Monday, 23 April 2012

What is a Public Place?

I am currently working with a woman who recently had an unfortunate encounter with the Charwood Police. Joan is a single woman in her 50’s. She works as a self employed nail technician. She is good at her job and has a loyal clientele. She has had no previous history of mental disorder.

Joan was in her front garden one fine weekend Spring morning, gardening. Her sister was with her. Her sister was concerned about her mental state, as she had just finished with her boyfriend of several years, and her mood seemed to be very volatile. Her sister called the on-call doctor, who refused to come out, and suggested she call an ambulance, which she did.

Instead of the ambulance arriving, three male police officers suddenly entered Joan’s garden and, apparently without attempting to talk to Joan, wrestled her to the ground. They managed to break her leg in the process. They then detained her under Sec.136 and took her to A&E. She was subsequently assessed under the Mental Health Act, detained under Sec.2 and admitted to Bluebell Ward, in a cast.

I met Joan when she appealed against her detention and I was asked to provide a Tribunal Report. However, her Sec.2 was rescinded and she was discharged less than two weeks after admission. Since discharge, she has shown no signs of mental disorder.

When I heard about the circumstances of her detention I was very concerned, to say the least, about the legality of the Sec.136.

The MHA states (Sec.136(1)): “If a constable finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety.”

The Reference Guide to the Act (Ch 30.17) adds: “For these purposes, a “public place” can be taken to mean any place (whether indoors or outdoors) to which the public have access, whether by right, by explicit or implied permission, on payment, or otherwise.

Richard Jones, in the Mental Health Act Manual, observes that this “probably includes: public highway, public access if payment is made, eg a cinema, public access at certain times of the day, eg a public house.”

Is someone’s front garden a “public place” or “a place to which the public have access”? Although there is little Mental Health case law which examines this issue, there are a number of cases relating to other legislation in which this has been explored.

In the case of R v Edwards (1978) in the Court of Appeal, it was found that, as far as the Public Order Act 1936 was concerned “the fact that the public can obtain access to a private house as visitors through the front garden does not make the garden a public place”.

The Weightman’s legal website has an informative article examining this issue. In relation to someone’s front garden, they note:

“With regard to the front garden of a private house, for example, we know that it will only fit the bill if members of the public can enter it without invitation (R v Bogdal [2008] EWCA Crim 1); and that in the case of a very small garden, it won’t be sufficient that someone standing there could reach a pedestrian on an adjoining highway. (R v Leroy Lloyd Roberts [2003] EWCA Crim 2753) But we only know that because of cases decided under the Public Order Act 1936 (R v Edwards (1978) 67 Cr App R 228), the Criminal Justice Act 1988 and the Dangerous Dogs Act 1991.”

Based on these sources, then, it is reasonable to conclude that a front (or a back) garden does not constitute a public place within the meaning of Sec.136. The Police therefore acted unlawfully when they restrained Joan and then took her to a place of safety. Joan is taking legal action.

While I do think that the Police are generally trying to act in the best interests of individuals when they invoke Sec.136, the typical copper on the beat does not necessarily understand the legal niceties of Sec.136. One such example was reported in Wigan Today on 30th November 2011, the case of Ms Atkinson, who died in hospital from a punctured lung.

It was reported: “Police had been called… following reports of a woman acting aggressively to her partner. They found Ms Atkinson clearly distressed, screaming and waving her arms around. Because of her behaviour, police decided to section her under the Mental Health Act for her own safety and took her to hospital for help.”

One of the officers during cross examination during the inquest stated: “After we detained Ms Atkinson and put her in the back of the van, PC Allen asked me to contact Leigh Infirmary and told me he'd detained her under Section 136 of the Mental Health Act. I hadn't really thought about what powers we had to detain her, I just wanted to do the right thing and get her to hospital as quickly as possible."

I’m sure that these officers were just trying to do “the right thing”. I’ve assessed many people in police custody over the years, sometimes detained under Sec.136, and sometimes under arrest for a public order offence. At times it seems it was the custody sergeant who decided under which power the officers involved had brought them to the police station on their arrival.

However, using Sec.136 when the mentally disordered person is not in a public place can cause more problems than it might solve. One such case is featured in a piece of Mental Health case law known as R (Sessay) v South London and Maudsley NHS Foundation Trust (2011) EWHC 2617 (QB).

In this case, the police attended the home of a woman after concerns about her mental health were raised. They removed her from her accommodation and eventually brought her to a hospital where the police officers completed and handed in a document which they called a “Sec.5-6 MCA 2005 Form” which stated the basis upon which they considered the Claimant to lack capacity and upon which they had therefore used their “powers” under the MCA 2005 to bring her to hospital. The hospital rightly concluded that this had no legal authority, and told the woman that she was being detained under Sec.136. She was eventually detained under Sec.2.

The Mental Capacity Act 2005 does not give anyone powers to remove a person from their home and forcibly take them to hospital. Once in a hospital, Sec.136 cannot be invoked because it is not a public place. As Richard Jones observes “an A& E dept waiting area is a public place, but a hospital ward is not, as it is a place to which only particular members of the public can attend at the request of the patient and with the permission of the hospital managers”.

The police could not of course have used Sec.136 to remove this woman, as she was in her own home, again not a “public place”.

The Court found, among other things, that her rights under Article 5 of the European Convention of Human Rights were infringed. It also stated that Sec.135 and Sec.136 were the exclusive powers available to police officers to remove persons to a place of safety, and that the hospital unlawfully detained her.

Incidentally, I believe all this may answer the query posed by Rosemary Cantwell, a blog reader, who posted in the comments to my last post, Conveyance of Mentally Disordered Patients to Hospital, the following question: “Is it necessary to obtain Sec.136 to remove forcibly a person from hospital to a place of safety who is not under Sec.2 or Sec.3?”

I do not know whether Ms Cantwell is referring to an actual case or a hypothetical situation. Either way, it is clear that a hospital ward cannot be considered to be “a place to which the public have access”, and Sec.136 could not therefore be used to remove an inpatient, or anyone else, from that place. However, if by “hospital” Ms Cantwell means a hospital reception area or A&E department, then Sec.136 could be used.

Sunday, 15 April 2012

Conveyance of Mentally Disordered Patients to Hospital

An essential part of the role of the Approved Mental Health Professional is to ensure that the person they have just assessed is admitted to hospital. Having made a decision that someone needs to be admitted, whether informally or under a section of the MHA, the next step has to be to make suitable arrangements for “conveyance”, as the Act likes to call it.

However, the physical act of getting a patient to hospital once an AMHP has assessed them can be fraught with legal, ethical, logistical and practical difficulties.

The Reference Guide (para2.66) states: “A duly completed application for admission provides the authority for the applicant, or anyone authorised by the applicant [the AMHP], to take and convey the patient to the hospital named in the application”. It goes on to say (para 2.68): “Patients being taken and conveyed to hospital on the basis of an application for admission are considered to be in legal custody, and the applicant, or the person authorised by the applicant (as the case may be), may take steps accordingly to prevent the patient absconding.”

This clearly places the AMHP in a position of considerable power (and responsibility). The AMHP is responsible for ensuring that the patient reaches hospital safely, and can exert, or instruct others to exert, proportionate force or restraint if necessary. In the words of the Code of Practice (para 11.14) “Where AMHPs are the applicant, they have a professional responsibility to ensure that all the necessary arrangements are made for the patient to be conveyed to hospital.”

The Code of Practice devotes a whole chapter (Chapter 11) to “Conveyance of patients”. This chapter begins: “Patients should always be conveyed in the manner which is most likely to preserve their dignity and privacy consistent with managing any risk to their health and safety or to other people.”

Local Authorities have guidance for AMHP’s on how to convey to hospital. This guidance frequently states that all patients should ideally be transported by ambulance, although where the patient is likely to be aggressive or unpredictable, the police can be enlisted to arrange transport.

While there may be sound reasons for using an ambulance to transport a patient, the Code of Practice does not actually prescribe this. What the Code actually says is: “AMHPs should make decisions on which method of transport to use in consultation with the other professionals involved, the patient and (as appropriate) their carer, family or other supporters. The decision should be made following a risk assessment carried out on the basis of the best available information.” (para 11.16)

Factors to be taken into account include availability, distance to be travelled, the physical and mental state of the patient, the patient’s wishes, the views and wishes of the relatives, the risk of absconding or violence, and “the impact that any particular method of conveying the patient will have on the patient’s relationship with the community to which they will return”.

All this means that an ambulance may not always be the most appropriate means of transport. The CoP, para 11.21 notes: “AMHPs should not normally agree to a patient being conveyed by car unless satisfied that it would not put the patient or other people at risk of harm and that it is the most appropriate way of transporting the patient. In these circumstances there should be an escort for the patient other than the driver.”

While I would stress that all AMHP’s have to make their own decisions based on the particular circumstances of the patient, regular readers of this blog will be aware that there have been occasions when I have made a professional decision to transport the patient in my car.

Something I often find quite effective, providing I am confident that the patient is not likely to be aggressive, is to give the patient an element of choice, so that they do not feel completely overpowered by the process they have endured.

Once the decision has been made to detain the person, and the paperwork has been duly completed, I will of course inform them of the decision and of their rights to appeal against that decision. At that point, it is likely that they will continue to object, saying that they do not want to go to hospital. I will then tell them that admission is unavoidable, but that they have a choice between going in an ambulance or being taken to hospital by car.

If they choose to go by car, then I ensure that I have at least one escort with me, such as a relative, a professional colleague or an AMHP trainee, and arrange for the patient to sit in the back seat, directly behind the front passenger seat, with the escort sitting next to them.

Of course, if they decide against either choice, then they will go by ambulance. A detained patient will always end up in hospital – even if they abscond while waiting for transport to arrive.

Frequently, the patient will steadfastly maintain that they will not be taken to hospital under any circumstances. They often argue this right up until the moment when the ambulance crew enter the house – at which point they quietly pick up their overnight bag and step into the ambulance. I suppose that there is a part of them that either realises that admission is inevitable, or that recognise that it is really in their interests to be admitted.

I have said before on this blog that the arrival of someone in a uniform, whether it be a police officer or a paramedic, often seems to have a miraculous effect on a patient’s resolve and cooperation.

Where the patient still refuses to get into the ambulance, it is almost always the case that a few minutes persuasion (sometimes half an hour or more of repeating that it is unavoidable) will result in them stepping into the transport.

Sometimes the AMHP simply absenting oneself from the immediate vicinity allows the ambulance crew to assist the patient into the ambulance.

On rare occasions it may be necessary to enlist the assistance of the police. In my experience, in less than five per cent of cases does it become necessary to use any significant force to get the patient into the transport.

Having made a decision that an ambulance or police transport is required, this is far from the end of the process. AMHP’s will be very familiar with the difficulties that can arise from using the police or the ambulance service.

There are two problems that can occur at this point. One is the potential conflict between the Act’s guidance on conveyance to hospital and the Local Authority’s guidance on conveyance on the one hand, and the police and ambulance service guidelines on the other.

In practice, this means that police may be reluctant to attend in the first place, and even more reluctant to provide police transport or police assistance with transport.

The ambulance service may also be reluctant to transport a patient who has even a history of aggression, never mind be presenting as resistant on assessment.

AMHP’s can also often be frustrated by the ambulance service on the one hand insisting that police be present when risk has been identified before they will agree to attend, and the police on the other hand being reluctant to attend until the ambulance arrives. This can create logistical nightmares; some of my AMHP colleagues have found that trying to coordinate the simultaneous attendance of both the police and an ambulance can lead to many hours of delay, especially if shift changes are involved.

And if the patient has to be taken to a hospital many miles away – well, there have been times when I’ve had to wait 4-6 hours before transport has been sorted.

The other problem is the priority given to MHA admissions by ambulance services. Our local service typically gives two hours as the expected time of arrival, and even though an AMHP may regard it as of urgent necessity for a disturbed and distressed mental health patient to be admitted to hospital, the ambulance service does not give it the same priority, and ambulances on their way to the AMHP can often be diverted to what are considered more high priority calls.

Our local ambulance service has a cunning ruse to meet their targets for delays by often sending a single paramedic in a car, who then makes the assessment (surprise, surprise) that it is unsafe to transport the patient, and insisting on an ambulance with two crew – which is what you asked for and expected in the first place.

Among my AMHP colleagues, delays involving ambulances are one of the major problems encountered in discharging their duties, to such an extent that such delays are monitored.

All of which can make it very tempting for an AMHP to decide to take the patient to hospital themselves.

Wednesday, 4 April 2012

More Criminal Mental Health Acts

1. Assisting a detained patient to escape from hospital
I last posted on criminal offences created by the Mental Health Act on 15th January 2012. Since then, the case of Rebecca Martin has now reached a conclusion.

This case appears to be a prosecution under Sec.128. Sec.128 makes it an offence to assist a detained patient “to absent himself without leave”. The maximum penalty is 2 years imprisonment and/or an unlimited fine.

Rebecca Martin was a care assistant in a secure hospital for patients with learning difficulties and challenging behaviour in Suffolk. She developed a relationship with one of the detained patients, Luke Sparks, and helped him to escape from the hospital. He attacked a member of staff with a fire extinguisher and obtained the keys, while Martin waited outside in a car. Once free, she drove him to the Bristol area, where they were both arrested a couple of days later.

At Ipswich Crown Court on 29th March 2012 Martin was sentenced to 18 months imprisonment. It is reported that the Judge “described her as ‘na├»ve’ and said she had thought she was in love with Sparks and that he was in love with her. He said she was guilty of a serious breach of trust and had potentially endangered the lives of other people by helping Sparks to escape.”

2. Mental Health Professionals and Sexual Misconduct
Prosecutions like this are rare, although it is less rare for professionals and care workers to develop infatuations with service users. This appears to be equally common among both male and female professionals, although the reasons behind these inappropriate relationships appear quite different.

I have been reading a selection of disciplinary hearings reported on the GSCC website (the soon to be abolished General Social Care Council is responsible for registering social workers). It would appear from these cases that male social workers who engage in unprofessional sexual contact with female service users tend to be overtly exploitative. One male social worker, for example, threatened to section a female service user if she did not cooperate with him.

Female professionals, however, seem to become embroiled in intense, although ill-advised, emotional relationships which they perhaps see as nurturing rather than predominantly sexual or exploitative in nature.

One such example is that of Stephenie Reeves. In February 2008 she appeared in Preston Crown Court and was found guilty of “engaging in sexual activity with a person who had a mental disorder”. She was a psychologist working in a secure unit near Preston when she developed an inappropriate relationship with a 20 year old detained male patient which resulted in her pregnancy.

It was reported that she was “due to give birth next month to the inmate's baby, and the pair plan to resume their relationship when he is released from hospital”.

The Judge stated: "This involves a grave breach of trust on your part… You breached that trust by first of all allowing an emotional relationship to develop that was wholly inappropriate… Such a breach would usually invite a custodial sentence but, because of the extremely unusual circumstances, I feel able to depart from sentencing guidelines… It is not a case of you taking advantage of his mental disabilities for your sexual prevarication. You were not a predator.'' She was given a suspended sentence of 12 months.

2. Approved or not? Does it really matter?
Mark Francis was a social worker who fell foul of S.114 MHA. S.114 relates to the approval of mental health professionals to discharge the duties of the AMHP (and before that, the ASW). AMHP’s (and before 2008, ASW’s) can only exercise the powers under the Act to detain patients if they have been duly approved by the local authority. Additionally, since 2005, social workers have to be registered by the GSCC in order to practice as social workers.

Mark Francis was a very experienced social worker who qualified in 1984 and had practiced as an ASW from the mid 1980’s onwards. When it became a requirement to be registered by the GSCC in 2005, Mark Francis omitted to do so. However, he continued to practice as a local authority social worker, and as an ASW.

His employers initiated disciplinary proceedings, and he was given a final written warning for failing to register with the GSCC and working as an ASW when not registered, both being classified as gross misconduct.

Francis then belatedly applied to the GSCC to be registered, but his application was refused. He consequently appealed to the First Tier Tribunal (First Tier Tribunal, [2010] UKFTT 434 (HESC), 21 September 2010), which heard his case in September 2010. His appeal was dismissed.

Francis’s case may appear to be little more than that of a lone professional who somehow lost his way. However, the implications of his professional omissions are potentially very far reaching.

During the time he was practicing as an ASW, but without being registered with the GSCC, and therefore not being “approved”, any actions he took in exercising the powers of an ASW would have been legally invalid. Any application under the Mental Health Act would have been illegal. Therefore, any detention that arose as a result of his actions as an ASW, regardless of the merits of any individual case, would have amounted to unlawful imprisonment.

How many people did this apply to? It is not known. But such situations, while hopefully rare, as most AMHP’s are very conscious of the law and their role within it, are not unique. A firm of solicitors (O’Donnells) issued the following statement in February 2012:

We are receiving substantial numbers of instructions from clients seeking clarification over whether their detentions over the last four years have been lawful. Applications made by one particular AMHP were unlawful as that person’s registration had expired.

It follows that, if an original section 3 was invalid, then subsequent renewals and any following CTO, will have been invalid also…We strongly suggest that anyone who believes they have been affected should seek legal advice as soon as possible as those who have been unlawfully detained or placed on a CTO may be entitled to compensation.”

The problem is – how is someone who has been detained under the MHA to know whether the AMHP who made their application was practicing legally or not?

The Code of Practice (4.50) states “AMHPs should identify themselves to the person being assessed, members of the person’s family, carers or friends and the other professionals present... They should carry documents with them at all times which identify them as AMHPs and which specify both the LSSA which approved them and the LSSA on whose behalf they are acting.”

I, and I assume all other AMHP’s, have an ID card issued by the Local Authority who approved me. It has a picture of me, my name, and a statement that I am authorised to act as an “Approved Mental Health Professional”. It also has the date my current approval period started, and the date it expires. I display it in a prominent position whenever I am conducting duties under the MHA.

However, it is very rare for anyone I am assessing to look closely at my warrant. And would they know what it meant in any case?

And unless they were old hands at this sectioning lark, how would they know about the instructions in the Code of Practice, and how would they know about the role and requirements of the AMHP, unless the AMHP told them?

The lessons of this are clear: if you think that at some time you may find yourself on the receiving end of an assessment under the MHA, then you should acquaint yourself with the Mental Health Act 1983, the Reference Guide to the Act, and the Code of Practice. Or read this blog.