officers face. It has been known in mental health demand, too. A number of incidents of the police being called to inpatient units have involved unclear or changing contexts. This was observed in the inquest in to the death of Seni Lewis in south London, as well as in other cases. Sometimes, officers have faced requests to arrest and remove a patient from hospital to custody, not because of any desire to see the patient prosecuted for an offence, but as something of a secure ‘staging area’ until transfer to a higher level of therapeutic security can be arranged – this example of ‘do something’ would be unlawful, for various reasons.
The ‘do something’ phenomenon crops up when questions of mental capacity arise between agencies. The idea of doing ‘nothing’, when we believe someone needs help, including medial help, is counter-intuitive to everyone working in #team999 and public service more generally. But the great British public have a habit of throwing up situations where they wish to do apparently unwise things and where it’s far from obvious that the do, in fact, lack capacity to take those decisions. It’s important that the Mental Capacity Act 2005 is not used as a smokescreen for the urge to ‘do something’, where professionals feel understandably uncomfortable about appearing to do nothing for someone we believe to be at risk, but that then comes back to the actual level of risk someone faces.
MENTAL CAPACITY ACT
I want to finish with something specific on the Mental Capacity which touches upon all of these three things – and it should be borne in mind the MCA will be amended later in 2020 to make the following points even more explicit in the legislation itself:
Decisions under the MCA can only be taken where someone lacks capacity to take a decision for themselves and one tool to assist officers or others in determining whether someone lacks capacity is the entirely-made- up “ID a CURE” test. This mnemonic merely attempts to provide a way to remember what the law itself asks. So to determine whether someone lacks capacity you must establish whether the person has –
- An impairment or disturbance of the mind or brain;
- AND … as a consequence of that, can they;
- Communicate, Understand, Retain and Employ information?
This is all with reference to a particular decision the person is being asked to take. For #team999 it will usually be, “would you like treatment for [THAT] or to come to an Emergency Department for treatment?’ If someone says “No!” and we start thinking about whether we could override that decision in their best interests, the IDaCURE test comes in handy and any assessment of risks to the individual by doing nothing, should be weighted on the balance of probabilities. It’s not enough to say, “If they do go to ED they may die” or “may suffer a serious consequence”, but should be considered in terms of probabilities. What is likely to happen if we do nothing? That frames the perception of risk, legally speaking.
In recent examples where I have received queries from officers, they are in situations where colleagues from NHS services are stating that someone lacks capacity and needs conveyance to hospital. I can’t be clear enough about this next point: it’s not the role of the police to second guess or ‘overrule’ any clinicians professional judgement about medical risks and threats or their clinical assessment. But I want to be even clearer about this next point: whether a police officer puts their hands on a person and coerces them in any way, shape or form is a matter for that police officer – and for that police officer alone.
WHAT MIGHT HAPPEN?
Where you want the police to assist you, relying on the Mental Capacity Act as the basis for intervening in someone’s decisions because it’s in their best interests, the requesting professional or agency need to combine all three factors above, to allow the officer to understand that they are acting legally and proportionately to the threat and risk. If I’m the officer attending, this is what I do not want and will not accept –
“This person is suicidal and needs to go to hospital because they lack capacity.”
It’s simply not enough information and here’s why: firstly, being suicidal, of itself, is not an impairment or disturbance of the mind or brain – sounds counter-intuitive, doesn’t it? Only last week the Court of Protection was hearing a case of a man on hunger strike, seemingly determined to cause his own death by not eating and the judge indicated the court is unlikely to intervene as there is no evidence he lacks capacity (case is ongoing). Very obviously, we need to be careful here, because a suicidal person may indeed lack capacity and / or have an underlying mental illness which can and should be properly assessed (and not by the police). But suicidality, of itself and without more, is not an inherent impairment or disturbance, nor does it inherently amount equate to a lack of capacity.
Believing that someone ‘needs to go to hospital’ is one thing: having legal grounds to compel them there is another thing altogether. How serious is the injury or illness; what is likely to happen if they don’t go? << This is crucial: the question is not what might happen, it’s about what is likely or probable. Decisions about intervening in someone’s best interest are taken on the balance of probabilities. Any number of things might happen … a plane might fall out of the sky, but it’s not probable. Understanding all of these points will allow the officers to assess how they can act lawfully. Intervention under the MCA must, by virtue of s6 MCA, be proportionate to the likelihood and seriousness of harm that will be endured if no intervention occurs and ambiguity and uncertainty about what happens is resolve by asking what is probable, not what is possible.
Communication needs to cover all this: what is the actual or genuinely perceived threat and risk; what is the legal context in which we’re working together and what, precisely, are you asking someone to do? When you nail down all of that, there is a chance agencies can meaningfully cooperate – unless you do, there’s every chance your miscommunication builds in hidden risks and threats for all those involved. And remember: those laying on hands have to be satisfied on their own terms that their actions are lawful. Those requesting others to do such work have a ethical but also a clear legal duty to ensure those who will be responsible for justifying the use (or non-use) of force, are able to do so, should they face complaints or allegations for invading someone’s autonomy.
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 