Do Coroners and their Preventing Future Death (PFD) reports emphasise all the legal issues at play, arising from the tragedies behind the inquests? I’ve explained before what a PFD is, for those who may not be familiar with them, and I’ve also explained how, on occasion, organisations may feel inclined to disagree with a coroner’s conclusion about what is required to mitigate a future death.
It is in this kind of context I heard of a remark earlier this week where the need to ‘educate’ coroners was raised, especially about legal issues at play. This is a tricky suggestion, for reasons which should be obvious – many Coroners are legally qualified (the role is open only to doctors and lawyers with experience of practice). But also worth pointing out that many inquests are conducted with “interested parties” being represented by lawyers of their own, sometimes including Kings Counsel. There is ample opportunity to raise legal issues to a Coroner’s attention, where an interested party believes them to be relevant to their position on the events being considered.
But all that said, is there still room to think Coroners could emphasise or amplify legal issues that are relevant in various kinds of case. I think there is not only room for that discussion, but a need for it.
NO AVAILABLE BED
We know of many cases where the lack of an available mental health bed has been behind a delay in admitting someone to hospital under the MHA. In recent days a PFD has been published after the sad death of Ben Shipley in West Yorkshire. Ben had been taken to an Emergency Department by his family who were seriously worried about his mental health. He was assessed there by an AMHP and two doctors (albeit the AMHP went unmentioned in the PFD notice!) and it was decided he needed admission under s2 MHA. In the absence of an obviously available bed, there was a significant delay in ensuring this admission. Ben left the ED after 17hrs of delay and died by suicide.
It’s worth reading the PFD notice: in addition to failing to mention the AMHP and instead emphasising a mental health nurse who plays no role in a statutory assessment for admission, there are few things which leap out by virtue of being entirely unsaid. They are issues which have been mentioned and emphasised in other PFDs where a lack of bed for admission was relevant. Section 13 of the MHA is a section I have explained more than once this week, after questions from officers about MHA applications. It lists the criteria which must be met after which the AMHP “shall make the application”. These criteria make no mention of beds at all – indeed, the MHA makes no mention of beds at all —
- Patient meets criteria for an admission provision like s2 or s3 or s4 MHA
- The AMHP has considered the views of the patient’s Nearest Relative, where practicable
- The AMHP then concludes that it is necessary for them to make the application (because no less restrictive approach is consistent with ensuring health and safety)
- The AMHP “shall make the application”
Now – and in fairness to AMHPs and AMHPing everywhere – they need to know which hospital will be receiving the application and it’s the doctor’s job to identify the hospital, not the AMHPs. << If you’re not an AMHP, please not this point: AMHPs are often blamed for the lack of a bed and it’s neither their fault nor their responsibility! It’s the NHS’s responsibility to ensure the Doctor can identify the hospital required (because mental health units vary in terms of the kinds of patients for whom they care). To this end some law is relevant
HOSPITAL ADMISSION
The Intregrated Care Board Section is the NHS body in each area of England who have repsonsibility for ensuring they commission appropriate healthcare services for their populations. Within this, they have a legal duty under section 140 MHA to identify hospital to which they have access who can receive MHA patients under 18yrs of age and those who can receive patients in “reception of patients in cases of special urgency”. So you should, for example, be able to ask your ICB the names of these hospitals. AMHPs can / should ask this when faced with urgent circumstances and they feel they must make an application without delay, to mitigate a risk, for example. Coroners could ask this, in circumstances where an inquest suggest there was desperate situation that require such an approach – they could ask the AMHP whether they asked for this and what response they received to the idea of an application; they could ask the ICB whether or they comply with the duty to maintain such a list. << I’ll help you out here after many Freedom of Information requests over the years: they don’t all do this, despite the duty.
Section 6 of the Human Rights Act 1998 is relevant to how an AMHP, a doctor or an ICB interpret their duty: this HRA provision points out “It is unlawful for a public authority to act in a way which is incompatible with a Convention right.” So fail to handle an MHA admission in a way which ensures someone’s Article 2 or Article 5 rights, and you’re acting unlawfully, put simply. This would remain true even if there are genuine difficulties identifying a hospital to which an application can be made.
The relevance of all this to the Ben Shipley case seems to be is sections 13 and 140 MHA and s6 HRA all going unmentioned in the PFD. This is in contrast to some other cases where s140 was emphasised (albeit not the other two provisions I’m emphasising here). The PFDs after the deaths of David Stacey (Leicester) and Nigel Abbott (Birmingham), the Coroner’s expressly referenced s140 MHA as relevant. It’s a curious provision: a few years back, the Care Quality Commission published some guidance on s140 MHA after work undertaken by them on this precise provision. I attended a workshop in Manchester at the end of 2018 which was part of the work done to help fashion the guidance. It having been published towards the end of 2019, it only remained on the internet for less than a day before being curiously withdraw with a suggestion it would be re-published at a later date. I have a copy of the withdrawn guidance, downloaded before it disappeared, but I’m not aware of it having been republished in the years since and here we still are, with case proceeding to inquest where guidance on this provision would seem most useful.
LESSONS LEARNED
Isn’t it heard in the aftermath of manny tragedies that lessons will be learned: I’ve known it be said a number of times after suicides or deaths in police custody which were argued to be preventable. OUr collective responsibility to ensure our AMHPs friends can comply with their s13 MHA duties when faced with urgent and desperate situations would appear to be key to being able to claim this credibly. The PFD after Ben’s death states “I am told beds do not become available overnight. This means Ben cannot be legally detained as the section 2 is not complete until there is a bed.”
It must be all kinds of tragic to realise that this claim simply isn’t true (albeit in fairness to the Coroner, it’s often and very forcefully claimed): on the night shift I’ve just finished working there was an example of someone being detained under s2 MHA to a hospital where there was no bed: and although unusual, such practice is not rare. A person detained by the police under s136 MHA had been assessed as requiring admission and there was no obvious bed solution. So the AMHP made the application to the hospital containing the Place of Safety in which the person had been assessed under the MHA and they remained in that Place of Safety but as a s2 patient. The CQC sometimes refer to this as a “swing bed” in their MHA reports and it’s not uncommon because of the bed pressures on the mental health system. It’s something else I’d argue AMHPs should always consider when someone remains undetained and suicidal or where a detention ‘clock’ of some kind is running out – and Coroner’s should ask whether this was considered: and if not, why not or why was it discounted if it were?
Such an approach is less than ideal: nobody is suggesting it is best practice mental health care – no-one is arguing it is a good thing to do and yes, it causes knock-on problems because it means the location for subsequent detentions by the police under s136 MHA is closed to others. But that’s an easier problem to fix than the question of how to mitigate a suicide by ensuring an urgent admission under s2 MHA. These legal issues are approaching sixty-five years old because these laws first appeared in the Mental Health Act 1959. Eventually, we’re going to have to get to grips with them and design the system according to the law, rather than hoping to bend the law to the system and risk failing people.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2023
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 – www.legislation.gov.uk
Mental Health Cop 