For years and years, the police were used to the idea that mental health care, as governed by the Mental Health Act, was “inpatient” business, connected to mental health hospitals: Patients were either in hospital as a sectioned or voluntary patient and the only application of the MHA outside the hospital were those instances where patients were first detained for admission or were re-detained having become AWOL. Very occasionally, one would hear of a “conditionally discharged / restricted patient” being recalled under a warrant from the Ministry of Justice, but the paperwork connected to those warrants provided a guide for officers who probably would never have heard of this legal power and would probably deal with it once in their career, if at all.
This impression of the MHA was not entirely accurate: guardianship, under s7 MHA, always had been there under the 1983 Act and the 1959 Act before that – and it was used. But I certainly did the first fifteen years of my police career without ever encountering a guardianship-oriented scenario that required any policing support. The police use s136 in emergencies, s18 when we re-detain AWOL patients and we sometimes assist in MHA assessments in homes, maybe under the terms of a s135(1) warrant. That’s why police training pitches knowledge on these aspects of law.
RECENT MODERNISATION OF MENTAL HEALTH LAW
The challenge of getting to grips with mental health law around community based situations began to change in 2008 when the effects of the Mental Health Act 2007 came into force. This legislation has not long since been reviewed by the Health Select Committee of the (UK) House of Commons.
CTOs imply the possibility of recall to hospital and can have conditions attached around residence, supervision of medication and so on – they supposedly allows for easier re-admission where this becomes indicated. They were originally aimed at preventing the “revolving door” of crisis admission >> rehabilitation >> recovery >> discharge >> relapse >> further crisis. It was aimed at preventing relapse through the conditions imposing an imperative on the patient to comply or through allowing clinicians to recall patients to hospital before relapse reaches crisis. Of course, the beds crisis in the United Kingdom means there is often difficulty getting patients back in before the relapse becomes a crisis, but that is something else the Health Select Committee reported on, asking Parliament to inquire into it. The select committee and recent academic research suggests CTOs are ineffective and although wildly more frequently used than was first considered likely, they are not applied consistently across the UK.
We also saw the Deprivation of Liberty safeguards, known as “DoLS”, added into the Mental Capacity Act which also introduces different legal dynamics to the delivery of care through restriction in the community, usually for elderly patients with dementia or patients with learning disabilities who do not require inpatient hospital care. I had a recent query from a Yorkshire police force – what power do officers have to recover someone who was subject to a Court of Protection imposed DoLS order to remain on a particular hospital ward, but who has left? I know mental health lawyers who don’t know the answer to this, so what chance operational cops who also might get this query once a career, if that? Now if there was an easy answer to this query, we could stick it on the intranet or on a well-known blog on policing and mental health – but there isn’t an easy answer! Specialist trainers on the MCA hesitated in their answer.
It has become obvious to me over the period since we started to see the rationalisation of inpatient mental health services that the implications of CTOs, the emerging instances of guardianship and also police-connected DoLS incidents are creating new imperatives for police officers to have knowledge or at least access to knowledge, which sometimes needs to be detailed.
As such, I have written a new “Quick Guide” on Guardianship, to sit alongside the existing one on “Recalls and Revocations” and I will do something on DoLS as soon as I can.
KNOWLEDGE OF THE LAW
I want to argue that everyone’s knowledge of mental health law needs to improve – not just in policing. We need training and it needs to be delivered with a depth that reflect the demand and complexity it represents.
I have to do five days of public order training this year, recently increased from three and I have to do this every year. Now large-scale demonstrations like EDL protests – of which I’ve policed a few; football matches – of which I’ve policed hundreds, are important business. I was sent to the Olympics as a public order commander and no-one wanted to see that stuffed up so training is important.
But so is mental health. In fairness, failures to police mental health incidents properly have got the police into similar kinds of controversy as failures to police public order properly, like at Hillsborough and the 2011 UK disorders. Responses to those matters tend to be inquiries (like the Taylor Report after Hillsborough) and although we’ve had the Adebowale Report (2013) we’re yet to learn whether I’ll be on a five-day mental health course so that as a duty inspector, I can get to grips professionally with the nature and variety of demand without damaging the reputation of UK policing and more importantly, without putting people at risk.
Senior officers need this, too – I’ve seen too many of them fobbed off over the years.
I handled a complaint last year which had suggested officers did not know their legal powers and had in effect, allowed a patient to become even more unwell through “their” inaction. During a meeting with the mental health team about this the opening remark from the psychiatrist was to invite me to give guarantees that “nothing like this would ever happen again!” Instead, I gave examples of where his trained or sometimes legally warranted mental health professional colleagues did not understand the Mental Health Act either, despite their training and wondered aloud how realistic it was for a front line police sergeant to get it right without detailed law training and partner professionals who are giving him little or no information?
Not realistic at all, I argued. Having spoken to the sergeant involved he acknowledged he had made “a bit of a punt” in good faith, but that he had done so after asking for clarity from MH professionals present and not getting it. And then there was today’s high risk missing person … family frantically looking around the area of a care home where their mother / grandmother was residing. Quite advanced dementia to the point where she did not know her own name and struggled to recognise her children and grandchildren.
The 999 call came in and I started mobilising EVERY single available police officer on the area to search for her. Background discussion with staff whilst the search began that she was subject to no legal framework whatsoever, but they’d claimed that “she wasn’t allowed out.” Under what law is she ‘not allowed out?’ Adults can do as they please unless the Court of Protection has determined otherwise because of an established lack of capacity. She was found quite quickly, but that really was more good luck than judgement.
MAKING SIMPLICITY FROM COMPLEXITY
This legislation is complicated: I have three hours of mental health training to my name and half it was wrong and the other half doesn’t work in the real world because the real world does not look as the Mental Health or Capacity Acts’ Codes of Practice implies it should. As such, many people are making this up as they go, of necessity; and I don’t say that proudly. We know now, if we didn’t before, that policing comprises demand of which 20% is connected to mental ill-health. If you add in the effects of drug and alcohol abuse as a mental disorder, that number should be at least doubled.
Incidentally – the DoLS “re-detention query” answer is: no explicit power at all, which always inspires confidence when your trying to research the answer at 8pm on a Sunday for that once-in-a-career situation that your relevant health professionals don’t know the answer to because they’ve had no training either. You can defend the proportionality of your intervention to return the patient against the criteria laid down in ss4, 5 and 6 of the Mental Capacity Act 2005. DoLS after all is part of that Act and is part of the solution. Clear as mud isn’t it?
I wonder what they could have done to make mental health law more complex than fill it full of implication and then deliver almost no training? … and all for outcomes which scrutiny of various kinds suggests is little better than it was before for people living with mental health disorders.
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