Wednesday, 6 April 2016

Sinking into a Legal Quagmire

I was on AMHP duty recently when I received a request for an urgent assessment under the Mental Health Act. It had come from the local criminal justice liaison nurse, who was ringing from the patient’s flat.

This in itself was very unusual. Criminal justice liaison nurses usually only assess people who are in police custody or in court.

The circumstances were as follows. Every year, the local housing association has to make a gas safety check of all their properties. One particular tenant, a man in his late 60’s who lived in a ground floor flat, had ignored all their letters and calls, and was refusing entry.

Eventually the housing association had obtained a warrant from a magistrate to enter the premises in order to check the gas supply. Two officials from the housing association had then attended the man’s flat with police officers, a locksmith and a gas engineer.

Despite the police attempting to gain entry without force, the tenant refused to open the door. At this point, the locksmith was employed to drill the lock and entry was then obtained. The tenant objected strenuously to what was happening, and the police, noticing a knife on a table near to the tenant, and fearing an incident, had then restrained and handcuffed him.

The behaviour of the person, and the condition of the property, gave the police cause to believe that he might be mentally disordered, and they then asked the liaison nurse to assess, which he did. As he thought that the person was acutely psychotic, and needed to be assessed with a view to admission to hospital for assessment, he contacted me.

There was indeed a degree of urgency. There were four police at the flat, the man was being held in handcuffs, and something needed to be done as soon as possible to resolve the situation one way or another.

I managed to obtain some background information on the patient from case records before I took any further action.

He was called Alfred and was 69 years old. He was a highly educated man, who had graduated with a first in English from Cambridge University in the 1960’s, and had gone on to teach English literature in a private school for a number of years.

Sometime in the 1980’s he had been admitted to psychiatric hospital under Sec.2 and had remained in hospital under Sec.3 MHA for several months. He had received a diagnosis of paranoid schizophrenia.

He never returned to work, and indeed disappeared from view for over a decade, when he was found by police sleeping rough, and was detained under Sec.136. He had again ended up in hospital under Sec.3, and was discharged to the housing association flat in around 2000, at which point he was receiving a regular antipsychotic depot injection. The records showed that after about 5 years it was decided to reduce and then withdraw the depot, and he was eventually discharged from Sec.117 aftercare and from secondary mental health services.

So although he had a long history of psychiatric disorder, he had not had any involvement with mental health services for nearly 10 years.

I quickly managed to obtain two Sec.12 doctors and within two hours of receiving the call we were all at the flat.

We were told by the housing association staff and the police that Alfred had been expressing extreme racist views about both the police and the housing association staff. He had used a range of racially abusive epithets, which was in itself slightly odd, as all the police and the staff were white British, as was Alfred.

We were told that Alfred appeared to be paranoid about infiltration and contamination. He had screwed closed the gas meter box, had sealed all the ventilation ducts in the flat, and had placed wooden shutters over the inside of the windows.

We went into the hallway of the flat. The flat itself was crammed with cardboard boxes. The living room was lined to the ceiling with bulging cardboard boxes, leaving little room for the dilapidated armchair and a coffee table. The bedroom was so full of boxes that there was only room for his single bed.

One of the police ushered me into his kitchen.

“Look at this,” he said, kneeling down and shining his torch through the glass door of Alfred’s washing machine. The washing machine was half full of water. Floating in the water were several large, dead fish. They looked like mackerel, or possibly herring. This added to the overall sense of unreality.

Alfred himself was sitting on the bed. He was in handcuffs, and a police officer was crouching in front of him clutching the handcuffs to prevent him from struggling. There was not enough room for the doctors and I to enter the bedroom, and we therefore had to attempt to interview him from the hallway.

It all felt very unsatisfactory. I was not sure this constituted assessing “in a suitable manner”. I did not feel in control of the situation.

Alfred unsurprisingly did not cooperate with the assessment. He harangued and swore at us, accusing us of being part of a conspiracy by the Muslims to convert him to Islam so that he could be used as a suicide bomber. He did not believe we were police, or doctors, or an AMHP. Instead, he appeared to be convinced that we were spies, intent on stealing his home and shipping him off to Syria through extraordinary rendition.

He was not making much sense.

The doctors and I, despite our disquiet at the circumstances of the assessment, concluded that Alfred had had a relapse of his paranoid schizophrenia, and was acutely unwell, and that he needed to be admitted to hospital for assessment of his mental state. The doctors gave me a joint medical recommendation for Sec.2 MHA.

At that point, things started to get worse.

In an ideal world, I would have completed an application for detention under Sec.2, the police would have accompanied Alfred to hospital, and Alfred’s flat could have been made secure.

But we are not in an ideal world, dear reader.

I rang the bed manager, who told me that there were no beds anywhere in the Trust. They would look elsewhere in the country, but it was going to take time, and it would probably be in a private hospital. And they would require me to fax through to them a full risk assessment, because private hospitals would not consider anyone without a full risk assessment. The bed managers appeared to be oblivious to the difficult and untenable situation, and the pressing need in the circumstances for the patient to be taken to a hospital.

I explained this to the police. They said they would stay there for now, but they were obviously unhappy that the patient was in handcuffs. But then they had taken that action in the first place, and had then called me.

So I went back to the AMHP office to write a risk assessment.

And had some space to think about the full implications of the whole thing.

And started to worry.

In the heat of the moment, and at the behest of the police and the forensic liaison nurse, I had gone out to assess someone in their own home without fully considering the legal status of the request.

The warrant the housing association had obtained was under Sec.2 of the Environmental Protection Act 1990. This is specifically for the purpose of servicing or maintaining a gas appliance. Did that give me the power to enter his flat in order to assess him under the Mental Health Act, even at the request of the police? I wasn’t at all sure that it did.

And now I had assessed him, I was powerless to make it even a little bit legal by completing an application and therefore making him “liable to be detained”. This would have then given the police, or an ambulance crew, the power to convey him to a hospital.

In the meantime, Alfred couldn’t be detained under Sec.136 and taken to the Sec.136 suite until a bed was available for two reasons: firstly, he was not in “a place to which the public have access”, as he was most definitely in his own home; and secondly, as the purpose of detention under Sec.136 is for a patient to be assessed for possible detention under the MHA, since he had already been assessed, it would be an abuse of the Act.

He couldn’t be arrested, and then taken to a place of safety, as according to the police, he had not actually committed an offence.

So currently there were no legal powers for the police to keep Alfred in handcuffs, or indeed to remain in his property without his consent.

I rang the duty sergeant and discussed this with her. Since there was no immediate prospect of a bed being available, enabling me to complete an application for his detention, I advised that the police would have no option but to leave Alfred’s flat immediately.

The following day, I was notified that a bed was available. The good news was that it was in a local hospital. It meant that I could complete my Sec.2 application form and render Alfred at last “liable to be detained”.

However, since it was extremely unlikely that Alfred would permit anyone to enter his flat in order to take him to hospital, I would have to obtain a warrant under Sec.135(2), giving the police the power to enter his flat in order to “take or retake” a patient liable to be detained under the MHA.

But at least that would be legal.


  1. Extremely thought provoking! Thank you for sharing.

  2. How re-assuring to learn there is no lacuna in the MH Act as per comments of judgement in Sessay,

  3. This just goes to how clumsy and impractical are our mental health laws when it comes to assessment in the community.

  4. Really interesting. I agree completely with your analysis of the legal position. In addition, the CoP now says that if the person doesn't want to be assessed in their own home, they should be removed to a POS under a s.135(1) warrant and assessed there. So I suppose getting a 135(1) warrant would have been the 'right' way to go- but in these circumstances most people would have thought it was unnecessary, and it would also have involved a considerable delay. Did the police think about arresting Alfred for e.g. breach of the peace? That would at least have given legal grounds for detaining him. Excellent blog as ever- thank you.

  5. I'm quite confused here. Just because he is paranoid surely does not mean he is a risk to himself or others, so why the need to detain him: he could have, and probably has been living like this for years (judging by the accumulation or boxes). This only makes me more convinced of the need to have access to legal representation at the point of assessment.

    1. I agree totally. Is the AMHP forgetting that his job is to serve the client, not enforce the law? I have heard too much from health and social workers, especially those sitting on Tribunals, about the 'right of access to treatment' and too little about the right to reasonably refuse treatment which is not 'necessary in a democratic society'.

  6. Isn't there too much concern here about incurring legal liability and not enough about treating Alfred reasonably and respectfully? Forced entry into his home, handcuffing, and the presence of so many strangers and 4 police officers were bound to make him feel insecure and violated and induce a psychotic episode. The action taken escalated the situation, not defused it. Given that the concern had initially been about gaining access to a gas meter, rather than hazardous behaviour, what was the urgency about getting into and then removing him from his home? I think the lesson in this encounter is to ask how Alfred's co-operation might have been obtained, eg via his family, a trusted neighbour, or his GP, instead of trying to coerce him. Of course, the AMHP was not in charge of the police operation, but could have recommended withdrawing, allowing Alfred time to cool off, and re-approaching him less confrontationally.

  7. I'm really hoping some of these postings are by AMHPs, as they are reassuring me by their approach to this issue. Having been assessed by an AMHP, sectioned to an intensive care ward, then released without any recommendations at tribunal (and having refused meds -although forcibly injected initially, until I realised it would continue - so I then took them, but didn't swallow and presented them at tribunal, which helped gain my release). I really hope that AMHPs are starting to think in the terms I'm hearing above and not in the terms of the initial post which I find extremely worrying.

  8. Even before then you had legal problems as you had no legal powers to enter and remain on the premises to conduct the assesment.

  9. Average day at the office!!!!!!!

    I think that this is indicative of the increased amount of psychiatric liaison/assessment teams interacting with police/general hospitals and so on, blurring the lines around responsibilities and legally appropriate courses of action.

    To my mind, the liaison team should not have gone anywhere near this unless the patient was willing to accept their support and assessment (even then, it really should have been a Crisis/Home Treatment type team set up to provide follow up if required). The police, in my view, had no right to call them in without the individual's consent.

    Had the patient not given valid consent to be seen and the risks were as stated, the police should have contacted the AMHP service directly and then - at least - proper consideration of the situation could have been given to legal frameworks/exit strategies and alternatives approaches. While the police remained with the individual seemingly for his safety, the AMHP could have obtained a s.135(1) warrant with the option to remove Alfred to a place of safety - if required - under the correct legal framework. Personally before that I would have asked to speak to Alfred as the AMHP and try and get a sense of where he was at.

    It appears here that Alfred was being held under some kind of bizarre house arrest due to concerns over his mental disorder. If the restraint was due to concerns over risk to life and limb, surely the police should have utilised PACE powers and not just sat on the guy until a liaison nurse (with no legal powers) turned up to save the day!

    There is little doubt that all of these people descending on the accommodation increased his anxiety and the agitation. Clearly, also, there were legitimate concerns about his welfare and potential need for support. We see it all too often now - that idea that "something must be done... and now". The problem with this is that it often leaves us as AMHPs knowing that we are in some ways colluding with legally questionable practices, at the same time as having a legal responsibility to consider the situation.

  10. "If the restraint was due to concerns over risk to life and limb, surely the police should have utilised PACE powers"

    And what PACE powers would that be?

  11. Section 115 ?

  12. Fair comment - more accurately, my statement should have been around Police considering their common law powers of arrest in relation to 'breach of the peace'. I remember now why I don't usually comment on these things!

  13. BoP wouldn't fit the criteria and even if it did they police they would have to put the male before the first available court which may mean there's not enough time for a MHA assesment. It also be criminalises the person in need of help. A 135(1) warrant was clearly needed from the off but as often is the case AMHPs tried to bypass this fact (if I had a £1 for everytime I was told you can't get a warrant if the courts closed!). That said there is clearly an argument against the police doing what they did but that's a seperate argument.