All posts by mentalhealthcop

24/7 police inspector but blogging in a personal capacity. Interested in mental health issues and criminalisation but views do not represent those of any police force or police organisation.
NamibDesert

Inappropriate Detentions

I’m amongst the first to admit that police officers lack the necessary training to ensure that they get s136 detention decisions consistently correct.  I’ve written about this before, offering my view as to how the dilemma should be approached.  I’ve also acknowledged the point made by some mental health professionals: that police officers occasionally use s136 where it is blatantly illegal – for example, in private premises – or where other powers of detention should be preferred.

What I’m also clear about – and it seems fair to mention this when I’m prepared to accept problems in some officers’ usage of s136! – is that many detentions are only necessary at all because patients cannot directly access the NHS services they need or in a timescale that suits them.  That’s where the police often find themselves involved in taking detention decisions and I want to amplify this point yet further – some s136 detentions follow decisions taken by the NHS to seek the detention of patients or to refer incidents to the police which they ideally wouldn’t.  Some patients try and then fail to access their CrisisTeam or their community mental health team and end up coming to police attention when they have “one foot off the bridge” (to use a phrase from the Mind Report on Crisis Mental Health Care.)  Other patients are actively deflected to the 999 system by our mental health system.  Indeed there is some emerging suggestion that existing community and crisis teams are now more included to deflect demand to the police where they know the police have access to street triage service.

INAPPROPRIATE DETENTIONS

Two mental health trusts in the last month have used social media to broadcast their street triage schemes and have specifically stated that they are going to be working with their police services “to reduce inappropriate detentions”.  I will admit to smarting a bit at the very idea of this!  Whilst accepting that forces use section 136 in very different ways and that this includes usage which may be questionable, there are many forces using s136 quite lawfully and appropriately.

There are two types of detention that seem to get labelled inappropriate -

  1. Those detentions which are straight-forwardly illegal and those which should have been made under other laws.
  2. We also see an emerging narrative that suggests because street triage has reduced use of s136 by a certain percentage figure, that number represents the total number of interventions that were inappropriate.

I can accept point one: I will argue vigorously about point two! 

We should remember that the threshold to be satisfied for detention is actually remarkably low in the United Kingdom – far lower than in certain other countries where equivalent powers require the police to apprehend violence or harm.  Mental Health Act provisions in the United Kingdom merely require the officer to be satisfied that someone immediately needs care in their own interests, a much lower threshold.  As such, a greater number of circumstances can be legally justified as requiring or allowing detention.

We should also remember that far too many people who talk about section 136 MHA think that the only important measure of its effective use is the number of people who are subsequently admitted to hospital as inpatients.  I’ve dispute this for many years: how can we argue that section 136 was inappropriate if someone in immediately need of care was kept safe from harm until assessed only for the assessment to conclude that they weren’t known to the mental health trust but needed referral to the CMHT or various forms of social support?  Or a patient who is already known and s136 reveals that their care plan wasn’t working for them and this can be rectified?

RE-WRITING HISTORY

This alludes towards a narrative that alters how some people, including me, think we’ve ended up with a mental health care system consumed with criminalising vulnerable people and ensuring the justice system plays a key role in gatekeeping healthcare in a way that wouldn’t be tolerated in any other arena of illness.

I’ve tried over the last decade to understand how I ended up – as a police officer – frequently gatekeeping this entry to our mental health system?  Why did someone want the wellbeing of patients so acutely unwell that no junior doctor would go near them without bleeping the on-call registrar or consultant to be left in the hands of response officers and custody sergeants?!

I can’t avoid concluding something along these lines -

  • We (quite rightly) started mass de-institutionalisation of mental health care in the 1960s.
  • This followed on from the discovery in the 1950s of the first generation of anti-psychotic medications.
  • As the decades rolled through the 70s, 80s and 90s, we reduced the inpatient population of our mental health system by over 80%.
  • We subsequently failed to invest adequately in our community mental health care system – CMHTs, CrisisTeams, etc..
  • As a consequence of non-investment, the criminal justice system is drawn in to fill the vacuum that exists —
  • So we see the prisons providing ‘inpatient’ mental health services for thousands of vulnerable people who arguably need hospital care;
  • And we see the police providing ‘community’ crisis responses to thousands of people who arguably need accessible community care.
  • We also see probation drawing together social provision for offenders after sentencing of all kinds.

Of course, this crude summary that misses various important medical, social and political issues but it at least suggests how we have ended up with the police playing such a prominent role in our emergency mental health care system and why that demand has been growing in most major jurisdictions over the last two decades.

The police never prepared for this, of course: promises of sufficient investment in community care were repeatedly made to suggest there was no need to worry about reduction in the inpatient estate.  In fact, you’ll notice that these are the messages that have been put out over the last few years as the NHS has decommissioned approximately 10% of its inpatient estate since 2010.  And meanwhile, police contact with vulnerable people has been rising, use of section 136 has been rising and the number of people criminalised after being arrested under other provisions whilst unwell, has been rising.

SO WHAT DOES INAPPROPRIATE MEAN?

So back to the original point: I think the trusts concerned believe ‘inappropriate’ to mean the police using section 136 where a mental health nurse may not have recommended or requested it.  Of course this doesn’t actually mean that police officers actions were inappropriate!! … back to the two bullet points above, what does inappropriate’ mean unless it is illegal detention, or detention that should have occured under other law?

But an officer acting lawfully and properly where they may not have needed to do so, if only the patient could be referred to mental health services more or less immediately is not ‘inappropriate’.  It’s like debating a mental health nurse defending themselves by the use of force; the fact that when a police officers turns up it won’t be necessary because the officer will protect the person, use force and arrest the offender, doesn’t mean that the nurse is acting inappropriately by defending themselves lawfully.  But they would be acting inappropriately by defending themselves unlawfully – through excessive force, for example.

Of course it’s really easy to construct a narrative about how the poor police keep stuffing things up in mental health: we can point to the deaths in custody, the various IPCC inquiries and other complaints and legal cases.  Even the MS v UK case (2012) was presented by the media as being the police treating people appallingly when in fact, it was a legal action against the Mental Health trust for not expediting the admission of acutely ill psychiatric patient.  We have seen deaths in custody where the NHS have effectively wiped their hands of some patients who were at that time in their care – including where various statutory guidelines have been breached – and then had to watch as the police officers who were left with it gripped the rail in a criminal court.

So is whilst I’m pleased that someone is attempting to articulate what street triage is actually for – I’ve previously complained that no-one has articulated a particular vision or aim – I’m concerned that the narrative re-writes a significant part of the problem:  mental health services are insufficiently accessible and flexible to those in need, especially those already known to secondary care services.  As a consequence of this, many vulnerable people and mental health related demands drift not only to the police, but also to the ambulance service, and we then see that outcomes are not consistently what mental health services would hope them to be.

Is anyone actually shocked at this?! – that if you place a police officer in the position of a mental health professional and give them almost no background information about the person they’re dealing with, that they will be risk averse about the situation by comparison?  It seems perfectly predictable to me.  But if we had an NHS system that was accessible to those who want it, largely on the patient’s terms, then we often wouldn’t have to put police officers in that position in the first place.

This is what street triage is teaching us as the results start to emerge: that if you simply get a mental health nurse to interact with the person in a timely way, that largely does the trick.  So why don’t we just make mental health nurses and their services accessible – able to call on police support when needed and vice versa?

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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

sunrise

Personal Responsibility

I’m going to have to be careful about the tone of this one: it just mind end up sounding a bit like a lecture or a telling-off!  And I should be clear that this post is not just aimed at professionals in policing – what I am about to say is of applicability to anyone who has to deliver their profession within the constraints and opportunities of our mental health and capacity laws.

So whilst trying very hard not to sound too much like Mr GILBERT from the Inbetweeners, here goes —

If you are a professional reading this, you will have taken many decisions in your career which are, fundamentally, legal decisions.  Section 136 MHA detentions; decisions about whether to grant leave under the MHA and recall a patient from it; the application of the Mental Capacity Act or issues around the application for and execution of warrants.  There are countless other examples.  Of course, the origins of these decisions may well be based on practice judgements, health and safety considerations or the attempts to prevent harm but as soon as you get into this territory you will come up against legal considerations. So we need to know the law.

So here’s the rub: we actually have to know the law, which means we might have to study it. Here’s another rub: whether or not we have a training course on offer, we might still have to know the law, which means we might have to study it. Finally, here’s a real spoiler: whether or not we know the law and whether or not you have studied it, you’re still accountable to it. Ignorance is no excuse, etc., etc..

STANDARDS OF KNOWLEDGE

My personal view, is that the standard of legal knowledge across the professions is actually quite shocking.  I am prepared to be so blunt because I actually don’t think this is the fault of individual professionals.  I know that I had my views early in my career about police training, but I have subsequently come to think that legal training within various mental health professionals is far from great.  The only real exception I make to this generalisation is the training given to AMHPs, because they are legally warranted and professionally examined on the Mental Health Act.  It doesn’t prevent the occasional myth pervading that professional group, but their legal knowledge is usually spot on.

I’ve noted a few times on previous posts that I get loads of queries via social media or email about mental health law each week and and most of them are really quite basic. “What is a s37 patient?”; “Have I got a power of entry for this situation?”; “I had a job the other night, whose responsibility is to do this?”

Of course, some questions are more elementary for some professionals than others. A while ago medium secure unit in another area to mine reported a ‘voluntary’ patient missing and told us “The Secretary of State has issued an order for his return to this hospital.” This information is actually very confusing about the legal status of this patient and what, precisely the police are allowed to do if or when they find the man.  It seemed to me that there could be contradiction or confusion within the request.  Since the local police area were asking officers across the force area, including mine, to attend various addresses and search for the man, I asked the duty inspector for the hospital’s area to enquire of the reporting nurse, “We’re just trying to clarify police powers here: is this a conditionally discharged patient and is this ‘order’ you’re on about a warrant from the MoJ under s42(3) of the Act?”

Silence on the phone line.

Now this probably won’t mean much to your average response officer as conditionally discharged patients being recalled is so comparatively rare that most officers will go a whole career without encountering the situation – it’s only the fifth or sixth that I’d ever been connected to in the real world.  Nurses working on medium secure units will see this far more frequently and as they are an important link to ensure that the police are properly briefed on these situations, it’s important they understand their powers.  Most crucially, the word ‘voluntary’ should never have been used in this context: the police have no powers over voluntary patients, unless we encounter them in public places and feel that section 136 should be applied. So can you imagine if this man – who it turned out had been a serious sex offender leading up to his hospitalization – were found by the police in a private address (where they would have no powers) and left there because of confusion as to his precise legal status?  Imagine the horror if he offended after police contact with that opportunity to re-detain him having been missed?!  It’s too awful for words.

It turns out that our guess was correct: he had previously been in hospital as a restricted patient and then conditionally discharged under s42 MHA. For whatever reason to do with his care, he had been recalled to hospital and would again become a restricted patient.  So at last we understood what we could and couldn’t do.

This is not a knock at an individual nurse tasked with phoning the police: it is just the more potentially consequential tale from the last few months to highlight the point. There could have been the story of the woman who had been assessed under the MHA and an AMHP had applied for admission to hospital. She had not travelled to hospital on the night of the application and the following day, staff attended her home address to convey her to hospital and she refused to open the door. Could the police just force entry? …. not with a warrant we can’t, no.  There could have been the one about the police being asked to physically coerce the Community Treatment Order patient back to hospital before anyone had served a recall notice.  The list goes on.

The police are potentially worse: perhaps you’d expect that because although mental health is core police business we know that we’re not quite there yet with the provision of training.  This week alone, “What’s a s37 patient?”, “Can we force entry to re-detain a s3 patient?”, “Can’t we just use s17 of PACE instead of getting a warrant?”.

The list goes on – legal training all ’round.

PERSONAL RESPONSIBILITY

Here is a list of resources to help, but you might have to read and internalize them! —

  • What do all the sections mean? - each important section of the Act, summarised into one or two sentences.
  • Quick Guides – covering very common and some not-so-common scenarios under the MHA / MCA.
  • Knowledge Check - one post which summarises into around 500 words the most crucial information.
  • But you might have to actually read it and internalize it! – try doing it as an act of studying, rather than trying grab information at jobs when pressure is on.

I was remembering recently that the police legal syllabus doesn’t include very information on mental health. The Blackstone’s Manuals (2015) don’t include more than passing reference to the Mental Health Act.  They certainly don’t include detailed knowledge of the Mental Health or Mental Capacity Acts into the legal syllabus that is the basis of the first part of both the sergeants’ and inspectors’ promotion exams.  The examination is based upon surveys of operational supervisors as to what knowledge is needed and yet mental health doesn’t feature at all, despite it being daily business!  I would estimate I get several dozen queries a week about what different legal structures mean or what police powers are implied.  I can’t imagine how many officers with such queries don’t raise them.

The hope behind the above resources was that they would allow quick reference about the sections of the Act and what those sections mean officers can do.

We have seen that the police are only going to be as good as the information they are given. Most MHA related scenarios for the police are not instigated BY the police – the obvious exception being section 136 MHA which most officers understand pretty well. Otherwise, the police are almost always acting in support of or on behalf of mental health professionals who will need to ensure police officers are properly briefed to be able to act quickly, professionally and legally.

This is important stuff and it may well mean that each of us needs to spend at least a couple of hours (or more!) actually reading the law itself, taking personal responsibility for ensuring we are well positioned to discharge our responsibilities and to work in partnership with each other.

Over to you!

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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

Police

Voluntary Attendance

This post is about trying to ensure a non-prescriptive framework for how police officers should consider whether or not to detain someone under the Mental Health Act when it is legally possible to do so, as opposed to helping people access relevant services without detention.  So it is about two, frequently opposing philosophies: the principles of autonomy from the least restriction and of security from necesary control.

We know that where (UK) police officers encounter individuals who actively want to access some kind of healthcare support for their mental health problems, they traditionally have four options.  They are not always available because legal powers vary between public and private places and because 24/7 Crisis Team services usually only respond to patients already receiving mental health care.

Nevertheless, the four options are —

  1. Advise the person to contact their GP (primary care), in due course
  2. Advise the person to contact their MH CrisisTeam (secondary care), if one is available
  3. Assist someone is accessing Accident & Emergency (urgent, unscheduled care), more or less immediately
  4. Use legal provisions in the Mental Health Act 1983, if appropriate.

It does get us into all manner of problems where we think something needs to happen straight away because you have to decide whether to use the Mental Health Act in order to remove someone to a place of safety or whether to point them towards A&E or accompany them there.  This is a remarkably complex decision, as the rest of this post should explain.  It is made difficult by some important principles of law that creates a tension for the officer who might detain someone: a tension which you could almost always argue remains unresolved no matter which decision is taken.

NICOLA EDGINGTON

GreenwichThe most high-profile example of this decision – at least in my mind – was the decision taken in the case of Nicola EDGINGTON in south London in October 2011.  Metropolitan Police officers had accompanied her to an A&E deparment on a voluntary basis, without detaining her.  It must be said, in the first instance that it was questioned whether the officers could have legally detained her at all, having first encountered her in a private place.  That said, Nicola having exercised a free decision to move from that private place to A&E she then attempted to leave and the argument was suggested that Metropolitan Police officers should have detained her under s136 MHA at that point, particularly because she had a previous history of homicide and everyone accepted that she was worried she may kill or hurt someone.

She was not detained.  Having then remained in A&E for further mental health assessment she was admitted to a psychiatric unit as a voluntary patient and moved to a ward.  She then absented herself from that location and travelled to Bexleyheath where she attempted to kill Kerry CLARK, and then did kill Sally HODKIN.  I have previously written about this case if you want more detail on it and read about the IPCC investigation that looked at this decision-making.  Suffice to say, I’m now waiting to read the independent review of Nicola’s treatment and care when it is published by NHS England.

So we know from this and other cases, that police decisions to leave individuals in healthcare settings who may be a risk to themselves or others is precarious business.  But an ‘err on the side of caution’ approach directly conflicts with principles of handling people in the least restrictive way.  The ‘least restriction’ idea is a core principle of the Mental Health Act Code of Practice, outlined very early in that document and referenced through-out.  Any conversation about a decision to use mental health law – or about the particular manner in which it is applied – doesn’t last very long before officers are reminded about the need for least restriction.  It is an important part of the ethical application of the MHA, that restriction and restraint is only used when it is absolutely necessary to do so and the no more coercion and control is used that is absolutely necessary.  Anything less could represent a human rights violation.

So at the heart of this dilemma and the method by which any tension is managed is the following question:  Why would a police officer legally detain a person in order to compel that person into a process that they are willing to enter?  And the answer for me lies in the definition of the word ‘necessary’ and in the ability of services to make sure in some case that someone not only enters a process of assessment, but also finishes it.

WHAT DOES ‘NECESSARY’ MEAN?

Police officers are used to considering the word ‘necessary’ because every arrest made under criminal law carries with it the need for a necessity test, under section 24 of the the Police and Criminal Evidence Act.  When I joined the police, we used to talk about ‘arrestable offences’ and if you were suspected of having committed one you could be arrested for it and that arrest would be lawful.  The end.  So if you knew that an allegation of assault (ABH or GBH) had been made against and you turned up to the police station to have your say about the incident or help the police with their enquiries, you may be arrested.  This changed some years ago and it is now a legal requirement for the arresting officer to show why an arrest was actually ‘necessary’, against established legal criteria now made plain in the Act.

So we understand about ‘necessity’ and it’s implied and inherent links to the least restriction principle.

Let me amplify these points with real examples:

Officers encounter an elderly man who is confused and disoriented.  Some enquiries reveal that he is almost certainly a missing person from a neighbouring police area and he is out in winter, obviously very cold.  An ambulance turns up at the officers’ request and checks him over they state that they need to take him to A&E to get him checked over medically and the police area from which he is missing are telling his relatives he’s been found and his wife and son are now heading to the A&E concerned.

The man is happy to go to A&E and not resisting at all, saying he’d welcome a cup of tea.  The grounds for s136 were undoubtedly met:  he was “believed to be suffering a mental disorder, in immediate need of care in his own interests.”  This is one version of the definition of s136.  Was he detained? – NO.  Did he need to be? – NO.

Police officers encounter a young woman in her twenties who is asking for help and saying that she “needs to be sectioned”.  She wants to be assessed and admitted to hospital for a period of time and has a history of suicide attempts, including a serious overdose and significant injury after self-harm.  She has also been considered a high-risk missing person after having previously self-presented to A&E departments and having left in a suicidal state before being the Crisis Team arrived to assess her needs.

Although the woman is happy to go to A&E on a voluntary basis, there is the potential that this decision could change, especially if there is a protracted wait for the Crisis Team.  Should she leave, there could be a significant risk to her wellbeing based upon background factors.  Could she have been detained? – YES.  Was she detained? – YES, because this ensures she remains detained pending the assessment outcome and ensures her various legal rights are in place.

In this latter case, if officers had not legally detained her under the MHA, she may either have been left at A&E and again become a potentially high-risk missing person should she leave; OR officers would have still remained in hospital to ensure she didn’t leave hospital, not having legally detained her.  So she would have been detained in fact, but not in law - and I’ll guess that no thought would have been given to her legal rights under s131 MHA or PACE.

VOLUNTARY ATTENDANCE

A&ESo you’re the police officer at the incident and let’s assume that all four options mentioned at the start of this post are open to you as possibilities:  you can advise contact with the person’s GP or Crisis Team; or you could offer to assist someone to access A&E or you could use section 136 of the Mental Health Act.

For me, the first three options are only available where risks and threats involved mean that we need to be sure that someone will complete the process of assessment.  This may include suicide risks, someone who has taken an overdose, someone who has previously sought help and then disengaged before being seen in circumstance of some concern that need to be avoided.

Of course, something like street or telephone triage with mental health services may render an instinct to detain null and void so any decision taken must be based upon the fullest available information.  But necessity needs to be judged in terms of whether the risks of a person not remaining engaged to complete an assessment are so serious as to need negating.  If they are not so serious, then principles of least restriction should mean that sign-posting, referral or voluntary attendance are perfectly proportionate responses to incidents.  We all accept and understand that physical injury or illness does not always require immediate A&E attention and so it is true of mental health issues.

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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