In light of the recent announcement by the Metropolitan Police about declining to attend emergency mental health calls unless there is an ‘immediate risk to life’ (IRTL), I thought a post on this topic would be helpful, because simple though the phrase sounds, it’s been subject to consideration in the UK’s highest court and probably deserves some explaining and untangling. To give an explanation, the legal phrase we need to bear in mind is an “immediate risk to life, present and continuing” – and it is the understanding of “immediate risk” which informs whether or not the UK state (and its public authorities) have obligations under Article 2 ECHR (the right to life) or Article 3 ECHR (the right not to suffer inhumane or degrading treatment).
In summary: this phrase means a little more than someone who is actively attempting to take their life now or at risk of accidentally ending their own life now. It is something more akin to a person being at significant or substantial risk of death any time from this point onwards, until somehow safeguarded. So where someone is at home and reported by their family to have ingested a large quantity of tablets, there will obviously be an immediate risk to life – without intervention they may well die or become seriously ill. Someone who left home to travel to a particular location to end their will also qualify, even if it is known with certainty it would take them some hours to get there and / or the mechanism to end life had not been attempted and wasn’t imminent. (We’ll discuss ‘immediate’ and ‘imminent’ very shortly because it’s important.) It may be we have no idea when someone will end their life, but we know it’s an ongoing risk that they will, so the duty may well exist in those circumstances – this was the Rabone case in the Supreme Court.
And let’s be realistic: you will not know such things with certainty, will you? We never do.
It’s finally worth noting: the risk to be considered here for this ECHR is normally considered to be risk of death and not ‘just’ of serious injury – but this is wrong and there are other things to consider where there is a risk of serious injury which we’ll come to at the end. It’s also worth pedants like me noting from the outset: there is a real difference between threat and risk and the debate here needs to be about risk, not threat.
Threat is about what may conceivably happen – risk is about its likelihood.
THE RABONE TEST
One of the legal cases to consider here is one I’ve covered on this blog before, albeit in summary form to make a slightly different point. Melanie Rabone died by suicide in Greater Manchester in April 2005. She had recently been admitted as a voluntary mental health inpatient following a suicide attempt and on 19th April the ward gave consent to be away from the unit despite her medical records suggesting she should be detained under the Mental Health Act 1983 if she tried to leave. She was then reported missing and high risk to the police who began a search and tragically, she was found deceased two days later.
Melanie’s family brought actions for negligence and violation of Article 2 against the NHS trust and it eventually ended up in the UK Supreme Court for resolution of points of law. The numbers in square brackets are the paragraph numbers of the judgment itself —
- Operational duty – originally, the High Court and the Court of Appeal stated there was no operational duty on the NHS trust to protect the right to life because Melanie was a voluntary a patient and the duty didn’t apply.
- Lord Dyson (giving the main ruling of the Supreme Court) disagreed and stated there was an operational duty on the trust because “the differences between the two categories of psychiatric patient [voluntary and detained] should not be exaggerated” and that these differences “would have been one of form, not substance.” [34]
- Real and immediate risk – having determined that there was an operational duty on the trust, it was then necessary to determine whether there was a ‘real and immediate risk to life’. Again, Lord Dyson ruled risk was “real and immediate” if there were a substantial or significant risk, not remote or fanciful [38]. It was argued in the hearing that for something to be “immediate”, it had to be imminent [39].
- He specifically dealt with this question and said “In my view, one must guard against the dangers of using other words to explain the meaning of an ordinary word like ‘immediate’. But I think the phrase “present and continuing” captures the essence of its meaning – the idea is to focus on a risk which is present at the time of the alleged breach of duty and not a risk that will arise at some time in the future.” [39].
This is where some of the question will lie about the RCRP scheme – will call handlers and frontline officers know and understand the distinction between ‘immediate’ and ‘imminent’? — I ask this, because I have seen this confused many times, not just in relation to mental health incidents but where, for example, there is a threat to kill someone. In other words, the fact someone’s death is not imminent does not mean this is not an immediate risk to life. Knowing now, for example, that someone is thought to be travelling 30-miles to kill someone else is still an immediate risk to life, even if it will realistically take them 30-minutes to arrive and it can’t be described as imminent. Just as equally, knowing that someone is ‘in the middle of nowhere’ and ‘going to jump off a bridge’ is an immediate risk to life, even if it can’t (yet?) be described as or known to be imminent.
So with mental health related demand it’s not whether there is an active, ongoing attempt to end one’s own life or an imminent risk it may happen accidentally, but a present and continuing risk that it could happen any time from now. The same would apply to an immediate risk to the life of other professional staff dealing with a mental health situation who may be wondering about police support. It’s worth bearing in mind: when doctors were asked to estimate a probability of suicide risk in Melanie Rabone’s case, it was given as 5-20% – so you might describe this as possible but not probable or you might wonder it’s more likely than not she would not die by suicide. But then remember the judgment: this is high risk and something amounting to an immediate risk to life, something which the Court of Appeal had previously accepted, despite its ruling the operational duty was not owed.
INJURY or SERIOUS INJURY
But what about risk of injury or serious injury where death is not likely or intention is absent?
We know that many mental health related calls to 999 (police and ambulance) involve someone causing injury to themselves or suggesting they will do so where the intended or probable outcome is not death, but where injury or serious injury is more likely. Well firstly, the obvious point to make about some deaths by self-injury is that Coroners often find insufficient evidence to return a conclusion of suicide because there can often be a complete absence of an intention to die. Many patients self-injure without intention to adduce a fatal outcome but sadly misjudge what they have done. It won’t always be obvious or clear whether someone’s intention is to end their life but intention is not the question.
It’s whether there is a real and immediate risk which matters — and don’t forget, if the risk to be managed is about the potential that other professional staff will be assaulted, there are broader police duties around the prevention of crime.
It’s also worth bearing in mind that someone who has previously self-injured and continues to do so, becomes increasingly likely to die accidentally by further self-injury. So the disgraceful old, pejorative adages “If you wanted to do it, you’d have done it by now” or “you wouldn’t have called if you meant you’d do it” are way off where we need to be thinking, in addition to being utterly inhumane. Risk of accidental death by self-injury rises the more people do it and that needs to be considered when thinking about whether the probability of serious injury could also amount to a significant possibility of ‘real and immediate risk to life’ by accidental death. Remember: Melanie was estimated to be at at 5-20% risk of suicide and the court found this was sufficient to be ‘substantial and significant’ even though such figures might cause us to think it’s not probable, just possible.
Either way: it’s enough.
LEGAL LANGUAGE
When discussing this stuff in coming months, please keep ever-present in mind ‘immediate’ and ‘imminent’ are not synonyms in this legal context – the thinking needs to be crystal clear and when I say the word ‘crystal’, I’m thinking Jack Nicholson / Tom Cruise in A Few Good Men. Absolutely no room for doubt — if a risk of suicide existed at a point in time when an operational duty was owed, there is an immediate risk to life.
It’s a distinction often mis-understood and it’s going to be of increasing importance to call handlers and frontline police officers (especially supervisors) if forces are telling partner agencies agreement to deploy to mental health emergencies will be predicated upon this distinction – we need to understand the distinction, quite obviously. That’s why I’ll be keen to see new policy developments on policing and mental health benefit from training which everyone was agreed was necessary when the Crisis Care Concordat (2014) was introduced, which the College of Policing produced (2016) and which His (then Her) Majesty’s Inspectorate of Constabulary found in Picking Up the Pieces (2018) had not been delivered, asking police forces to review their training provision on mental health by August 2019.
We need to understand how to draw this distinction amidst uncertainty about the information given: when family or friends are ringing 999 in admits serious concerns, they won’t always know someone’s intention, might not know the precise risk background involved and there will be ambiguity and confusion – but the operational duty will still exist if the information, ambiguous or confused as it may be still suggests an immediate risk to life.
Finally, it’s also important to remember the post I wrote a few months back about exaggerating risk – if deployment of the police depends upon an IRTL, police forces need to be alive to the fact that risk may be exaggerated to create a perception this threshold is met. I have had a number of mental health professionals tell me this is the chat in their office and you might ask yourself what could possibly go wrong with that, other than police forcing entry to premises believing there to be an ITTL, only to find out there wasn’t one? — but this phenomenon is not new and it now seems reasonable to wonder if it may become more frequent, for the obvious reasons made out above.
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
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