I’m going to tell you a story – and it really is a story. It’s a composite of events, hypothetical answers to questions I’ve been asked in Coroner’s courts, questions posed when delivering training and following discussion on social media. It concerns the common-enough situation of someone encountered in a private premises when time may be of the essence securing their safety, using whatever legal powers might be available from whoever might happen to have them.
One Thursday evening, a call is received to the ambulance service from a concerned mother in her 50s. Her adult son, aged 24yrs has lived with serious mental illness for many years and still lives with her at home. In recent weeks, he’s stopped taking anti-psychotic medication for schizophrenia and concerns have been mounting. In the past, when acutely mentally unwell, he’s made attempts on his life and he’s also been violent towards her and to professionals responding to him. She’s been trying to contact the community mental health team all week and hasn’t yet received a response from them, but all day, he’s been pacing the house, mumbling and in constant possession of a knive from the kitchen. She’s seriously concerned he may harm himself or someone else and worried that this may involve use of the knife. As things stand, he’s in his bedroom at the property and not causing an immediate safety problem, but she’s become so concerned she’s rung 999 for the ambulance service because she thinks something needs to happen tonight to keep him safe and she doesn’t know what else to do out of hours.
The ambulance service has rung the police service, mainly because of their concern about the knife and the history of violence. The police call handler has to decide whether officers should be deployed in support of paramedics and this involves them taking advice from someone in the force with greater knowledge around mental health law. The legal analysis is that no offence has been committed and there is no imminent risk of violence, but there are concerns there could be a Breach of the Peace if paramedics attend. There is no power to intervene in the situation under the Mental Health Act 1983 or the Mental Capacity Act 2005.
EMERGENCY RESPONSE
First things first — should there be an emergency response from ambulance and police services? On the one hand, if there is a response and the police are part of it, then their presence may immediately ensure a lid if kept on the situation and if anything unexpected should occur, the officers deployed are trained and equipped to deal with it.
Second things second — what will they actually do when they get there? Imagine our two situations in the paragraph above: if the situation immediately escalates, officers can act to prevent crime, prevent a Breach of the Peace and although far from ideal, there is, at least, the backstop of being able to use force to prevent harm or to make an arrest to prevent a Breach of the Peace, etc.. However, if that escalation does not occur, we now have a vulnerable man, where there may be legitimate concerns about his safety and his intentions if the emergency services left the situation and they have no powers between them to safeguard him. So going there is also problematic, in that those present may end up responsible, yet powerless for a situation they cannot control.
Should contact be made with MH services before attending? – almost certainly, yes.
If nothing else, this may yield background information or their willingness to become involved if this is a known patient. That said, nurse-led services like a crisis team or community mental health team have no legal powers either, so their involvement may be around helping to ensure an Approved Mental Health Professional convenes a MHA assessment for admission and that may still take time. We know AMHPs can struggle to secure doctors’ involvement in assessments on occasion and the NHS is not always able to offer up a bed in to which a patient may be admitted in a timely way. The Coroners’ courts are replete with examples of bed-related suicides, where patients may have been protected had they been admitted when it was first thought necessary.
URGENT APPLICATION
Under section 4 of the Mental Health Act 1983, an AMHP may make an application to a hospital with the medical recommendation of only one doctor – and this doctor does not necessarily have to be ‘section 12 approved’ (ie, authorised to take particular decisions under the Act). Any doctor can provide a medical recommendation for s4 admission. But this doesn’t get around the ‘bed’ problem, does it? … well, what if that didn’t immediately matter?!
Most health-based Places of Safety exist in mental health hospitals which are inpatient for facilities for those detained under the MHA. Applications for admission, made by the AMHP, are made not to specific beds or even wards, but to the hospital as a whole. So imagine there is an urgent need to act, as per our composite situation above, and that a doctor is available. What would prevent an AMHP making an urgent application under s4 MHA to a hospital which has a health-based Place of Safety and admitting the person to that location to mitigate the urgent risk?
Well two things: it’s not just about the willingness of the AMHP to do this (and if you’re an AMHP, don’t write in – the post is motivated in part by discussion with an AMHP who *has* done this). It’s also about the willingness of the NHS hospital to accept that person in to their Place of Safety under these legal circumstances.
Before I go any further, it’s important to acknowledge the point: this is not ideal, it’s not best practice mental health care and it’s not something to be done unless you’re pretty much out of viable options and facing an ‘immediate risk to life’ situation where a failure to do something lawful to mitigate that immediate risk would amount to an Article 2 ECHR violation. But assuming such a situation has emerged, what precisely in law would prevent this? – I submit nothing would, subject to the criteria in s4 itself being satisfied (because it requires a little more than application under s2 MHA, for example).
COULD versus SHOULD
This question has emerged in inquests — we have seen a number of inquests (like that of Michael Thompson, Nigel Abbott and Heather Findlay) where coroners have posed hypothetical questions about what the police could have done, if called to a situation in which they actually weren’t precisely involved. In one, I’m aware the question was about police powers to act in private premises, like in our situation and a response was given about the potential for s4 application to the Place of Safety. As it was being given, an AMHP from the local service was shaking their head, presumably in disagreement. Whether this implied it wasn’t legal or merely wasn’t likely in practice, I couldn’t say.
Of course it has other implications, it means the Place of Safety is then not available for those of us detained under s136 or s135 MHA, but there are other options for such situations where the PoS is not available. This kind of thing doesn’t happen very often – in fact, it would be extremely rare – so it would also confuse the live out of lots of professionals. It then means, the s4 MHA patient in the PoS would need to be seen by a second doctor and within 72hrs a “proper” bed available, either there or elsewhere.
However, I remain convinced that it would be legal and could be possible, however far from ideal it would be in practice and the point remains: if you’re not going to do this when you have an Article 2 “immediate risk to life” scenario in front of you, what are you going to do given the operational duty which exists on public authorities like AMHP services, NHS and the police, to mitigate the risk faced by person in accordance with domestic law?
Doing nothing is not a defendable option, in law – so it’s something to think about because you can make your own informed guess as to why I chose to write this post.
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, 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 