I realised early on that a Code of Practice to an Act of Parliament was taken very seriously indeed. There are many Codes which affect the police, PACE alone has several: Code A for stop / search; Code C for treatment in custody to name just two of the more important ones. There are more for PACE and others for other Acts. I’m not pretending they’re ALWAYS complied with, I’m suggesting that supervisors examine breaches when they see them; that structures exist to LOOK for breaches; and there’s a reaction even if it’s just a quiet word. It is often more.
Codes of Practice are issued by the relevant Secretary of State under an authority granted to them by an Act of Parliament – each represents statutory advice and direction on the matters within and are serious authorities. Although they can be breached you need “cogent reasons” to do so and must be able to defend the breach. Otherwise, you must do what it says.
It is against that backdrop that I first read the Code of Practice to the Mental Health Act.
Once upon a time I handled a complaint where the police in AreaA had arrested someone under s136 MHA within AreaA’s geographical boundaries, the man being resident in AreaB. They removed him to AreaA’s A&E because of a head-injury sustained prior to arrest and contacted AreaA’s psychiatric Place of Safety (PoS) once he was deemed medically fit for onward transfer. AreaA PoS would not agree to accept him because he continued to be aggressive and to head-bang anything he was allowed to stand near. They wanted him removed to the cells.
Rather than immediately do this, the police officers contacted AreaB’s PoS and pointed out that he was a mental health patient known to them and they agreed to have him taken there for assessment. As that was being sorted, however, he started again to head-bang and managed to re-open the head-wound. The police took him to AreaB’s A&E on direction of AreaB PoS staff and his injury was treated again. Eventually, he was sectioned into a MH unit in AreaB.
Following family representations to both the police and the NHS about the overall management of the incident and the amount of bouncing around, I was quite surprised to hear NHS colleagues say: “This man was moved about too much because the police should NEVER have taken him to [AreaB]. This is a breach of the locally agreed policy and he should have gone to the cells in [AreaA].” Apparently oblivious to the point that if had we had done so, he almost certainly would still have re-opened his head wound and back to AreaA A&E we would have gone, it is also correct to say that this action would have breached para 10.22 CoP MHA.
This CoP paragraph outlines an expectation that following an inability to access the ‘first choice PoS’, there was a legal expectation upon the police to consider alternatives before resorting to the cells. Nothing in law prevents the police ‘improvising’ their way through problems of NHS access by contacting the man’s own home area PoS and asking – not ordering! – those NHS professionals if they would be prepared to allow him to be assessed there. They were, at least until his re-aggravated his injury.
BARRISTER IN CIVIL ACTION: “So officer, prior to condemning my client to the cells of your police station, universally regarded as the most inappropriate place of safety; what alternatives did you consider?” … POLICE CONSTABLE: “Errrr, the NHS told me to do it.” We can imagine the fun a barrister could have with that.
Action should be governed by the patient’s needs; not the organisational convenience of the NHS – or the police, for that matter – and it certainly should NOT deliberately breach a Code of Practice issued by Parliament after relevant stakeholder consultation across the nation.
Apart from anything else, how did that policy get through legal checking?! … just asking.