In a recent multi-agency event about the difficulties in our interface between mental health and criminal justice a classic scenario was hypothesised in order to raise questions for discussion about who bore responsibility for someone in a particular circumstance. How could agencies work together quite creatively to support each other and how could someone who may be at risk be safeguarded? I want to use this example to show the impact our legislation has upon our modern professional practices and our inter-agency working. It is the historical legacy bequeathed to us by previous generations who reformed the system of mental health care, without reforming the legislation that underpins it.
Bob is a hypothetical man who has recently lost his job. What begins as a personal journey of social depression and anxiety becomes a situation of concern as he starts drinking to excess. This causes difficulties for him in his personal relationships and as things become financially acute with on-going unemployment, his drinking worsens and there is no obvious solution to these issues. His marriage eventually breaks down. Feeling that everything has collapsed beneath him, Bob begins drinking even more and his disinclined to seek any support from his GP or elsewhere.
Eventually, there is an incident which leads to concerned neighbours calling the police.
Upon the arrival of officers, Bob is intoxicated, there are indications that may have made preparations to take various forms of medication but no indication that he has yet done so. It is obvious from the condition of his home, he is failing to look after himself – there is little if any food, the house is in filthy disarray and he doesn’t have electricity because he can’t afford to top up his payment card. The police have called the ambulance service who have ruled out any serious medical problems but paramedics are also unable to persuade him to attend any NHS service for assessment and support. They’ve suggested A&E more or less immediately or whether he could see his GP for an urgent appointment tomorrow. Given everything, they also feel he may need assessment under the Mental Health Act. A phone call to duty mental health services leads to a referral for MHAA being accepted, but the team will be several hours before they can undertake it. Those present have tried to contact family or friends, most notably Bob’s brother, and no-one is able to come to the address to be with him for a few hours or until the next day when assessment might occur.
The delay is for a couple of reasons: firstly, the team are committed with other emergency MHA assessments; and secondly, time needs to be allowed for intoxication to subside to make any assessment meaningful. The question then arose about how to manage the potential risks and safeguarding issues in the meantime, given that Bob is not consenting to any form of intervention and will not voluntarily attend A&E or allow a response from his out-of-hours GP?
HOW DO WE KEEP BOB SAFE?
This vignette is not an unsurprising one to choose: I have used similar ones on this blog to highlight the impotence of police officers to resolve some kind of safeguarding situations where there is no criminal offence being committed and no breach of the peace being occasioned. The kernel of the ethical and legal dilemma is to create that situation where everyone knows that something needs to happen to safeguard the person, but where there is no obvious legal route to doing so for the people present at the incident. We should remember this is a particularly British problem: in most other jurisdictions, police forces can act in these situations.
Here’s the answer to this situation >> an Approved Mental Health Professional goes to a magistrate, out of hours if needs be, and swears out a warrant under s135(1) and this is executed at the house in order to remove Bob to a place of safety for up to 72hrs. This means he is safeguarded whilst the effects of the alcohol wear off and pending a full MHA assessment once fit to be interviewed. There would be genuine difficulties to any other approach. The police cannot act unilaterally; the Mental Capacity Act would almost certainly not apply and no other health or social care professional has a power to act to safeguard him without his active consent and cooperation.
Sections 135 and 136 of the 1983 Mental Health Act were lifted, almost unchanged, from the 1959 Mental Health Act – legislators even left the section numbers the same, I like to think because someone took a view that they didn’t want to unnecessarily confuse the police! Either way, it remains true that the laws police officers are working with as we approach 2014 are the very same laws that were written in the late 1950s. In the sixty years or so since passed, developments in the model of care employed has led to an increase in the number of patients receiving treatment in the community.
It is not surprising that the number of police related interventions under the Mental Health Act has increased significantly in that time. I wish I had figures from the 1960s about the police use of section 136 MHA 1959, but I don’t – in some areas we struggle to get figures for 2012! There are various reasons to think that the use of section 136 MHA has risen considerably over the last twenty years as we’ve seen the number of inpatient psychiatric beds reduce from 55,000 to 17,000. I have heard AMHPs say similar things: those who have been in practice for several decades talk about Mental Health Act assessments being far, far more frequently required as the average duration of stay in hospital reduces significantly.
I can imagine that sixty years ago, the number of occasions where a Mental Welfare Officer – as AMHPs were then called – would have needed a warrant from a Magistrate’s Court would have been very few and far between. I can also imagine that the scrutiny applied to any misuse of section 136 was much less and I know some professionals in policing, health and social care still regard the illegal use of section 136 as a necessary expedient. Don’t forget, it took until 1997 before there was an incident where the misuse of this power was legally challenged in the case Seal v Chief Constable of South Wales Police and after various appeals through the British and European Courts. That case was only finalised in 2010.
LET’S GET REAL
But how practical is it, when the police are faced with a “Bob”-like situation that an AMHP is despatched to a Magistrate for a warrant? Even if it occurred in a fraction of necessary cases, it would still be massively time-consuming and I fully doubt whether many, if any, local authorities have anything like enough AMHPs to make this realistic. One ambulance service I know have 1,400 “Bobs” per month and accepting that they cover a region which will include many police forces, mental health trusts, etc., this is still a truly enormous figure.
When I suggested during this event that the solution here was a section 135(1) warrant, there was immediate reluctance although there was an acknowledgement that Bob probably needs to be removed to a place of safety to keep him safe until he can be assessed. Well, the route to a place of safety under current law is a warrant! The reluctance here arises from the bureaucracy involved in doing this properly and the inability to manage the implications on professional time, not from any particular disagreement that the outcome it would afford is the wrong one. And all of this is the consequence of our current law, as it stands; because if Bob had been encountered in the street outside his house, officers could have used section 136 MHA and no-one would disagree with that.
So let’s remember: we’re policing a twenty-first century mental health system oriented to community care, but we’re doing it with mid-twentieth century legislation oriented to institutionalised care. Until Britain looks to modernise (at least) the police parts of its legal framework we are where we are and the judge in the Sessey case reminded us that in the Mental Health Act “Parliament has expressly provided for the situation where the application is one of urgent necessity.” Any observation that this lacks a practical appreciation of how difficult it would be in the case of someone like Bob to ring the duty AMHP and see the implications of the Sessey judgement as a reaction, is probably more a comment about whether the local authority is providing sufficient AMHPs to match predictable levels of demand.
THE VIEW FROM THE FRONTLINE
In any event, my role at the afore-mentioned event was to speak specifically about a view from the frontline of policing. So all of the above many be of interest to some, but finding oneself in the position of being the police officer or paramedic in the case of someone like Bob, the main lesson in this post is that we should not be dissuaded in asking for AMHP support in cases like this where it is needed. That the AMHP may not share a view that a warrant is the way to proceed, either because they have a realistic alternative or because demands upon them prevent them from attending a Magistrate for warrant is not something that should concern frontline staff. Recognising the situation for what it is, in the context of that Sessey judgement, and seeking the right support will be an important part of any audit trail that has to be offered up in the eventuality of an inquiry.
If an AMHP feels that it would have been appropriate to use section 136 on Bob had he been encountered in public, then it is fairly easy to argue that section 135(1) should be considered because he has been found in private. The bureaucracy involved should not be the primary issue: the need to safeguard Bob, is the main concern. So let’s push for what we know is right, until such time as we discover whether reform of the law will occur. We only need to look to our nearest neighbours, the Republic of Ireland, to see how easy it could all be. And then I wouldn’t have to keep banging out blogs hoping to help frontline staff to protect themselves from blame when the broader system within which they are managing a large volume of deflected demand, fails to support them as they seek to do the right thing.
Winner of the Mind Digital Media Award.