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Tough Decisions Ahead Road Sign

Decisions, Decisions!

In these last few weeks, I’ve been getting to talk more about police approaches to mental health incidents with a wide variety of people. Far more than once I’ve found myself being asked about street triage and how we can reduce the usage of section 136 MHA. It seems in the minds of many, that this is a worthy objective in its own right, but it also seems important for various other reasons – making it easier to ensure health based place of safety when the power is invoked. It is my strong view that we do need to look more closely at how section 136 of the Mental Health Act is used – there is too much unexplained inconsistency that seems likely to arise from unintentionally varied approaches to its use.

This post is longer than the average – I’ve decided to run with it anyway because it’s such an important issue, in my view.

To be fair, we’ve known for some while that police forces use section 136 very differently – the IPCC report (2008) showed this to us all and I’ve seen it again in the last two weeks. How else do we explain two police forces using this power roughly the same number of times per year when one of those forces is three times the size of the other?

Her Majesty’s Inspectorate of Constabulary released their report “Core Business” last week in which they featured a couple of pages on mental health issues. This reporting was amidst a section that focussed upon reducing inappropriate demands on police officers to free up their time. The report highlighted street triage in Nottinghamshire Police, mentioning that between January and October of a given year that force used s136 a total of 909 times. So at 91 uses per month we could very roughly estimate usage per annum at around 1,100 times. This is roughly the same as West Midlands Police (before they introduced street triage) and so I looked up how big the resident populations and officer establishments were.

West Midlands = 2.8m population with c7,200 officers

Nottinghamshire = 1m population with c2,500 officers.

And yet, similar usage of section 136 of the Mental Health Act. So are people in Nottinghamshire almost three times as unwell as those in the West Midlands? – of course not. Is the West Midlands a bastion of affluence, wealth and employment in a way that Nottinghamshire is one of poverty, deprivation and destitution? – of course not. There will be differences – perhaps in the funding for mental health services, or the way in which those services have evolved; and those police services will have evolved practices of how they discharge their responsibilities – but that surely can’t account for such a differential use of this one legal power?!

In the conversations I’ve had this week, it seems that we do need to do more work on how police officers approach the decision to detain, where they encounter people and think about the potential of the Mental Health Act to provide that intervention. We need to break this down according to two specific problems, as I see it -

1.  What to do when someone is intoxicated and threatening suicide or self-harm. (Probably more important to think about this the more drunk that person is.)

2. What to do when someone is also committing a criminal offence whilst intoxicated.

PANORAMA

Do you remember the BBC Panorama programme from September 2013? It is unfortunate that it’s no long available on iPlayer but it involved the BBC filming in Hampshire Police custody for a whole week in order to focus on cases where ‘mentally ill’ people were brought into custody. They were ostensibly attempting to highlight how bad it was that people could not access a health-based place of safety (PoS) and to be fair, there were some fairly unusual, highly disturbed behaviours shown amongst those detained by the officers that week. But the programme showed a succession of people who had been arrested for various substantive offences like assault, criminal damage or public order offences.

So firstly, the premise of the programme was massively undermined by the examples they chose to make the point. People arrested for criminal offences do not ever go to a health based PoS – they go to custody, which is exactly where Hampshire Police took them. Various behaviours that caused officers on that programme to effectively plead that it was ‘obvious’ the detainees were suffering from mental health problems, were behaviours that were wholly absent once drugs and / or alcohol had worn off. Indeed, various detainees were shown the next day leaning on the cell door, drinking coffee and making remarks of regret about the previous evening in a fairly sober way, somewhat surprised at what they’d done.

This was true even for some of those arrested for assault who were known patients of the local mental health trust. It seemed that behavioural disturbances occurred for many after ingestion of substances – a point that has been made for many years by mental health professionals I’ve known. Attempts to identify causative, contributory or coincidental factors during crisis incidents is bedevilled where substance use or abuse is involved.

IMPLICATIONS FOR SECTION 136

Imagine you are a police officer on patrol: you are called to a bridge where a young man is described as having climbed onto the adverse side of the barrier and appears to be threatening to jump onto the road or railway line below. The first officer there tries to engage him in conversation and others started blocking roads or requesting traffic or trains to be stopped. Someone starts trying to find out what we can learn about the individual concerned. The officer talking to the man infers intentions towards self-harm or suicide and this triggers considerations around potential use of the Mental Health Act – if they can talk him back over the barrier.

Eventually, the man is persuaded back over the barrier and the officers now have a decision to make. Do they detain the man under any legal authority and if so, which one? For those who are not police officers, here are the options —

1. Do nothing in law – provide help, signposting or any number of other things that may help, but don’t invoke the law to detain him.

2. Detain the man under the Mental Health Act, because he was threatening to jump so he must be or may well be mentally disordered, right?

3. Detain the man for an ‘on or over’ offence? – it is an offence (s22A of the Road Traffic Act 1988) to put yourself on or over a road, causing a danger to road users; it is an offence (s34 of the Offences Against the Person Act 1861) to endanger railway users.

4. Detain the man for a ‘public order’ offence – this could include drunk and incapable, drunk and disorderly or drunk in a public place; equally it could include disorderly, threatening or violent behaviour under the Public Order Act 1986 depending on which of those were appropriate, if any.

How do you make good decisions in ambiguous, uncertain circumstances?!

DECISIONS, DECISIONS

Can we agree that Option 1 is out-of-order? – we’re not going to do nothing, because we can perfectly well anticipate that if we don’t detain him, we’ll end up back here in half an hour doing the same thing or that if he were merely sent on his way home – even in the charge of a friend or relative – he may still come to some other form of harm. Enough examples of both exist to mean I’m certainly not going to choose nothing – if you’ve brought a major road or railway line to a halt, you’re going to be detained to make sure it can’t just (immediately) happen again.

So we now have to choose from Options 2-4: between detaining him under the MHA or detaining him for something else. I have the sounds of mental health professionals I’ve known ringing in my ears here: the fact that he is on the wrong side of a bridge barrier and appears to be threatening to jump is NOT enough, on its own, to decide whether or not someone is likely to have a mental disorder. Remember, plenty of people who are not mentally ill and never have been, take capacitous decisions to end their lives. We need to see wider context and this includes consideration of drug or alcohol use as well as any other background information that may be accessible. Not easy on the top of a bridge at 11pm, but what is available should be considered.

So imagine that this young man tells you his name and it’s obvious he’s slurring his speech quite considerably. You manage to contact the CrisisTeam and ask whether he’s known to services – the answer you get could and should really influence things here. What if he’s not known at all and has never been seen or assessed? – or; what if he’s an established patient who recently missed an appointment with his CPN?

How does this alter the decision?

Well I would argue, that if you establish that he’s well-known to services and he recently missed a care appointment, section 136 is now well in play because of the overall context. I would think this whether the man is intoxicated or not – he’s known to have mental health problems and is on a bridge threatening to jump. All of that fits the definition of section 136 without difficulty. The only practical problem, will be something that’s not relevant to what I’m getting at in this post – where do we keep this person safe until such times as the alcohol has worn off and the assessment can occur? – that’s another problem for another post.

If he’s not known to services and there is no other objective information to hand suggesting a mental health problem, I would argue that the considerable intoxication is a barrier to s136 being appropriate. I would be detaining that man for the substantive criminal offence and subject to any immediate medical needs, be taking him to custody. Once the alcohol is worn off, he can still be seen by mental health services if the police healthcare staff feel he needs an MHA assessment. Panorama suggests – and my experience and other feedback tells me – that this will be the case only very rarely.

DIFFERENT SITUATIONS

Of course, situations vary – you could have the one where a man is carrying a knife or possessing small amounts of drugs when encountered after reports of someone ‘acting bizarrely’. Should he be arrested for the possession offence, or detained under the Mental Health Act? Well in these examples – assuming he’s not waving the knife around and threatening people with it – we have what you might call a victimless offence. If officers suspect a mental disorder or have good information to that effect, nothing prevents his mental health being prioritised and section 136 being used. Should that assessment reveal to an officer’s surprise that the person is not mentally disordered, then when section 136 is brought to an end, criminal justice considerations can still arise around the original offences.

So what am I saying here that I suspect is not happening in areas with high rates of section 136 usage, and which have low rates of correct identification of vulnerable people with unmet mental health needs? I’m saying that you do this, whenever multiple detention options arise -

1. Arrest the person for the criminal offence, unless -
2. The offence is victimless or trivial;
3. The victim has not called the police to report a crime but to secure help for someone at risk;
4. In all the circumstances there are good reasons to suppose mental health is the most important issue to address first.
5. A greater leaning towards the MHA rather than an offence wherever children are involved.

And if officers keep in mind that behaviour is often best by drug or alcohol use where that is known to have occured it is probably best to stay clear of assumptions about mental illness – unless they have objective, corroborating information suggesting a history. Apply this approach to detentions and you will find you’re not ignoring woundings, robberies and rapes by using the MHA; you’re not criminalising vulnerable people for minor offences when health and wellbeing should be prioritised. It also means you’ve stacked your deck in such a way that means if this approach has given rise to the few cases where it isn’t appropriate, you can still reverse your decision when more becomes known.

The old Code of Practice to the Mental Health Act (1999) said section 136 was not a substitute for the use of substantive police powers. This was wise advice, something I regret was removed from the latest Code (2008) and which I’ve suggested should be reinstated in the new one (2015). But meanwhile, the above approach is something that every police officer in England and Wales could apply now – and in some areas, I’m convinced based on my experience and my research, it would significantly lower the use of section 136 and ease pressure on our mental health system. It would make it easier for the NHS to provide those services we want to see, like health based place of safety and street triage services.

So why don’t we just do it? – by briefing and leading our staff to this effect?  Every police officer could choose this approach today.
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The Mental Health Cop blog

Badgewon the ConnectedCOPS ‘Top Cop’ Award for leveraging social media in policing.
won the Digital Media Award from the UK’s leading mental health charity, Mind
ccawards2013 – won a World of Mentalists #TWIMAward for the best in mental health blogs

was highlighted by the Independent Commission on Policing & Mental Health
– was referenced in the UK Parliamentary debate on Policing & Mental Health
was commended by the Home Affairs Select Committee of the UK Parliament.

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Designing Training

So here’s a knotty one – on the subject of police training.  We know that the police need (more) mental health awareness training because Lord ADEBOWALE told us so in a report with receommendations that were accepted after publication.

So it gives rise to a list of questions -

  • How long should the course be?
  • Who attends it?
  • What should the course contain?
  • How will it be delivered?
  • Who would deliver it?

In reality there are multiple audiences amongst the police – if an inspector with no previous background in mental health policing and partnerships were to be promoted to Chief Inspector and be told to lead on the issue for their area, what would they need to know to be effective?  Whatever the answer to that question, it would probably be different if we tried to address the needs of a frontline operational sergeant running a response team.  It would be different again if you were an officer with some interest and experience who was newly posted to a street triage team or a custody sergeant working where a liaison and diversion scheme was just being set up.

So can we agree: the police service needs a suite of options – perhaps modular and adaptable – capable of being delivered in a range of ways and that at least some of this needs to involve classroom inputs and partner organisations?

But what problem are we trying to solve – what is it that police officers don’t know that we need them to know, which we would hope effective training would address? What is it that we want them actually do differently?

PLAN A and PLAN B

One of the most difficult things of all will be to determine the specific legal training in circumstances where we currently know that the requirements of law and the codes of practice are not necessarily adhered to in all areas.  It’s all very well running an input on AWOL patients and pointing out to officers that para 22.13 states that where a patient’s location is known it is for NHS services to re-detain and return them to hospital. What are the implications of training that to police officers, if some of them work in areas where the NHS argue they don’t have resources or capacity to recover missing patients? You may think that it will empower police control room staff to ask the correct questions to allow them to say, “No – that’s a matter for you to undertake” where necessary. But many officers know that there can be other reactions from staff on wards who are physically not in a position to leave a ward or call upon colleagues in other mental health teams to undertake those jobs on their behalf.

So we have to think this through!

It’s all very well lining up the lessons learned from IPCC investigations and Coroner’s inquiries before drawing conclusions about what the police need to do differently but some change may involve the need to adapt partnership approaches.  How do you provide training to protect officers and vulnerable people that takes account of all of this, if certain aspects of partnership working is yet to change or is struggling to do so?  The question is not abstract:  training around the proper response to a mental health emergency involving acutely disturbed behaviour – possible excited delirium: amidst restraint by several officers I can of some areas of the UK where little resistance would be met some NHS areas and it would be hotly contested in others.  How do you train for that, bearing in mind that it is possible to highlight several force areas that cover multiple MH trust and acute areas where the NHS approach is not consistent?  I must stress: I’m not trying to particularly knock the NHS  by saying this! You could say – and I have said! – similar things of the police on various issues in this interface. These are the difficulties of partnerships and of trying to get national consistency on important issues amidst highly devolved local services.

Is training and an improved, raised awareness of legal and clinical risks something which should be trained for it’s own sake in the hope of improved awareness driving change; or is it irresponsible to suggest a course of action that may set in train a conflict between operational officers and colleagues in the NHS?  The reality is it would do both, because partnership arrangements, structures and the role played in different areas by ambulance and A&E services varies – or at least the capacity and involvement of them does.

PARTNERSHIP TRAINING

So what about multi-agency training?  Getting police officers into rooms with mental health nurses, AMHPs and psychiatrists – not to mention getting into rooms with paramedics with whom the police work so closely at a lot of mental health affected incidents.  What is best delivered to police officers alone and what should be delivered in a partnership setting?  All four of the above bullet point questions above apply thereafter and you would have to be careful to make sure all of this didn’t involve significant duplication.

Of course there is also a practical reality to be observed:  even if you answer the above questions and conclude that just SOME officers are going to need as comprehensive a set of training opportunities as we can possibly offer – force mental health leads, street triage officers, etc. – it still doesn’t address whether or not there is an appetite to allow the time for it to happen. Indeed one thing that has been discussed for years is whether Britain would benefit from the adoption of a ‘Crisis Intervention Training’ model that we have seen in the United States, Canada and Australia? So many reported benefits to this approach to policing and mental health but nowhere in Britain has trialled it. Do we need to design what that would look like, in outline, to help convince one senior officer that it would be worth seeing whether it improves things in a British setting.

So the major question is – do we train for the world we are actually policing or does training have a role in setting standards that could or should be delivered?

This is what we now have to wrestle with to determine what good training for the police will look like.  If you have a view – please leave a comment below as this post really is a part of my attempt to gathering different views and ideas to build a balanced perspective.

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The Mental Health Cop blog

Badgewon the ConnectedCOPS ‘Top Cop’ Award for leveraging social media in policing.
won the Digital Media Award from the UK’s leading mental health charity, Mind
ccawards2013 – won a World of Mentalists #TWIMAward for the best in mental health blogs

was highlighted by the Independent Commission on Policing & Mental Health
– was referenced in the UK Parliamentary debate on Policing & Mental Health
was commended by the Home Affairs Select Committee of the UK Parliament.

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Deprivation of Liberty Safeguards

I once gave a talk at a conference where another speaker was talking in a general, but somewhat excited tone about the Mental Capacity Act 2005 – he said it was “the worst example of legislative drafting in over 30 years!”  It is very easy to see why you may think it because the Act itself received Royal Assent in 2005 but had to be substantially supplemented in 2007 when Deprivation of Liberty Safeguards (DoLS) were introduced to it by the Mental Health Act 2007.  A report by the House of Lords in 2014 stated that this legislation was not fit for purpose and the Government should look at it again – their response to this report was to outline that they do not believe there is a flaw in the legislation as framed (p29).

So in the meanwhile, we have to get on with it and this post is about one particular, very specific legal issue: whether or not the police have any ‘power’ when a patient who is subject to an order made under DoLS can be forcibly returned.  However, just in case you’ve not heard of DoLS, let me explain a couple of basic things and I’ve kept this really superficial – I’m aware of the greater complexities but they tend to be beyond the needs of police officers and paramedics.

GENERAL BACKGROUND

The Mental Capacity Act as a whole is concerned with providing a framework by which to decide what is in someone’s best interests where they lack the capacity to decide for themselves.  For emergency services, there is something of a tool elsewhere on this BLOG to help you form a view about that where an urgent situation obliges you to do so – the “ID a CURE” test as I called it.  A best interests assessor (BIA) is a trained professional who will take longer term decisions, in slow time about things like whether a DoLS order is required to place an elderly patient in a residential care home where they have become unable to look after themselves in their own home, for example.

Where a BIA reaches a view that a DoLS order is required – they would need to have a Doctor’s confirmation that someone is suffering from a mental disorder (broadly defined) – they can instigate it.  Sometimes this is referred to as a Standard Authorisation and it can last for up to twelve months in the first instance and should be regularly reviewed.

CHESHIRE WEST

Earlier this year, the Supreme Court had to reach a verdict in the case of Cheshire West – this case concerned a group of young people from both Cheshire and Sussex who were living in supervised accommodation because of their learning disabilities and were not at complete liberty to exercise autonomy.  They were not permitted, for example, to go to the shop as they pleased or to visit who they wanted without consent and supervision of staff.  The various hearings in lower courts led to much debate about what a ‘deprivation of liberty’ actually was and the Supreme Court had to determine this.

In a very memorable phrase, Lady HALE declared that “a gilded cage is still a cage” ruling that however professional and excellent the kind of accommodation and care that these young people received may be; and however much effort was expended making their lives as unrestricted and enjoyable as possible, if they could not – ultimately – come and go as they wished then they had suffered a deprivation of liberty.  As such, BIAs are going to have to get busier or health areas will need far more of them in the opinion of many.

I wrote a blog in the week following the Cheshire West ruling in which I anticipated a rise of DoLS related issues for the police: whether that was around requests to convey some patients to hospitals and care homes; or whether it was connected to what the police may do if someone subject to a standard authorisation was reported missing or refused to return to the place specified in the order.  We know that occasionally DoLS related requests came up so if we are now going to see more DoLS orders, we will see more police related requests in relation to it.  Surely?!

DETENTION AND CONVEYANCE

So do you have a ‘power’ to convey or return a DoLS patient to a care home for example, if they refuse to return from visiting a relative they had permission to see or if you find them after they were missing?   Best of luck trying to find a specific answer to that on the internet!  This post comes around because of my good friend from West Mercia Police, Inspector Ben HEMBRY, ringing me up on Monday asking the question and it occured to me that I had not yet written a post on this.  And yet since Cheshire West, I’ve had this question several times – I only ever received it once before this key ruling!

Yes – there are good grounds, should it be necessary, to argue that minimal force may be used to return someone to a hospital or care home who is subject to a DoLS order.  Although it was always my view that officers, paramedics and others could rely upon the protection of sections 5 and 6 of the Mental Capacity Act in their efforts to return someone, I came across the case of DCC v KH (2009) whilst researching this piece.  In it, the applicant (presumably a local authority) sought an advance declaration from the court that reasonable force could be used, consistent with the principles of the Mental Capacity Act 2005, in returning someone to their determined place of residence.  Those representing the man concerned argued successfully that there was no need for such an order because such possibilities were covered by the Act as it stood.  The district judge published his transcript of this telephone hearing and whilst this is not a stated case as such, it is about the only legal view I can find and it doesn’t appear to have been contested in the years since.

As with everything related to the MCA, you have to ensure that you are acting with regard to someone who lacks capacity and that you are acting in their best interests, in the least restrictive way.  Obviously, a DoLS order demonstrates that a Doctor and a BIA have taken care of the first part for you, so it’s about police officers, paramedics or others determining whether something is in the best interests of a patient and going about the application of the use of force only where absolutely necessary, using minimal force in the least restrictive way.

You will have to judge that, case by case and context by context, but should you form the view that you need to, the ability to use force to safeguard people is ultimately capable of defence according to sections 5 and 6 of the Act.

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The Mental Health Cop blog

Badgewon the ConnectedCOPS ‘Top Cop’ Award for leveraging social media in policing.
won the Digital Media Award from the UK’s leading mental health charity, Mind
ccawards2013 – won a World of Mentalists #TWIMAward for the best in mental health blogs

was highlighted by the Independent Commission on Policing & Mental Health
was referenced in the UK Parliamentary debate on Policing & Mental Health
was commended by the Home Affairs Select Committee of the UK Parliament.