The “Policy as Law” Fallacy

A particular dislike of mine is something I call the “Policy as Law” fallacy:  the pushing forward of a particular organisation’s policies or preferences, as a legal explanation for action or inaction in a way that suits them.  There are various examples in the police and mental health arena, some of them by the police:

• “This hospital is not a place of safety” – that’s fine, but s135(6) says that hospitals are places of safety – whether you are ‘designated’ is quite a different matter, and even then, not a trump card for laws.
• “AMHPs have no power to use force to detain and convey someone when they’re sectioned” – that’s fine, but s6 MHA says otherwise.
• “Nurses can’t stop someone from leaving a place of safety if the police have already left.” – perhaps you’d like to take legal advice about s136(2)?
• “Police officers can’t transport a mental health patient in a police vehicle because we’re not insured to do it.” – wrong.  Which other way do you want “wrong”?!

There are more and each of the above examples have been said to me over my time and presented definitively as law:  I once did a blog post listing loads of myths that bedevil the police / mental health partnership but the point here is not to repeat them, but to focus on the impact upon partner organisations and operational practice that these misinformed attitudes and views can have.

DRAWING IN THE HORNS

I met with a group of mental health professionals following an incident where officers and AMHPs reached an impasse about how to resolve a situation involving a passively resistant, patient who had been ‘sectioned’.  It was suggested to the officers that only the police could assert the use of force but those officers resisted doing it for various reasons.  It was suggested to me that the police service was ‘drawing in its horns’ to do less and this was promoting problems because no-one else could use force on patients.  Ironically enough, the professional who argued this went on to subsequently describe how twenty years ago, he may well have found himself inclined to put an arm around a client to encourage them to move somewhere once sectioned, but not anymore.  He suggested it was no longer appropriate because of the potential for allegations to be made.

So which law were you using in that made it possible in the 1980s that doesn’t apply now?! – the law twenty years ago is still in place now.  In fact, you’ve just decided a different approach and you’re pretending this is law.

Nothing has changed, legally speaking, but now it is often assumed that should any force be necessary at all, the police should and will do it.  This is mental health services ‘drawing in its horns’, surely?  But regardless of the rights / wrongs: my point here, is this policy decision is getting represented as the law of the land, which it is not.  It is a policy decision by an organisation or a practice decision by a professional that they will not do something they could do, if they so chose.

Obviously, in light of adverse publicity, criticism by HM Coroners and legal judgements, police services have been looking at their obligations and their opportunities.  To give just one example, the point where AMHPs should consider calling for support to convey a resistant patient is where the situation becomes ‘dangerous’ or ‘violent’ (chapter 11 of the Code of Practice to the MHA).  If AMHPs are no longer willing to put their arm around someone and give an encouraging push-type hug to oil the wheels before calling in the paramilitary force of a stab-vested, tazered-up police officer, then we can see why we are creating gaps where non-dangerous, non-violent patients who are passively or minimally resistant.  Gaps get created by organisations unilaterally defining boundaries without reference to other affected agencies and putting themselves at the front of the decision-making process, rather than the patient.

It is not so much the gaps that I am concerned with here, I have written about them elsewhere.  It is the operation of partnership procedures in such a way as to allow an organisations unilateral declaration of what it will and will not do, be represented as ‘law’.

It often isn’t law: it is often just “made up stuff” to suit the position of the professional or the organisation putting the argument.  We all do it.

I have heard many times both mental health professionals and police officers say things that they believe are laws, which are actually just their own views or preferences, or the policies of the organisations they work for.  For example, I remember a police force who once stated on their intranet site that they will not use the Mental Capacity Act.  Full stop: ever.  This led to a complaint against them after an incident where a GP and paramedics needed to remove an elderly man to A&E for potentially life-saving treatment for an extremely serious infection which had affected his cognition and his capacity to make a decision about treatment.  The problem was that someone at their police HQ had represented this policy as “There is no legal authority for [area] Police to remove someone to hospital under Mental Capacity Act.  [Area] Police will not use the MCA to justify the use of force.”

INHERITED THINKING

So why does an agency’s policy decisions become hard-wired and why do they often end up being presented as ‘law’ when they are often they opposite?

Well, I suspect we could sum it up as a combination of Chinese Whispers and received wisdom.  I know that I’ve put out emails at work on a range of subjects and subsequently heard myself totally misrepresented.  For example, every time I’ve ever explained ‘Assessments on Private Premises‘ I have never, ever said, “No warrant means no police” and early on I learned to stress precisely that I am not saying “No warrant, no police”.  Yet many AMHPs have told me that this is how cops have interpreted what I have said.  Is it impossible to conceive that somewhere in Mental Health Land that similar ‘wisdom’ is being received and is evolving into something new that is slightly awry?

You often see this when you have partnership arrangements between one police force and multiple mental health providers.  MH Trust X won’t do something legal because they insist it is illegal; MH Trust Y is more than happy.  I’m sure Trusts covering two police forces probably have similiar frustrations.

I have lost count of the number of AMHPs who have told me that once a patient is ‘sectioned’ and needs removal to hospital that they have no legal authority to use force on that patient, that only the police have.  This could not actually be any more incorrect.  In actual fact, the opposite is true:  once ‘sectioned’ the patient is in the AMHPs legal custody and only the AMHP has authority under s6 MHA to detain and convey.  Of course, they may delegate this authority to someone else – paramedics or police are favourites – but the AMHP may not compel a paramedic or police officer to accept that delegated authority and until such time as they have, the only person with authority over that patient is the AMHP.

MULTI-AGENCY TRAINING

I cannot stress how important multi-agency training is, to this whole arena.  I think it should be mandatory, every year.  If organisations sit in their silos deciding how they will unilaterally develop their practice and how they will operate, without involving their colleagues from other agencies, it is inevitable that gaps between them will emerge.  Other, relevant professionals will not get the opportunity to be involved in that.  It is about understanding the whole of the police / mental health interface, as a system.

Meanwhile, where policies are presented as law, or where policies contradict laws – yes, there are examples – we should expect some of those affected by that to push back, not least to protect themselves from legal liabilities, but also from resourcing demands that aren’t theirs or are best shared.  This is precisely why we should all ask ourselves about the provenance of our knowledge and ensure we’re standing on solid ground.

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Winner of the President’s Medal,
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award

 

All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2012

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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

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