Work around improving urgent and emergency access to mental health care has raised an issue about the legal frameworks available to prevent an informal patient attending A&E (whose behaviour is raising concerns about their mental health) from leaving before a mental health act assessment can be arranged.
Improving both safety and rights for informal mental health patients in A&E
The results of the coroner's hearing into Ricky Conner's suicide in Derby is a salutary reminder that A&E may not always be the 'safe place' we expect it to be. Ricky isn't the first informal mental health patient to have left A&E - Matt Groome's case from last year is another example.
So what can be done? Current work aimed at improving access to urgent mental health care (hosted by the National Centre for Collaboration in Mental Health) is drawing up national guidelines aimed at creating parity for people with a mental health crisis by setting the same 4 hour waiting times for assessment as already exists for physical health presentations. Whilst reduced waiting with help, I'm not convinced on its own that that is sufficient.
The practical and legal problems.
If someone is picked up by police and placed under s136 of the Mental Health Act, they can be taken to a place of safety and kept there until a Mental Health Act assessment can be sorted out. If someone is on a ward, either in a mental health unit or an acute hospital, and there are concerns about their mental health, s5 of the Mental Health Act can be used to stop them leaving until a Mental Health Act assessment can been completed. In both cases people are kept safe, and their rights are protected by the use of the Act (for example, there is no power to 'force' someone to take medication whilst on these short term sections - medication can only be given with informed consent, or if the patient lacks capacity, because it is in their best interests.)
However, if the person either comes to A&E informally, or is 'persuaded' to come by someone else, the legal frameworks to both protect them or stop them leaving are less certain.
At present, s5 of the Mental Health Act cannot be used, as the person is not formally 'admitted' to the hospital. Technically, it should be possible to ask the police to attend and use their powers under s136, but quite apart from the practicality of having a police constable available within a reasonable time span, you are likely to meet concerns from the police about whether A&E really is a 'public place', and possibly from the patient and their supporters about the 'criminalisation' of someone who just needs help.
If you have a bed in the acute hospital or a mental health unit, you might be able to use s4, but still need to have the right professionals (AMHP and doctor) available to complete the assessment - and is using an acute bed in this way really appropriate?
Finally, this leaves the use of the Mental Capacity Act. Whilst it is possible to use the MCA to prevent an adult without capacity from leaving in an urgent situation, it isn't always easy to apply the MCA to some mental health patients, it can take a great deal of skill to establish how a mental disorder is impacting on someone's decision making, and isn't always something professionals in A&E feel confident doing.
In addition, although s5 of the MCA does allow for 'restraint' to prevent harm to the patient, what about situations where the risks are mainly to others? Or where that 'restraint' needs to go on for some time, and there are concerns that the care that is needed amounts to a deprivation of the persons liberty? Last weekend police brought a man informally from his own home to my local A&E for assessment of his mental health. He had a forensic history, was clearly psychotic, and an assessment was arranged within an hour. He was clearly detainable, but given his history and presentation a picu bed was recommended, and that needed to be found in the private sector. The patient stayed in A&E over 20hrs, supported by security who kept him under 'continuous supervision, and control' and he was most definitely 'not free to leave.' But technically his legal status was that of an informal patient, and the care he needed was provide by virtue of the Mental Capacity Act. The question that troubles me is whether this is sufficient. Were that man's rights truly protected? And were the staff who prevented him leaving really protected by s5 of the Mental Capacity Act?
A case for change?
The development of guidance around improving access to urgent mental health care has led professionals to discuss and debate these different options, and also question whether the passage of the Police Bill through Parliament should be used to present a possible amendment, either to make it clear s136 should apply in A&Es, or to amend s5 to allow it to apply in A&E. But is this needed? Would a better understand of the MCA be sufficient?
A call for evidence.
In order to explore the issues further, I agreed to coordinate a call for evidence, to ask people from around the country to send information about cases where people had left A&E and they or others had come to harm. The purpose is to consider whether proper application of the current legal frameworks might have prevented that harm, or whether there really is a gap In the law that needs to be tackled. I have also asked some liaison teams to consider over the next 6-8 weeks how often situations occur where the use of s5 might have been helpful.
More information on the pros and cons of different legal options is available here
We are looking at whether what is currently available is understood and easy to use, or whether a change in the law (via the police bill currently in parliament) would be better.
We are asking for information about examples from the last 10/15 years, which resulted in serious harm/death and whether either better application of the current law or a change to the law might have prevented that harm from happening.
Please email firstname.lastname@example.org with details of any examples, and which legal pathway might (in your view) have been most likely to have prevented the 'harm' that resulted.