“Dump and run” is a phrase I’ve heard dozens of times in recent weeks – at a healthcare security conference, at an AMHP CPD event where I presented and in a number of professional discussions with healthcare professionals from ED, ambulance or mental health. Whatever else it might mean, in this post it refers to the practice of police officers attending Emergency Departments with people they are aiming to help and leaving them there in the care of NHS staff without full consideration or consent.
You can think of this post from two angles –
- Considerations for police officers who are removing someone to ED.
- Considerations for healthcare staff, esp security, where someone has been left there by the police.
It covers two specific legal situations which we’ll address one at a time after some general points about a legal duty of care and the purpose of the post is twofold: to ensure frontline police officers don’t drop in the proverbial soup; and to ensure NHS staff – esp security staff – understand the legal position which emerges for them from various decisions police officers may take, whether or not that’s under direction from their force.
By referring to “soup”, I’m thinking of a number of inquests where, somewhat inevitably, promises were made that lessons would be learned.
DUTY OF CARE
First things first: where the police have encountered someone they have agreed to assist, especially in circumstances where that person is or may be vulnerable, they may well have a legal duty of care they have to discharge. This will be true where the police are assisting someone who lacks capacity to take decisions to keep themselves safe and where it involves unaccompanied children. It will also be true where the police have decided to exercise legal powers of arrest or detention or where they have started implying (or even threatening) use of those powers to “promote cooperation”.
Regular readers will remember the case of Webley v St George’s Hospital and the Police Commissioner of the Metropolis (2014) where the family of a man sued the NHS and police. The patient in that case had been arrested for an offence and ‘sectioned’ in police custody.
Whilst being transported to a mental health unit by police and ambulance, he appeared to have a seizure and they diverted to St George’s Emergency Department. In legal terms, he was at that point being taken and conveyed under s6 MHA to the hospital where he would have become a s2 MHA patient on arrival – but he didn’t arrive at that hospital, he was taken elsewhere.
COOPERATION AND CONSENT
In ED, the police negotiated with NHS staff to take over responsibility for him, officers having been due to undertake a short journey to a mental health unit, they did not want to be detained in ED for hours or more. The NHS agreed they would take over, police shared background and risk information and allowed time for them to get their security in place. The police having left the ED, the man left the department and fell from a height, suffering life-altering injury. Long story made short: the NHS were liable (having taken on the duty of care) and the police were not (having only left after another organisation took on that duty of care).
The court ruling simply did not address the question of whether it was lawful for the police to decide to leave someone in the ED’s legal care, bearing in mind s6 MHA authority belongs to the AMHP who made the patient’s hospital application and the MHA is silent on the question of whether the person to whom that authority is delegated (police) can further delegate (to ED) without reference to the AMHP who really should have been contacted again, in my view.
But we could look at other incidents: like the decision by the Metropolitan Police to leave Nicola Edgington in an ED after she presented herself to a taxi-rank saying she needed help and wanted to kill someone. Officers there did not use s136 MHA, assisted Nicola on a voluntary basis to ED and left her there. She was then seen, assessed and admitted to a mental health unit on the same hospital campus from where she quickly absented herself and killed someone before attempting to kill someone else. The inquest found no fault in the police decision to leave, the Met having also taken steps in that case to ensure the NHS were satisfied they could handle the situation.
What does this all mean for so-called “dump and run” situations?
VOLUNTARY ASSISTANCE
Nothing prevents the police assisting someone on a voluntary basis to attend an Emergency Department for help, including for help with mental health related problems, and I’ve written about this before at the request of a mental health professional. That having been said, we’ve known for many years it is a complex set of considerations and it isn’t well covered in police training or local joint protocols between police and healthcare providers. The caricature offered in recent weeks has included reference to officers bringing people in to ED on a “voluntary” basis in handcuffs or even leg restraints which immediately borders on to the absurd – in mental health law and care, “voluntary” does mean the exercise of a genuinely free decision.
I’ve written elsewhere about voluntary assistance to emergency departments. Inquests have had to examine situations where officers undertook this approach, only for their to be serious consequences after they left. The death of Mr Anthony Preston in Essex in 2021 was one such example: he had been countered in a suicidal condition in his own home (and therefore could not be detained under s136 MHA) but having been left in ED, he somewhat predictably left the department and was found deceased so you might imagine, review for lessons learned might be focussed on how that could or should have been handled differently.
In different circumstances, the tragedy of Michael and Marjorie Cawdery in Portadown in 2017 showed us the risks of police officers failing to use powers like s136 MHA (or article 129 MHO, in Northern Ireland) to detain someone for assessment admists obvious risk. The Police Service of Northern Ireland more than once left Thomas McEntee in northern Irish EDs, only for him to leave shortly afterwards. On the final occasion, he then broke in to the home of a retired couple in Portadown and killed them when they came home from shopping.
So cops need to think carefully about risk, powers, whether the duty of care is discharged by leaving and how they would explain the decision to leave if subsequent events unfolded very badly – could you go through the Webley criteria and tick them all off as satisfied?
SECTION 136
During the introduction of Right Care, Right Person, we started hearing some forces talking about a “Webley Handover“. This was a short process to create an audit trail around these things – it’s again worth pointing out, when it comes to arguments about what was said and done, or what was or was not agreed, there have been arguments in Coroner’s courts and a piece of paper recording decisions goes a long way to resolving this, obviously and that has been a feature of other police-ED inquests.
But there is a risk with that, too:
It creates the opportunity for police officers to show that NHS did accept responsibility and agree the police could leave; but it also now creates the situation where if NHS staff decline to agree, the police will have difficulty leaving without risk of liability and we should remember:
Where s136 MHA has been used to remove someone to ED, the original RCRP agreement in Humberside was that officers would only seek to leave people removed to mental health units – it wouldn’t apply in ED at all and wouldn’t engage the concern of healthcare security. It must also be remembered that in any setting to which someone has been removed, nothing in law obliges anyone else to accept delegated responsibility for a patient, even where there is an agreement in principle between organisations to do so.
IF I WERE A POLICE OFFICER
If I were a police officer, I’d want to know in writing what my force expected from me when I arrive at ED in each of these two legal circumstances – how do I approach the question of whether to leave or stay with someone I’ve assisted to ED in “voluntary circumstances” and I’d want to make sure I’d truly understand “voluntary”.
- If I’ve had to threaten someone to ED – it’s not voluntary.
- Things like “If you won’t agree to come to ED, I’ll have to detain you under s136 MHA”. This is making it obvious, the person does not have an option not to go – they’re either going subject to the threat of detention or they’re going there under detention but either way: they’re going! It’s not voluntary.
- If I’ve had to use force on someone – it’s not voluntary.
- People who truly are consenting (with capacity to do so) will not need to be forced to do something they want to do. If force is necessary, whether that be manual handling, handcuffs or leg restraints, then it’s not truly voluntary and you might want to revisit the question in the first bullet point.
- If I’ve had to use a legal power to get someone to ED – it’s not voluntary.
- This remains true even if the particular power used can lead legitimately to “de-arrest” for things like a Breach of the Peace or arrest. Any use of section 136 MHA needs to be communicated to ED staff so legal requirements after its use can be fulfilled.
Voluntary means – the person exercised a free choice to go to ED where you would have respected their right to decline and left it at that. You also need to be careful to distinguish between consenting and not objecting – police bring power dynamics to almost all situations and uniformed agents of the state indicating someone “should go to ED” may not lead to refusal and resistance but whether it is informed consent or mere acquiescence is another question entirely.
IF I WERE NHS STAFF
The NHS will have a number of clinical, security and other staff who may need to think about police attendance in ED with a vulnerable person. Triage nurses and security are two obvious ones, but receptionists may face this too, as officers sometimes (Nicola Edgington) speak to them rather than clinical or security staff.
I’d want to make sure the department had a policy or protocol around this and that I’d read it and if none existed I’d ask my line manager for written instructions on how to approach things. You might imagine a number of questions would be important –
- If the police bring in someone on a voluntary basis, who is the appropriate person to liaise with the officers to discuss what will happen next?
- To whom do I refer questions (or concerns) if I’m worried the patient is not truly voluntary, either because I worry about their capacity to consent or because of the use of legal powers, restraints or implied coercion (like threats of detention to achieve agreement)?
- If the Emergency Department is agreeing to take on the duty of care (whether voluntary or detained under s136 MHA), what are the expectations and my powers.
The final questions is easy, but you’d want your organisation to accept the point, because some don’t – where someone is removed to a location under s136(1) MHA by the police, s136(2) can be relied upon by those who are a party to operating the Place of Safety to keep the person safe. But remember the Webley criteria: this must mean ED accepting responsibility after having been briefed on the background circumstances, relevant risk information and having had time to arrange themselves for it.
The objective with all of this: is we should never have a situation of “dump and run” – either people have truly agreed to be assisted by the police or they haven’t; either they are legally detained or they aren’t and amidst all of it, considerations around whether the police have or whether the NHS could or should win a duty of care to ensure safety will emerge.
It’s complicated and governance of this issue is not wonderful anywhere I’m aware of: so don’t pretend it isn’t and communicate clearly and effectively across the professions involved.
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, 2024
I am not a police officer.
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 