Today we learned that two police officers would be prosecuted for misconduct in public office following the death from positional asphyxia of Colin Holt just over two years ago. This detention caused various commentators on Twitter to talk about the inherent difficulties, sometimes hidden, of using s136 of the Mental Health Act. Colin Holt had not been detained under s136 – he had (presumably) been re-detained after becoming AWOL from hospital under the MHA.
But here is the problem and it’s at the centre of issue I have with some mindsets regarding the detention of people with mental health problems:
The medical risks from the original mental health or medical condition are not inherently related to the legal framework under which someone was detained.
There are many service users who have tragically died following contact with the police who were detained under law other than mental health law – Colin Holt was not one of them because he was detained in a private dwelling for being AWOL, but Sean Rigg was detained for a public order offence and we are still not clear what Michael Powell was detained for. Kingsley Burrell-Brown and several others were detained under the Mental Health Act.
In Colin Holt’s case the media are currently reporting that the police attended his home address after he was reported AWOL under the Mental Health Act. Health professionals alerted the police to his whereabouts, apparently. I must therefore assume that he was being re-detained under s18 MHA when the restraint incident commence – this the authority for AMHPs, police officers or anyone authorised by the managers of the hospital from which the patient is AWOL, to redetain them and return them there. I could be wrong about this – there are other possibilities, but this blog is about assessment of risks regardless of what laws are being applied.
What am I trying to say? – simply that it does not matter one iota WHAT legal framework someone is under when it comes to discharging a duty of care. I worry that the process that we hope cops will follow after using s136 is so prescriptive that people fail to think. I suggest we can certainly see this in some of the cases I have mentioned and I’m afraid to suggest that mental health professionals speculating about rigid process around 136 reinforces this without justification.
Nothing in UK law, ultimately, obliges British police officers do anything other than what they genuinely believe to be necessary to keep people safe and protect their Human Rights. In fact European law obliges them to do exactly this.
The risk a patient presents when they are arrested for any reason is the risk that they present whether they are arrested for a crime or for a Mental Health Act assessment. If they are presenting with RED FLAGS, which – we should recall – includes the ongoing need to manage patients who require ongoing restraint, then their medical well-being should be prioritised. That one officer may choose to arrest MHA whilst another would have chosen to arrest for a public order offence doesn’t affect the clinical risk and both officers should be thinking about medical and clinical risks where they have identified mental health problems. And yet hear all the time, stories of mental health staff having views in different directions about which legal framework the police should adopt and when. (I remember once offering a view on what care should be provided and when I was patted gently on the head and invited to run along – we should remember who is responsible for making relevant professional decisions and develop respect for professional autonomy. This doesn’t mean we should not listen to each other.)
Therefore, whether one has arrested someone under s136 Mental Health Act or under other MHA provisions; for criminal offences or for other legal reasons like immigration or court warrants – if mental ill-health is suspected we should be aware of the RED FLAG criteria and the potential need to call an ambulance. If the legal provision used is anything from the MHA, then the use of the ambulance service should be automatic and it should be attempted, even if it is thought that it would lead to a refusal. Where detention is made under other legal criteria, calling an ambulance should be considered where there are fears around RED FLAGS.
Finally, as a reminder arising from what we are speculating on today – it is vital that front line police officers learn laws around AWOL patients, including the requirement of the Code of Practice that where the location of AWOL mental health patients is known, it is for the hospital detaining them to recover and repatriate them. The role of the police is to assist mental health professionals where this is necessary and consistent with their – to prevent crime and bring offenders to justice; to protect life, protect property and maintain the Queen’s Peace.
“Can you attend [location] – Mr [name] is believed to be there, AWOL from [psychiatric unit].”
- Request the NHS to lead the recovery – note any refusal.
- Resist requests to be involved where there are no evidenced RAVE risks.
- If having tried and failed on points 1 & 2 – call an ambulance to the address to support the repatriation to hospital and note any refusals.
- Once detention affected - RED FLAGS to A&E, otherwise proceed to the intended location.
We need to distinguish medical threats from legal status and get rid of the rigid process-mindset that prevents us THINKING about the potential risk factors that should affect the quality of our response. We also need to have a health and social care system that gets on with letting cops make their decisions, rather than speculating with the benefit of 20/20 hindsight what should have happened at a job two hours ago if only they had been there to misunderstand the Law of the Land and actually participate in what the law says is a health and social care responsibility. <<< Said it. If we cannot understand why the law says this, then our problems are more serious than I fear.