Almost a year ago, I ventured into a legal argument about admissions under the Mental Health Act in circumstances where finding a bed is proving difficult. In particular, I was interested in those situations where the want of a bed means that police officers are being implicitly requested to do things which could be illegal, however moral it may be thought they are.
The situation was this: someone is arrested for a not-incredibly-serious crime and after MHA assessment they need admission to hospital under either s2 or s3 of the Act. It having then been decided that a criminal prosecution will not (yet?) occur because of the obvious need to divert from justice and prioritise healthcare, finding an inpatient bed is proving problematic.
Obviously, the law allows only a certain amount of time for a solution to be found before it starts to become illegal to continue to detain the person.
- The Police and Criminal Evidence Act 1984 allow the police 24hrs in which to investigate and question a suspect. After this limit is reached, the person must be charged with the offence or released.
- Where someone is subject to an application for admission to hospital under the MHA, they enter into the legal detention of the AMHP and the police may continue to detain the person on their behalf, pending conveyance to the hospital specified by the AMHP on the application.
- So what happens if the AMHP will not or can not make the application, because no hospital is stating that they have a bed for the application to be made?
We can only suppose that one year on from the original post, that finding a bed can be even more difficult: in some areas, the number of places available in psychiatric units has reduced by a third – TWICE. That’s more than 50% in total.
Since my last post a relevant legal judgement has occurred, actually from my force area, which reinforces some of the points I made last year. In May, the European Court of Human Rights ruled in MS v UK that certain prolonged detentions in police stations amounted in inhumane and degrading treatment where the health of the patient was put at risk by refusal to identify a bed for onward admission in a reasonable timeframe. The judgement alludes to the “criminalisation contingency” about which I have also written – medium secure services declining or resisting admission directly from the police station on grounds that were not really clinical grounds.
I think it is now worth quoting directly, the words of the former Mental Health Act Commission. To explain, the MHAC was an NHS Special Health Authority, charged with statutory oversight of how the Mental Health Act was used. During its time in existence, it published a Biennial Report on the use (and abuse) of the MHA, highlighting usage, problems, solutions. The MHAC’s legal responsibilities were absorbed by the Care Quality Commission upon its creation – but I can find no record of the MHAC or the CQC withdrawing, amending or qualifying the following advice:
- Para 4.45 of the 08th Biennial Report –
- “The Commission advises the [AMHPs] have a duty to carry out their functions as prescribed in the Act, and that the responsibility for finding a bed is clearly laid on health care providers whose duty it is to admit the patient. If the patient cannot be admitted for want of a bed, the relevant social services authority, health authority and police authority will be liable if one of more of them fail to perform for the patient those functions which the law requires them to discharge.
- In practice terms, this means that in an emergency the [AMHP] should complete the applications, making it out to a hospital specified by the relevant health authority in the notice required to be given under Section 140 of the Act, and convey the patient to that hospital. The [AMHP] should inform the hospital that he or she will remain with the patient while a bed is organised, but that it is the hospital managers’ responsibility to admit the patient; the patient is per se not fit to be in the community.”
- Para 2.49 of the 09th Biennial Report –
- “The common problem of [AMHPs] finding no beds available when conveying a patient to a hospital for urgent compulsory admission was raised in our Eighth Biennial report.
- We advised that the [AMHP] should remain with the patient while a bed is organised, taking the view that, where the hospital has been identified by a Health Authority as a place that will admit patients in emergencies, it is reasonable to expect the hospital to find a bed for the patient, even though Section 140 does not place a legal duty on it to do so.”
- For clarity – all bold emphasis above is mine, not that of the MHAC.
I have always acknowledged: this advice is dated by nearly fifteen years. It has also, as far as I can tell, not been rendered defunct by any further publication from eithe the MHAC or the CQC.
So let me be bold enough to suggest what is going on in these situations and I’ll stand the criticism:
- PCTs in England are routinely failing to specify to Local Social Services Authorities those hospitals in their areas designated “for the reception of patients in cases of special urgency” under section 140 – otherwise, why do most PCTs not answer their Freedom of Information requests asking to see this list, except the one who proceeded to list every single hospital in the region whilst acknowledging that they did not understand the question?
- Received wisdom has taken hold within networks of AMHPs – that the criteria which must be satisfied to make an application valid and appropriate include criteria which are not actually in the Act. We see this elsewhere, both in policing and in mental health, where people fall into the “policy as law fallacy” and engage in various other acts of folklore. I don’t doubt the disruption, tension and conflict that this approach can bring: but so does leaving vulnerable undetained in the community or illegally languishing in police cells.
- I’m more than happy to learn that I’m wrong about this – just tell me why without effectively sayng “because you are.”
I repeat another point I’ve made several times: I can name AMHPs who share this view, that in utter extremis, you can do this and force the issue. Whether you regard this as brinksmanship or something else, I don’t mind. All I know is that when these debates have come “on top” in an operational situation and police forces like Greater Manchester have served legal papers upon the AMHP / NHS to take them to court for breaches of law, there has been no example of AMHPs and the NHS standing their ground to defend leaving vulnerable people in police custody illegally.
SAYING THE SAME THING AGAIN
I write this additional post, essentially just repeating and amplifying the first because the debate has occurred again on social media. I made the point previously and I do again now, that if someone can explain to me why I have misinterpreted the law, the MHAC guidance or anything else that is relevant, I’m all ears. In particular, I had the objection today that “it hasn’t been tested in the courts” – with any indication by the courts in either direction.
I submit that in the absence of a test-case our presumption should be in favour of following the advice of the the statutory authority on the implementation and use of the Mental Health Act. Otherwise, what is the point of them issuing it and on what basis to we ignore it?
Update on 01st April 2015 – since writing this article, a new Code of Practice has come into effect in England. It doesn’t substantially alter the post but certain reference numbers have changed. My summary post about the new Code of Practice (2015) is here, the new Reference Guide is here and the full document is here. The Code of Practice (Wales) remains unchanged.
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