Pavlov’s Dog

In the last few months, I’ve found myself in various rooms with professionals of all kinds, including police officers, finding myself saying the same thing over and over again that I was saying in 2004 when I first started working on this. Last week, I actually found that I was quite deeply boring myself witless when I realised that my mouth was on ‘transmit’ for some standard argument to reject a common misconception, whilst my brain was not fully engaged. I found cerebral space to remember that I have to get my car MOT’d in the next month or so and somewhere in my head I could hear my voice as if it were coming from elsewhere and my brain found space to say, “Oh, for God’s sake – do we gave to discuss this AGAIN?!”

Of course we do have to discuss it again – because we’ve still got so much progress to make and given how far we’ve come in the ten years I’ve been working on this, I’m already wondering whether this will get sorted before I retire in 2029.

For example, let’s think about the Crisis Care Concordat. The process means that local areas should meet to decide whether the signatory organisations agree in principle to work together. They don’t actually have to do anything – just agree to do so. Yet it’s still taken nine months or more! Why!!

If you were to tell me that A&E is “not a place of safety” then there’s a standard response to that. Tell me that extremely resistant or aggressive detainees have to go to police custody if they are detained unders 136 of the Mental Health Act and I have a few standard responses – some take longer than others! Tell me that you can only obtain a s135(1) warrant if we already know that access cannot be secured? – again, a standard response will emerge.

Ten years of banging on and On and ON; again and Again and AGAIN.

It’s amazing how pervasive certain myths are – and I’m casting my aspersions widely here, including within my own profession. I still keep hearing A&E colleagues talking about whether they are a ‘designated place of safety’, the implication being that unless somewhere is, the police cannot remove a person to that location under s136 of the Act. As soon as someone can tell me the legal reference for that concept, I’ll be right in the conversation! In reality it’s not even a ‘thing’ – the word ‘designated’ is in the Code of Practice to the Mental Health Act only twice and neither time, in relation to places of safety or section 136.

I keep finding that police officers, A&E staff as well as mental health nurses and, I’m afraid, even AMHPs keep tripping over themselves in conflation and / or confusion —

A police officer recently told me that if you find yourself in a private premises with someone who is in immediate need of care of control you can detain them to prevent a breach of the peace, as a proxy for the Mental Health Act, irrespective of whether you would want to place that person in court. Err, no … you can’t! The case of Hicks v Commissioner [2014] showed us this – you must have an intention in your mind when arresting to prevent a breach of the peace, to place that person before a Magistrate as soon as one becomes available.

So I’m worried that as areas are piling in to the issues they are going to tackle as part of their work on the Crisis Care Concordat, there will be more challenges than we could do with having to handle – yet handle them we must. We know that the Concordat did not arrive with a pile of money attached and that better partnership working must be achieved within existing financial envelopes, but we also find that we don’t fully understand the interface of our organisations, legally speaking. I’m still waiting for a convincing, detailed answer to the question, “When are liaising, when are we diverting; who is making this decision and how?”

FAILING TO LEARN LESSONS

Street Triage initiatives are exposing mental health nurses to some operational of the operational dilemmas that every frontline police officer knows all too well – and their reactions are proving to be the same as the ones the police have already been told off for! We know from the case of Sessay v SLAM and the Metropolitan Police Commissioner [2010] that you can’t use the Mental Capacity Act 2005 as a proxy for the Mental Health Act either. And yet that’s exactly what a street triage nurse was arguing to police colleagues earlier this month.

I’ve known Crisis Teams to ask, “Can’t you just get him outside and 136 him?!” Not without breaking laws, I can’t – so no. But a query I had from Professional Standards Departments indicates that some officers still think they can arrest someone to prevent a breach of the peace and then, once outside the premises, de-arrest and re-arrest under the Mental Health Act. It’s more than a decade since South Wales Police did that and were sued for it. Although something of a technicality meant that challenge wasn’t successful, the judge still made it abundantly clear they acted unlawfully.

If the Crisis Care Concordat means that we are going to get agencies together and do things properly for the first time since the evolution into a highly deinstitutionalised model of mental health care, it doesn’t just mean agreeing to work in partnership and help each other, but it means understanding the legal framework within which that has to sit. We’ve seen examples of services predicated upon disregard or ignorance of legal frameworks and oddly enough, they tend to be the backdrop to various kinds of disaster and difficulty.

Writing this particular post was a fairly boring half hour of my life that I’ll never get back, ameliorated only by also watching a very funny comedian whilst alluding again to those things I’ve said many times in BLOGS over the last three years. This post also marks the three year anniversary of my BLOG and I’ve now spent way over ten years working on this business, so you’ll have to bear with me as everyone is finally getting excited about policing and mental health because most of the problems we have could be sorted in a year or so – if there had been sufficient will. Ten years in and I sometimes wonder whether there is – and that’s why I wonder what things will look like when I retire in fifteen years’ time.

I hope the Crisis Care Concordat means we’ve reached some kind of critical mass but whether we have or not, we’re not going to get far unless everyone at this interface has appropriate legal education – from commissioners to senior managers on all sides, right down to frontline staff. Different amounts and kinds of education, varied by role. Maybe that’s a specific thing that all areas should have in their action plan?! Applied legal education in mental health and related criminal law, as well as health and safety and human rights law. I’m sure I heard that somewhere once!

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

Winner of the Mind Digital Media Award

 

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

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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

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