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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.

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Social Media In Law Enforcement

ccawards2013It was revealed yesterday that I have been awarded the 2014 ConnectedCOPS Top Cop award at the Social Media In Law Enforcement Conference, or #SMILEcon as it’s tagged.

This goes once step further that last year when I was short-listed for it.

#SMILEcon 10 has just finished – the first time that the event has been staged outside north America and it was hosted by West Midlands Police in Birmingham who published a press release.

Given this award on the 10th September, I used it to try to highlight World Suicide Prevention Day – I said rather more than I normally do about the extent to which the police and emergency services are affected by stress, depression and anxiety disorders not to mention PTSD.  Having deliberately gone out on a limb in front of various senior officers, I found them really receptive to the essential message about the need to improve our responses as staff sickness levels arising from psychological conditions rises.  I hope this partly arose, as I pointed out, because very similar things could be said and are said about many employers.  It’s about how we shift our whole society’s attitude towards mental health conditions and those of us who live with them.

It’s worth looking at the website as many of the talks given were fascinating – I will forever remember the award winning communications team from the Royal Canadian Mounted Police in New Brunswick who expertly presented on their social media response to the triple murder of their officers on June 4th this year.  I wasn’t the only person wiping my eyes at the end.  I also commend you to the talk given by Chief Constable Simon COLE from Leicestershire Police which shows why executive leadership on social media is vital.

The citation of my award reads -

MB“This award is given to the sworn law enforcement executive of the rank of LT (or its international equivalent) and above, at any worldwide law enforcement agency who has demonstrated significant and sustained executive leadership to further the use of social media and internet technologies in law enforcement. This individual is a risk-taker and a pioneer in his or her promotion and use of social media in policing.  The recipient of the Top Cop Award also gives his thought leadership and expertise freely to others.”

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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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In At The Deep End

I couldn’t be more thrilled to have been given the chance to undertake a secondment to the College of Policing to coordinate their work on mental health. I’m still a West Midlands Police officer, but they’ve loaned me out to help with work that the College needs to do nationally. This is a total change for me, moving from a very frontline, operational police roll overseeing a 999 response team and back to an intense spell of being a Monday to Friday, office boy doing things around policy and procedure, training and guidelines.

I’ve worked on mental health issues twice before, so this being my third posting to this developing and important area of policing and my being hot off the back of such an intense operational posting, I’m keen to help make a difference to how my old team and others like them, can do the best possible for our public. The post at the College now exists at all because of the increased focus that this issue has achieved, in which we see individual forces investing more time and effort as well as the Home Secretary giving this prominence and attention. We are where we are on this stuff, vulnerable people are not being given the best and that means there is LOADS to do!

I started last Monday and in amidst all the boring stuff about finding out where you’re going and how some stuff works in a new organisation, I was straight into the deep end on day two, in London – some months ago I chose to put forward a written submission to the Home Affairs Select Committee inquiry into policing and mental health. A few weeks ago they asked if I would go to London and give oral evidence to the Committee. What an absolutely terrifying honour that was!

WILL I STILL BE BLOGGING?

Many people have asked whether I’ll still be blogging and tweeting?! Yes – without a doubt. It was something that was discussed in the first meeting I had with my new boss and the College recognises the impact that social media can have and I’ve been encouraged to continue. I will be thinking about how to approach it slightly differently – and for the record no-one has asked me to approach anything ANY differently. For the last three years I’ve been blogging in my own time, outside of work and in order to try and chip in and drive and agenda that, frankly, I wasn’t formally involved in. I’m now formally involved in it again as I was before I started using social media, so I may be doing more ‘newsletter’ type updates.

I’ve got to be honest about this job coming about at exactly the right time – because I’ve been running out of things to write about!! I’ve been posting less for the last three months and blog hits have fallen off a bit. I’m still on course to reach 1,000,000 hits by end of next year, but it’s fair to say that the approach probably doesn’t need to change if this is no longer me chipping with ideas or advice that I have to accept people can take or leave as they see fit.

In many ways, this merely reflects reality, doesn’t it?! – there is only so much talking we can actually do! Eventually, we’re going to have to decide what, if anything, we’re actually going to do and then commit to it 100% and crack on with it. A few retired officers who heard my HASC contribution this week contacted me afterwards to say they’d been working on s136 or other issues when they were serving over thirty years ago. We can’t let this happen again.

We CANNOT go on, as we are. And yet as I type this, there are at least three mental health providers in the process of shutting s136 Place of Safety services or have already done so. We need to grab this situation by the scruff of the neck and look at ourselves because there is no reason why the United Kingdom needs to be in the position it’s in – we’re a quite capable with what many people would argue are the best health and policing systems in the world of sorting this out. Right here, right now.

I wrote a few thoughts in a previous BLOG about what I thought the College needed to do for the service. This is now the broadest of outlines about how I’ll be spending my time over the next few months to understand how we can turn that into reality and how the College of Policing can help drive the police service as a whole to a better place.

I’ve asked already on Twitter for anyone, no matter what you’re background angle, to give any thoughts and ideas about what this will be in detail. If you want to, you should feel free to leave a comment on this BLOG post or email me, using the link on the toolbar, above.

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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