The concept of legal ice is one that I think that I may have borrowed from somewhere (and, if so, if someone can remind me where it was, I’d be very grateful). But it’s one that I find very useful in helping think through the dilemmas that arise in fast-moving situations, for instance in A&E where a person has taken an overdose but is demanding to leave, or a person is in the throes of a major mental health crisis at home and there is no time for an AMHP to obtain a warrant under s.135 MHA 1983. In very simple terms, the courts are likely to find that those involved are on thick legal ice where they do whatever is immediately necessary and proportionate to secure either the person’s life or risk of harm to others. Precisely what route they will use to reach that conclusion is beyond the scope of this post, and will depend upon the circumstances. That legal ice will hold even if those involved are not entirely clear as to what legal basis they are acting at that point. But it will get thinner the longer the time that they have to evaluate the position and (where relevant) take appropriate steps to invoke any necessary legal framework.
The concepts of necessary and proportionality can be found in both English law and, more to the point, the European Convention on Human Rights. Why do I say “more to the point”? Because the ECHR provides the framework which explains why professionals – be they police officers, paramedics or staff in hospital – are under positive duties (above all) to secure the right to life of those in crisis situations. In crude terms, the positive obligations contained within the ECHR explain why it is better, in a fast-moving situation, to err on the side of taking steps which will secure life, even at the risk of facing challenges afterwards, than it is to ‘freeze’ on the basis of uncertainty as to what steps can be taken and then to have to defend yourself in an inquest. But the ECHR also provides the vital counterbalance to ensure that those steps are not simply arbitrary or using a sledgehammer to crack a nut.
In simple terms, I find it helpful to think of necessity as framing the question ‘can I do something’ – i.e. is there a real risk, and, if so, what is that risk? Proportionality then frames the question ‘should I do something’ – i.e. even if there is a real risk, is there anything else that I could do to resolve the situation without taking the steps that I’m thinking of taking; and would taking those steps make the situation worse. These are, in some ways, as much ethical as they are legal questions, but, to me at least, ethics and the law in this area do march hand in hand.
One crucial point it is important to emphasise here is that legal ice will only be thick where the situation is genuinely unanticipated. Otherwise, the courts will – legitimately – ask why a crisis has been allowed to unfold (1) without earlier interventions, especially if those interventions seem then to require draconian steps; or (2) without taking steps to invoke whatever legal framework is appropriate to fit the circumstances.
A final point is that the Government has unfortunately stalled introducing a change of law in this area in England and Wales. s.4B of the Mental Capacity Act 2005 was to have been amended so as to make it lawful to deprive someone of their liberty in an emergency, if the person taking the steps (1) reasonably believes that the other one lacks capacity to consent to the steps being taken; (2) the steps must be necessary in order to give life-sustaining treatment or prevent a serious deterioration in the person’s condition; and (3) it is not reasonably practicable to make an application for the person to be detained under Part 2 MHA 1983, make an application to the Court of Protection, or start the process of obtaining authorisation under the new Liberty Protection Safeguards scheme. Unfortunately, as this scheme is not being introduced, s4B is not being amended. So it will continue, as it is at the moment, which only provides legal cover where an application has been made to the Court of Protection.