Books

Emergency Mental Health Law

Since writing this post, the response has been extremely positive from a range of professionals across those mentioned below.  Various senior people have expressed an interest in thinking this through a bit further and regardless of where that goes, I have decided to produce a short-written guide which reflects the ideas below.  Not sure what format that will take when it’s finished as I’m still thinking it through, but such is the reaction to the idea below that it strikes me as worth doing something that fleshes out the bare idea and then see how others could make it into something useful, whether by internet or a short-course via an organisation. —— watch this space!

I have written another post on this idea, starting to flesh out some ideas and asking for feedback, please take a look at it and leave comments if you have any.

Michael./

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Books

I want to get together an “emergency mental health law” course. Something that could be up and running, by distance learning or e-learning that gives a CPD certificate – a basic standard of law knowledge that we can all agree is required by everyone who is engaged in this business. Don’t groan at the distance learning idea – I want people to stick their heads in books and read stuff, the actual law and what the judges said. Not some “old sweat” PC or AMHPs view on what the judges might have or should have said. Back to the source material and question it. Question Everything!

It should be jointly badged by the relevant professional bodies like the Colleges of Policing and Paramedics as well as Social Work and Emergency Medicine, plus the Royal Colleges of Psychiatrists, Nurses and General Practitioners. It should be taken by frontline staff in all those professions, or at least made available to them – in my humble view.

It should have reference and quick-guide materials available, electronically and in hard-format for us on the road. I hereby copyright this idea and should register a business interest!?

And here’s the big thing: I don’t want anyone in that group arguing that they “don’t need to know that!” This is also about achieving a joint-understanding of what other agencies can do, so whilst a psychiatrist may not, for example, need to know whether or not the police can force entry to a premises in particular circumstances in order to be an effective psychiatrist, they may need to know such things if their job takes them into the territory of requesting police actions in support of mental health processes. So for example, a s12 doctor or psychiatrist who undertakes Mental Health Act assessments may need to understand it – I’ve certainly found them willing to offer me legal advice about my legal duties, so it would be nice if that were grounded in legal knowledge.

No police officer needs to know the precise difference between s5(2) and s5(4) of the Mental Health Act, but they do need to know that section 5 can be used to detain patients in a hospital and they need to know that it can be used in acute hospitals as well as mental health units, but not in A&E. If I had a fiver for every time I’ve heard of officers telling A&E nurses that they “should have used section 5” ….

MAKING STUFF UP TO SUIT YOURSELF

This week, I will admit to having had my fill, quite honestly – police officers advising other cops they should illegally detain people by misapplying the Mental Capacity Act; mental health staff asking the police to illegally force entry to a premises without a warrant; staff misunderstanding that they can apply section 5 MHA to an informal patient who is in the hospital grounds and wants to leave against advice and who will be considered a high risk missing person if not prevented from leaving. It’s really, really basic stuff. And it’s not the getting it wrong that I necessarily mind: it’s the confident certainty of people who are busy getting it wrong that I marvel at.

We expect police officers to know their stop and search law; their powers of arrest; their ability to use section 136 correctly. Why shouldn’t we also expect them to know the essence of their powers of entry for mental health purposes? This week, “Inspector, we’ve got officers at an address searching for a missing patient, they think he’s inside his home address can they force entry?” We should know this.

This post is not pointed at anyone group of professionals – we’re all at it, for various reasons and we can think back to loads of other examples given in this blog where misunderstanding the law has got people into serious difficulties. You can be the best in the world within your profession, but if you don’t know when you can or can’t detain other people, when you can and can’t force off their door or what your partner professionals can and can’t do, you will struggle.

STATUTORY GUIDELINES CASE LAW

JONESLegal knowledge needs to go just beyond the statutes as well – into the territory of case-law and knowledge of the significance of a Code of Practice. If you want to look hard enough, you will see the Code of Practice to the Mental Health Act being wilfully breached without worry, including at the organisational level and in many published joint policies that exist between the police and the NHS. (It does make me wonder what Trust and Police solicitors are checking when they approve these things.)

Every professional involved in this interface needs to know that the House of Lords (now the Supreme Court) has said you should follow the statutory guidance that Parliament has bothered to publish in a Codes of Practice unless you have “cogent reasons for departure.” So if you are departing, what justification do you have? If none, you’re in the wrong place, legally speaking.

Only this week a nurse has asked me about direction that is given in her hospital to informal patients. Despite being told upon admission “as an informal patient you are free to leave at any time. You do not need permission to leave but you are asked to notify staff of your intentions should you choose to go out” there is an informal practice of telling patients that they “can’t go out” until seen by a doctor. I’m sure we can all think of sensible justifications for this approach, but what if the doctor is going to be a few hours until they can see the patient; what if they are not actually available until tomorrow morning? Are we preventing the patient from leaving because of that policy, or not?

We now have someone who wishes to exercise a legal right that they enjoy, to leave somewhere they are not obliged to remain and they are being prevented by policy – but that policy has to be enforced by a professional, in this case a mental health nurse. What law will that nurse rely upon to justify denying that patient the right to leave? I feel confident that few answers measure up against paragraph 21.36 of the Code of Practice, bearing in mind that the nurse could choose to use s5(4) MHA if they think the grounds are met. Why decide to detain and not apply s5(4)?

IMPLICATIONS

We also need to bear in mind further implications: what if the patient starts to become resistant or even aggressive to the nurse in question, perhaps attempting to force their way out of the hospital – is it not a lawful defence to false imprisonment to show that you merely used reasonable force to extricate oneself from unlawful detention? Yes it is. What if the nurse(s) uses force to keep the person there – on what lawful authority did you do so? None – so that’s an assault.

I must be frank, if you locked me in a building and said I couldn’t leave without explaining the legal basis of your decision, I would call the police and ask them to help me exercise my legal right to use appropriate force to extricate myself or my loved one – to which s3 of the Criminal Law Act 1967 applies.

WE NEED TO KNOW THE LAW – just sufficiently to apply it!

UPDATE:  I have written another post on this idea, starting to flesh out some ideas and asking for feedback, please take a look at it and leave comments if you have any.

 

Resources

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BadgeThe Mental Health Cop blog
– won the Digital Media Award from the UK’s leading mental health charity, Mind
– won a World of Mentalists #TWIMAward for the best in mental health blogs
– was highlighted by the Independent Commission on Policing & Mental Health
– was highlighted in the UK Parliamentary debate on Policing & Mental Health

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17 thoughts on “Emergency Mental Health Law”

  1. i would love to see the police called for de-facto detentions I’ve had a number of rows with ward managers about this practice and put in formal complaints, but sure i only come across a fraction of these incidents

  2. A printable leaflet as part of the course would be appreciated. Something to keep in the go bag for memory refreshment or for those really contentious or complicated jobs where you have to start quoting things.

    But like the idea of the course. Strange that we don’t already have one. Especially as we do so much mental health work as police and it is so dangerous for those involved.

    1. I agree that an aid memoir would be a good idea to remind officers of the requirements but I would suggest that a better idea would be something that fitted inside an officers notebook like a flow chart of when certain powers apply would be a much better idea. That way easy and quick to check whilst on the job and always available (Michael got to be a market here) such an idea has been trailed successfully for other legislation and been found to be effective.

      I would however like to clarify that the majority of people with mental health issues are not violent,threatening and dangerous.

      1. Do we need aide memoires for every other bit of law officers need to know? I don’t think so. If we taught it properly in the first place we would need to be reminded. I do know where you are coming from and have produced them myself in my own force.

  3. Great idea. Respect for channelling the frustration all these misunderstandings and misapplications must cause into something positive. Training and increasing levels of knowledge and skills on all sides is the answer. If you need any input from someone who’s been on the patient side on multiple occassions when severely unwell, but also has doctorate-level training in mental health and knows the academic literature, just shout.

      1. Do just shout if I can be of help, I have a lot of experiece writing and delivering MH training for the 3rd sector/academia so even if you just need read through/comment or alternaively the service user perspective on material, am happy to help on this topic. I think it’s really important and it’s refreshing to see someone addressing it in a positive way.

  4. “I must be frank, if you locked me in a building and said I couldn’t leave without explaining the legal basis of your decision, I would call the police and ask them to help me exercise my legal right to use appropriate force to extricate myself or my loved one”

    Yes but you’re a policeman. Being a psychiatric inpatient is a whole different ball game, especially if they have labelled you and your family in psychiatric notes with mental disorders, whether true or not. And declared you to be “without capacity”. Every time I entered a psychiatric ward voluntarily – 1978, 1984 and 2002 – I was either forcibly treated without being detained or latterly detained then forcibly treated. Same with family members up to 2013.

    In 2012 I called the police, visited the police station, had the police at my home and then was accused by the police in an adult protection report of causing “psychological harm” to my son, 28 years old, who at the time was in a locked psychiatric ward being locked in a seclusion room with no toilet for hours at a time, with a broken hand untreated. I eventually did get an apology of sorts. The main agencies at fault were the social work and health board “professionals” who also apologised to some extent without admitting responsibility or liability. The complaint is still ongoing.

    So yes your suggestion of an online mental health law course is a great idea, particularly for Scotland and Fife where I live. Bring it on.

  5. I find it scandalous that everybody who is responsible for the implementation of the MHA et al does not have such basic training on the legalities. Especially when dealing with the right to detain people and to insist on medical treatment without the necessity of consent. As you rightly point out talking about being conversant with the day to day implantation of the regulations rather that being able to write a thesis on the ins and outs of the MHA.

    To enforce food legislation in the UK have to hold certain qualifications and maintain a level of training but not it seems for MHA legislation. I am aware that for limited roles such as AMHP’s there are requirements and rightly so. Even then I understand that one trust was found on inspection not to have complied with the ongoing training requirements of such work meaning in effect they were acting ultra vires (outside their powers).

  6. I think this is a great idea There are plenty of ways you could set up such a course yourself, and I’m sure there would be plenty of individuals and oragnisations that would come to be involved in it as it develops. You could start to cobble something together by discussing what kind of information to include via a collaborative wiki such as wikispaces – I’m sure lots of people on twitter would be happy to contribue, Then you could go on to create a more formalised MOOC and start letting various agencies know about it. Go for it!

  7. Thank God someone is advocating common sense and transparency. And believe me within MH services these do not exist. The amount of distress, harm and costs associated with responding to formal complaints and legal actions could be completely avoided in so many cases. The world does not need to be any more antagonistic and anger fuelled!

    Would be really interested in thinking in practical and strategic terms how to get this over to those who already think they are expert in their own professional domain but choose not to see the bigger and integrated picture. The case studies you run here are excellent in illustrating how to/not to join things up. It is the lack of transparency that causes so much grief.

    Speaking from the other side of the lucid fence when things go wrong I try and look at where the gaps were and at what point could something have been changed and then think about what prevented this. As a patient I would ring the police but would need to be clear what I was stating! So I would suggest that for eg any crib and info sheet is extended to ward patients as the more informed we all are the more coherent the response ( complete look of horror on the faces of MH staff at this point!!!). MH and MCA Advocates are a potential resource as well when looking at a wider range of case studies.

    I have had a complaint against illegal s136 detention upheld by the Met and while I am sure there is a court case in there somewhere what I really wanted was of course the word sorry and something done to adequately train the officers concerned. Plus some real on the job resources and back up on what powers they have and real thinking on when these should and should not be applied.

    This really extends to the home situation more than anything for me in this current climate. Particularly as round here the AMHP team are now regularly advising/informing the police to use the MCA to forcibly remove. Of course they dont ever suggest the officers refer to Sessay or anything else! The officers simply do not understand and I cannot tell you how many times I have given Met police the details of this blog to tell them to go and check out the law!!

    Of course this is a completely bizarre situation for all but there doesnt seem to be a resource they can look up or have on an App. Seriously thought at one point of drawing up a flyer with your details on it and handing it out through the detention process. the police are the only out of hours emergency service in London . always arrive when paramedics called ( even with non MH issues if someone has a flag) so lets acknowledge this as the starting point.

    Can you piggy back your ideas on this on to those ‘projects’ where MH nurses are now out with the police? Be nice to think something good could come out of that idea! ! would like to see all police officers have a crib and info sheet that they can then read over to the crisis team /AMHP’s/s12 Drs/ ward staff when difficult situations arise. I think they can assert this role as they are now the only attending emergency service in MH.

    If they give these to patients and then anyone who turns up from MH service then this spreads the joined up message. Because believe me I am going to be reading it to the MH worker who I feel is breaching my legal rights which may just prompt them to think in a joined up way!

    In London try the Maudsley Charity for funding if it can be extended in to all professional groups and Advocates and beyond. Much more chance of funding if seen as an integrated and therefore somewhat innovative approach. And ties up well with using the Sessay case given the Trust that was found liable. Maybe there are other areas in the country where judgments have gone against them and they are then open to avoid further breaches? Or maybe I am too idealistic.

    If you ever want a pt/service user overview or input let me know!

  8. A common understanding of the Law would help as would an understanding of the deifferent roles & perspectives of professionals involved in MH Crisis & MHA Assessment work. It would help if we understood the responsibilities of the different organisations tasked with delivering services & that includes understanding why & where they fail (everyday) & then holding senior managers & elected representatives to account, rather than leaving front line staff & service users & carers to muddle through.

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