This is the first of a couple of blog posts on a particular problem in police custody upon which I have worked for several years in my attempt to find an answer. A subsequent blog will get into the full legalities of police custody on this point, but let me test the water with this:
Where individuals arrested for substantive criminal offences are assessed under the MHA as needing hospital admission, it is occasionally the case that there is (apparently) no bed available in a psychiatric unit. The frequency of this varies from area to area; I know of some who report having this problem only very, very rarely indeed.
It leads to all manner of attempts to find other psychiatric units with availablo beds, sometimes out of the patient’s normal area; sometimes in the private sector. There is a cost to this and some NHS areas are very, very reluctant to go for out-of-area or private sector beds if at all avoidable.
Meanwhile, back at the police station and whilst the bed management nightmare is ongoing, the PACE timescales to which the police must operate when detaining people who are arrested but not charged with an offence start to expire. It brings about a legal urgency which tends to focus the minds of custody sergeants who must at all times be satisfied that there is a legal basis upon which to detain someone.
If PACE runs out, then the MHA must provide a legal basis for detention or the person should be released. Except that releasing someone who is profoundly mentally ill and by definition a risk to themselves, possibly also to others, is utterly unconscionable; whilst keeping them detained without authority could be argued to be one or more of several potential legal breaches, including false imprisonment and a Human Rights violation. You may be able to charge them with a criminal offence, but if you’re only doing it because you cannot immediately divert them to an NHS psychiatric bed, where is the ethical framework at play here?!
I have seen written legal opinion from a barrister and policy reports from the Mental Health Act Commission (now the Care Quality Commission) which says you solve it like this:
- The DR – not the AMHP – has a legal obligation to find a bed for an admission which has been identified as necessary;
- The AMHP has a legal obligation to make applications once the criteria of s13 MHA are satisfied.
- Notwithstanding the contents of Chapter 4 to the Code of Practice upon which AMHPs tend to reply when explaining that they can only make applications to hospitals who are making a bed available; the Code of Practice as we recall is “not binding instruction; nor is it mere advice – it is statutory guidance which must be followed unless there are cogent reasons for departure.”
- Could the cogent reason be, “This person can no longer be lawfully detained by the police, because PACE timeframes are expiring as we speak and the person is too much of a risk [to themselves or others] to be released.”
- This brings the AMHP and DR into a degree of conflict – “Which hospital do you want me to apply to DR?” whilst the DR is not ready to answer that question.
This scenario is addressed in previous reports of the Mental Health Act Commission (now the CQC). Refer to —
1. The 08th Biennial Report – para 4.45; and
2. The 09th Biennial Report – para 2.49.
Although these documents date from the late 1990s, they have never been repealed or superseded from what I can establish. Remember, this is guidance from the statutory authority who oversees the Mental Health Act and their documents are legally reviewed before publication:
- They suggest that where this situation arises, a hospital is chosen from the ‘s140 list‘ held by the PCT and the AMHP makes the application anyway and then;
- Conveys the patient to the hospital where the bed problem is to be managed in a setting where the patient can start receiving (at least some) care in a context of legal detention.
- The ‘s140 list‘ is a list of hospitals who have been identified by the PCT (as of 2022, this is known as the Integrated Care Board) to the Local Social Services Authority (LSSA) as being in a position to receive patients in cases of special urgency.
- PCTs are required to specify these hospitals by virtue of s140 MHA.
- I once wrote in a private capacity to nine PCTs asking them to provide a list under the FoI of the hospitals which they have specified to their LSSAs as being in a position to receive patients in circumstances of ‘special urgency’:
- I got one response and it made no sense at all to my question.
- NB: I am very aware, that the Richard Jones ‘Mental Health Act Manual’ states in the notes to s6 MHA that this approach is questionable.
- I notice he says nothing at all about the interpretation of s13 MHA and very little about s140 – I admit to finding this curious.
- What he stops short of saying, is that it’s wrong.
- What we can all agree is wrong – legally and morally – is a mental health patient in need of admission, being left in a police cell for days, whilst bed management problems are resolved.
Such a scenario unfolded in Greater Manchester Police in 2004 and led to a person who had been arrested for an offence being held in the cells for over 3 days, despite having been identified as ‘sectionable’ after approximately 6 or 7 hours.
That case ended with GMP instructing counsel to seek an emergency injunction ahead of a full Judicial Review for a failure to provide beds / make applications. Perhaps unsurprisingly, by the time their barrister was poised to enter the High Court a bed was found. The IPCC investigated this case and concluded that whilst many illegal things occurred and it was all outrageously unsatisfactory, this had been beyond the control of the police who had a duty to keep the detainee and the public safe – the situation had arisen from a failure within the NHS. The IPCC concluded that the amount of representations made by the police at all levels up to Chief Superintendent to all levels of the NHS showed they had done everything within their power to influence a different outcome.
THE LAW IS THE LAW
We must remember: legal duties are legal obligations and they are capable of legal challenge. Whether a private individual wishes to bring legal action in the civil courts or not – against the police or the NHS – public authorities which include the police and the NHS have a ‘positive duty’, ie a pro-active obligation, to protect European Convention Rights. Argubaly, the police should be thinking of things like this, to protect that person’s Convention rights. Such rights – under articles 2, 3, 5 and 8 – come into play when we are talking about the detention in the cells of someone suffering mental disorder, without clear legal authority, whilst the NHS are busy demand managing beds.
However difficult it may be, these background legal obligations come in to play and must be addressed without the police being left in the middle of a “damned if you do; damned if you don’t” scenario.
Final observation: these positions always seem to involve cross-border stuff: ie, police in Area 1 arrested a person from Area 2 in Area 1 for an Area 1 offence; the dispute about beds is whether Area 1 or Area 2 should have to provide it if neither have an obvious answer – more likely still if there’s more than 50 miles in between the two.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
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All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2012
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
6 thoughts on “No Beds – part 1”
No beds …but sofas!! West London Mental Health Trust had an Excellent Rating until we asked the then regulator the Healthcare Commission to carry out a Patient Safety Investigation. This was done and published by the Care Quality Commission http://democracy.lbhf.gov.uk/mgConvert2PDF.aspx?ID=3457. The findings were: “Insufficient beds resulted in inpatients sleeping on sofas rather than in a bed on a ward, and some people had to stay longer than necessary on the psychiatric intensive care unit. Staff did not recognise or report the potential risks of having some inpatients sleeping on sofas. It was an ongoing problem from late 2005 and, although the trust took some interim action, it was only in late 2008, during the investigation, that the trust and PCT agreed that a review of bed usage was required.” There seemed to be a mindset which said its best to have patients sleeping anywhere as long as they were in hospital!
I understand the Excellent rating was reduced following this investigation!
Of course the police dilemma I’m outlining in the blog could lead to this problem being compounded – I’ve heard some mental health professionals, in particular one bed manager say, “If there’s no bed, there’s no bed and that’s the end of it.” Except of course, it’s not an end to it if the subsequent impact of no bed is illegality of one or more types.
How true!! I fully understand you have to come at this from a police perspective. I suppose I can only give a view as a “stakeholder” (I believe we’re called). We were deeply concerned re Patient Safety and therefore “finally” instigated an investigation. The bed situation became apparent when the Report was written!….as did several other “service delivery issues” (as these investigations like to call FAILURES!
Until we have fully independent robust investigations into “service delivery issues” (aka FAILURES) we will continue to have too many senior management teams acting with total impunity….in the knowledge nothing will be done anyway!
To quote from the Investigation Report into West London Mental Health Trust …a Trust with an “Excellent rating: “We reviewed 37 of the trust’s investigation reports and found that 22 were undated. The reports that did have dates showed significant delays from when the incident occurred to when the report was completed.The time to complete ranged from two months to 23
months from the date of the incident; the average time was nine months. The trust was aware of the Summary Care Quality Commission Investigation into West London Mental Health NHS Trust 3 delays but, until recently, took little action to improve the process.
We also found that the quality of the reports was variable. Sometimes, findings did not match the
evidence and important lines of enquiry were not pursued. For example, one investigation failed to examine in detail the staffing levels on what was a very busy ward when the incident occurred, while others failed to include recommendations about ligature points, even though the deaths involved had occurred by hanging.”
It seems this attitude was commonplace and the answer seemed to be to relocate senior managers to other areas of NHS …in fact the then WLMHT CEO went to work for NHS London!
Hows that for acting with impunity?!!
M, who is 67, was held in a police cell for 23 hours last September whilst waiting for a bed on a psychiatric ward. She was eventually found a temporary bed in a dementia unit, before being transferred to a hospital 50 miles from home the next day, then being transferred again a week later to a psychiatric unit closer to home.
Five months later, M is still traumatised by the memory if her detention in a police cell whilst waiting for a psychiatric bed.
” TRANSFERRING” unless accompanied by relevant paperwork is MOVING and moving is considered a high risk trigger for mental distress within mental health services. Many documents may read “Transfer” when move is what happened!
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