The Code Of Practice Revision – part 2

This is my second post on the subject of the current review of the Mental Health Act draft Code of Practice.  The first post covered my response to the new chapter (sixteen) on police powers and to some things that are not covered in the new draft.  This post intends to look at the rest of the Code, only in so far as it affects the police and suggest what should be in it.  Remember, any of us can contribute to the Code of Practice review and the Department of Health have a website with various versions of the consultation documents and methods by which to provide your view.

I’ve often remarked of the current Code of Practice that as a police officer, you only really need to read chapters 10 and 11, plus 21 and 22 – and that if you’re really feeling keen, read chapters 4 and 5 as well.  In the new Code the chapters have been re-arranged so to achieve coverage of the same issues, you would now need to read chapters 16 and 17, plus 27 and 28 – and that if you’re keen, read chapter 14 and 15.

These chapters cover –

• 16 – Police powers for things like section 135 & 136.
• 17 – Conveyance in all of circumstances where transport is required.
• 27 – Leave of absence from hospital for detained patients.
• 28 – Patients who become absent without leave.
• 14 – applications to hospital.
• 15 – urgent / emergency applications to hospital.

Of course, you could  read all 337 pages, if you wish!

POLICE SUPPORT TO THE NHS

All of the other chapters that I will focus on in this second post involve police response to or support for NHS processes: whether it is around applications being made under the MHA to hospital or in connection with the search and recovery of patients who are absent.  As I went through the chapters I could help but think, “This isn’t really changing anything.”  For the most part, the wording and requirements of these chapters have been lifted wholesale from the current code and given new paragraph references numbers.  It is for that reason I am not going to document a long list of specific references to compare and contrast.  In the examples which are too numerous to list fully without it becoming quite tedious for us all, this means that certain tensions and ambiguities that exist today about which organisation does certain things will still exist in the future.

AWOL patients is a good example of what I mean –

Numerous times police forces are asked to despatch officers to a patients home, to re-detain them under s18 of the Mental Health Act after that patient had become absent without leave – it doesn’t really matter the manner or way in which people became absent, as long as we know that they are.  Now, the current code states in paragraph 22.13 –

“The police should be asked to assist in returning a patient to hospital only if necessary. If the patient’s location is known, the role of the police should, wherever possible, be only to assist a suitably qualified and experienced mental health professional in returning the patient to hospital.”

The wording of paragraph 28.13 is exactly the same and so several problems will remain.  The use of the words,”if necessary” and “wherever possible” give a get out clause to whoever wants one and if NHS organisations arrange themselves so it’s never possible for either inpatient or community mental health teams to recover patients who are AWOL where their location is known, they will understandably seek to take advantage of those words.  “It’s not possible officer, we’ve only got three nurses on the ward and we can’t leave the ward unstaffed to return the patient, so it will be necessary for you to do it.”  How do you argue with that?  Well, you could ask them why the community mental health team won’t undertake it – “Oh, that’s not their remit.”  So it’s a police role by default of it being no NHS team’s role, because we didn’t design the recovery of AWOL patients into our mental health services’ operating systems despite the fact that the Code of Practice clearly envisages  less police involvement than we currently see.

Remember: this draft Code of Practice will be come guidance that must be followed unless there are “cogent reasons for departure”.

MORE DETAIL

There are many other specific examples: with regard to the circumstances in which mental health services may ask the police to convey people.  The new paragraph 17.12 refers to the circumstances in which the police are asked to support conveyance processes where patients are “violent or dangerous”.  As I’ve previously said, not all resistant or agitated people are “violent or dangerous” and of course, local procedures and protocols could and should clarify these things.  But they too often don’t, which is why we have seen situations where elderly dementia patients have been subject to restrictive restraints by the police and complaints and controversy result.  So I just wonder whether the way in which the Code is drafted could assist in resolving those ambiguities about expectations?

We see no progress in Chapter 14 on this issue of detention and conveyance after Mental Health Assessment of a patient who is subject to an application for compulsory inpatient admission.  There have been operational tensions for years between police officers, paramedics and AMHPs about achieving the admission of resistant patients, the delegation of authority to detain and convey under s6.  This material remains largely the same – AMHPs may delegate s6 authorities, no-one is forced to accept them where AMHPs do wish to delegate them and it should be sorted in a local protocol.  How, if there is ongoing unilateral expectation by some areas that it is always the business of the police to do the coercing?

There is a theme running in my view of the chapters being reviewed here: how do we achieve a clearer understanding of whether the Secretary of State really does think it’s always for the police to coerce the vulnerable and OK that mental health organisations deflect this demand to the police?  I wonder what the Home Secretary thinks of that idea given the importance on ‘reducing crime, nothing more, nothing less’?

LOCAL PROTOCOLS

So is it about local protocols – perhaps it is not the role of a Code of Practice to tell Newcastle or Manchester how to sort this out?  The Code of Practice stipulates in all of the important chapters which cover close partnership working that local areas must agree policies and procedures for four things; and this requirement remains unchanged in the 2014 draft –

• Place of safety processes
• Conveyance of detained patients.
• AWOL patients.
• MHA Assessments on private premises.

To what extent should we regard it as the role of the Code to be precise about how things should be done or by whom when there could or should be room for local arrangements to prevail in such a way that suits those areas?  This would allow account to be taken of demographics, geography and other organisational factors that influence how partnerships work and I fully understand how there are differences between Cornwall and Camden and between Herefordshire and Handsworth.

Maybe it is just me, but what I need from a Code of Practice is just one or two more degrees of greater precision about the things that relate to the core values of the Code, of which there are five stated at the beginning of Chapter 1.  I don’t want or need everything specified, but I need to read things that move beyond the ambiguous, beyond the potential for unilateral decisions by organisations in their own interests, without explicit consideration of the impact upon others.  A recent operational situation brought to my attention highlights this perfectly: could officers attend an address to force the return to hospital of a s2 patient?  All sounds normal enough so far, but we were then told, “She’s 29 weeks pregnant.”  When asked about the implications of using force to return her, the availability of MH staff to attend with the police and MH services taking a lead using staff trained in therapeutically appropriate restraint techniques, it all hit a wall.  It turns out that MH services wanted the police to do this, despite what paragraph 22.13 says.

Of course, you could just say, “No – not doing it.  Paragraph 22.13 says, so go and tell your boss and ask them to support your problem in an appropriate way.”  But it doesn’t sit right does it? – officers fear the consequences of both action and inaction, partly because the Code is written in such a way as to support the application of pressure by mental health services who haven’t fully considered its implications or are choosing to disregard them.

POLICING THE CODE

Here’s the big rub: who is policing this document?  It requires and suggests many things – but that only achieves proper significance when some of them happen and some of them don’t if there are consequences to these things not happening.  As the code itself makes clear in the pre-amble, failure to adhere to the Code could give rise to legal challenges so how is it policed?  Non-adherence to the Code has contributed to some of the disastrous outcomes we’ve come to learn about and I keep thinking of certain jobs I’ve known and been at where I’m left standing responsible for the medical management of patients with problems so complex that I question whether any junior psychiatrist or junior A&E doctor would go anywhere near the person without bleeping the on-call Registrar or Consultant.

And yet there I am – me and my first aid certificate.

If we are going to refresh this document and re-emphasise its importance, I could without the ambiguities that never get resolved and which have led to a creeping presumption over the last fifteen years, that the role of the police is to coerce the vulnerable, on demand.  It seems OK to ignore the Code of Practice where adherence has significant implications for mental health and other health services and yet violations of the code which can push demand towards the police and police custody are to be tolerated and taken less seriously.  These kinds of double standards – known about by the CQC – could be addressed by a more robust, less ambiguous Code.

I have said previously that I asked a wise old sergeant what a Code of Practice was whilst I was a probationary constable and he replied, “For your purposes, it’s a list of requirements just like an Act – you bloody do it unless you have a damn good reason not to!”  That’s how the PACE Codes of Practice are largely seen within the police.  The Mental Health Act Code of Practice has never benefitted from being seen in those terms and I ultimately worry that this document in its current draft form is too similar in content to its predecessor document to affect the standing in which it is seen or resolve the operational tensions that arise.  For that reason, despite many things in it that seem attractive, I worry what greater effect it will actually have, if any.

I will be putting my views in to the consultation and I encourage you to do this same, whether or not you agree with anything I’ve written in these two recent posts.

---

Winner of the President’s Medal,
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award

 

All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2014

---

I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current.  Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.

Government legislation website – www.legislation.gov.uk