Hello, I am posting anonymously for this post. I am an AMHP, but this is about a situation where I was a patient, hence why I am posting anonymously.
I have Bipolar Disorder and at the beginning of the year I became unwell with a manic episode. An ambulance was called to my address by the Police after I had contacted them in relation to some delusional belief. The crew came into my home and almost immediately told me that I lack mental capacity to make any decisions and that they will be removing me from my property to A&E. I refused (I was due to see the crisis team in a few hours so preferred to wait for them). They then told me that if I did not come, they would contact the Police who would forcibly remove me from my home under the MCA. I explained to them that I was not sure this was lawful (with Sessay in mind), and told them they need to contact an AMHP to apply for a s135(1) MHA or do a MHAA in my home. They continued to insist I come with them. With the threat of Police being called and being forcibly removed, I went with them, whilst protesting. My wife (also a RMN so has awareness of the law too) asked if there was any concern for my physical health hence they recommendation to take me to A&E, and they stated that they are only taking me to A&E for a mental health assessment.
I donāt dispute that I lacked capacity to make decision about my mental health needs (although I dispute that they were able to do a full MCA assessment in the few minutes they were in my home before they announced their decision). But my main query is was this legal? From looking at Sessay, although that was Police, their act of removing a person from their own home relying on the MCA to a place of safety for a mental health assessment was deemed unawful. Therefore, my conclusion is that their actions with me were also unlawful.
I had complained to their PALS department however they said that they insist their actions were lawful.
I was wondering what other people think, whether this was lawful or not?
I am not an expert or AMHP, but following a wrong accusation of suicidal ideation 3 years ago, where a person who saw me cry reported I had had a severe mental decline, the LA created a file, made up data and shared it in breach of DPA 2018, para 170 with a non statutory safeguarding authority. Despite written evidence from my gp, of no mental disorder they threatened forced removal under a s135(1) etc which left me terrified and caused a severe trauma response. I have no MH issues, never known to services etc.
As a result I have been studying the law. In my working life I served 33 years in criminal a justice.
My understanding is that police can only use a s136 and for this you have to be in a public place. You were at home.
A s135 (1) has to be applied for by an AMHP ā¦this clearly had not happened.
I turned the ambulance crew away. I also turned the police away. I was at home, in a place of safety, with familyā¦the same as you. They couldnāt force entry under Pace s17 as they could not justify risk to,life and limb.
I beleive they acted unlawfully.
I hope you are ok now and please, for,fairness and justice, pursue this further with Pals. I did in my case as the NHS sent a doctor to my home, within a few minutes she concluded no mental illness and after 18 months of complaint to the PHSO , LGSCO and ICO the nhs erased all records and apologised for making me the victim of epistemic violence and organisational abuse.
You are in a better position in some respects to protect people s rightsā¦with your AMHP experience.
I would agree with others that if the police had removed you it would have been unlawful. On the facts it sounds like almost the exact situation as Sessay - in much the same way threatening to s.5(4) an informal patient if they attempt to leave is āde factoā detention, this would mirror that.
I would continue to escalate and push back against PALS.
I am sorry for what you went through. My conclusion is that the Police actions were unlawful. Without a Capacity Assessment carried out, presumption of capacity applies therefore you should have been allowed to chose to wait for the Crisis Team instead of being taken to A&E. However, I can see why their gut feeling led them to override your choice - you called them yourself, not someone else on your behalf, therefore it can be argued that if you had capacity to decide you preferred to wait for the Crisis Team you would not have called the Police. Calling the Police led them to presuppose that you needed help immediately rather than later. Because of that, I would say although they acted unlawfully in that they presumed lack of capacity without carrying out a capacity assessment, their actions were appropriate albeit unlawful.
Like Anon I have been wrestling the complaints systems for what the evidence indicates was a non compliant section 2 detention. So far Iāve contacted Trust, Council, CQC, CQC CEO, GMC, GMC section 12, NHS ICB, PHSO joint with LGSCO all with avoidance strategies. without logically refuting the evidence. The case is still active, with other options.
Against this background I am amazed at the post from JB. LLB (Hon) Law MH Advocate which in my interpretation suggests unlawful in this case is appropriate and somehow makes it OK. Is this stance widely pervading this area of law, it would it explain some of my encounters?
I hope Anon prevails.
Thank you all. Just to clarify it was the paramedics who removed me, they threatened to call the Police but given this threat and threat of forced removal I went with the paramedics although protesting. I will be looking to pursue it further through legal channels and whilst I understand why they did it, I cannot see how it was lawful.
Hi Anon, like others I am very sorry to hear about your experience. To clarify, the ambulance crew were entitled to conclude that you lacked capacity to care for yourself based on their observations provided they had the evidence to support it i.e. they did not need to go through a formal MCA assessment process, in which case they had a duty to act in what they saw as your best interests. However, that did not permit them to remove you to somewhere you didnāt want to go as this tipped into being a deprivation of your liberty- which was the point of the Sessay case. Hence the need for a s 135(1) warrant, as you told them. There is a grey area for purely physical health needs, but you say that didnāt apply here.
I have some sympathy with ambulance crews as this area is not easy for them and they were presumably trying to do the right thing. However, thatās no excuse for acting unlawfully- they could and should have got advice via their control- and if itās unlawful it cannot be āappropriateā, even if the crew were acting in good faith.
If you have access to a (private) mental health solicitor, or to an experienced IMHA, it might be worth asking them to write formally to the ambulance service management to draw their attention to the issue and get them to issue clear guidance to their crews. Iām not sure if you have already tried this. Otherwise, if you have the patience, take it through the formal complaints process and if necessary to the Health Service Ombudsman, who I think has jurisdiction over NHS Ambulance Trusts (but check this first). Good luck!
Sorry to hear of your experience. Professionals like the public are entitled to an opinion. However, the MCA (2005) has to be balanced with the HRA (1998) as you rightly know. The issue being if any professional removes a person under a threat of calling the Police, where is the evidence that can be validated?
One has to produce the evidence that a proper MCA Assessment took place. A cohesive action based on verbal discussion is in sufficient if it cannot be checked upon later on who did what. Appears more of a question of negligence if not following the guidance and statute here by the paramedics?