Since writing this post, the response has been extremely positive from a range of professionals across those mentioned below. Various senior people have expressed an interest in thinking this through a bit further and regardless of where that goes, I have decided to produce a short-written guide which reflects the ideas below. Not sure what format that will take when it’s finished as I’m still thinking it through, but such is the reaction to the idea below that it strikes me as worth doing something that fleshes out the bare idea and then see how others could make it into something useful, whether by internet or a short-course via an organisation. —— watch this space!
I have written another post on this idea, starting to flesh out some ideas and asking for feedback, please take a look at it and leave comments if you have any.
I want to get together an “emergency mental health law” course. Something that could be up and running, by distance learning or e-learning that gives a CPD certificate – a basic standard of law knowledge that we can all agree is required by everyone who is engaged in this business. Don’t groan at the distance learning idea – I want people to stick their heads in books and read stuff, the actual law and what the judges said. Not some “old sweat” PC or AMHPs view on what the judges might have or should have said. Back to the source material and question it. Question Everything!
It should be jointly badged by the relevant professional bodies like the Colleges of Policing and Paramedics as well as Social Work and Emergency Medicine, plus the Royal Colleges of Psychiatrists, Nurses and General Practitioners. It should be taken by frontline staff in all those professions, or at least made available to them – in my humble view.
It should have reference and quick-guide materials available, electronically and in hard-format for us on the road. I hereby copyright this idea and should register a business interest!?
And here’s the big thing: I don’t want anyone in that group arguing that they “don’t need to know that!” This is also about achieving a joint-understanding of what other agencies can do, so whilst a psychiatrist may not, for example, need to know whether or not the police can force entry to a premises in particular circumstances in order to be an effective psychiatrist, they may need to know such things if their job takes them into the territory of requesting police actions in support of mental health processes. So for example, a s12 doctor or psychiatrist who undertakes Mental Health Act assessments may need to understand it – I’ve certainly found them willing to offer me legal advice about my legal duties, so it would be nice if that were grounded in legal knowledge.
No police officer needs to know the precise difference between s5(2) and s5(4) of the Mental Health Act, but they do need to know that section 5 can be used to detain patients in a hospital and they need to know that it can be used in acute hospitals as well as mental health units, but not in A&E. If I had a fiver for every time I’ve heard of officers telling A&E nurses that they “should have used section 5” ….
MAKING STUFF UP TO SUIT YOURSELF
This week, I will admit to having had my fill, quite honestly – police officers advising other cops they should illegally detain people by misapplying the Mental Capacity Act; mental health staff asking the police to illegally force entry to a premises without a warrant; staff misunderstanding that they can apply section 5 MHA to an informal patient who is in the hospital grounds and wants to leave against advice and who will be considered a high risk missing person if not prevented from leaving. It’s really, really basic stuff. And it’s not the getting it wrong that I necessarily mind: it’s the confident certainty of people who are busy getting it wrong that I marvel at.
We expect police officers to know their stop and search law; their powers of arrest; their ability to use section 136 correctly. Why shouldn’t we also expect them to know the essence of their powers of entry for mental health purposes? This week, “Inspector, we’ve got officers at an address searching for a missing patient, they think he’s inside his home address can they force entry?” We should know this.
This post is not pointed at anyone group of professionals – we’re all at it, for various reasons and we can think back to loads of other examples given in this blog where misunderstanding the law has got people into serious difficulties. You can be the best in the world within your profession, but if you don’t know when you can or can’t detain other people, when you can and can’t force off their door or what your partner professionals can and can’t do, you will struggle.
STATUTORY GUIDELINES CASE LAW
Legal knowledge needs to go just beyond the statutes as well – into the territory of case-law and knowledge of the significance of a Code of Practice. If you want to look hard enough, you will see the Code of Practice to the Mental Health Act being wilfully breached without worry, including at the organisational level and in many published joint policies that exist between the police and the NHS. (It does make me wonder what Trust and Police solicitors are checking when they approve these things.)
Every professional involved in this interface needs to know that the House of Lords (now the Supreme Court) has said you should follow the statutory guidance that Parliament has bothered to publish in a Codes of Practice unless you have “cogent reasons for departure.” So if you are departing, what justification do you have? If none, you’re in the wrong place, legally speaking.
Only this week a nurse has asked me about direction that is given in her hospital to informal patients. Despite being told upon admission “as an informal patient you are free to leave at any time. You do not need permission to leave but you are asked to notify staff of your intentions should you choose to go out” there is an informal practice of telling patients that they “can’t go out” until seen by a doctor. I’m sure we can all think of sensible justifications for this approach, but what if the doctor is going to be a few hours until they can see the patient; what if they are not actually available until tomorrow morning? Are we preventing the patient from leaving because of that policy, or not?
We now have someone who wishes to exercise a legal right that they enjoy, to leave somewhere they are not obliged to remain and they are being prevented by policy – but that policy has to be enforced by a professional, in this case a mental health nurse. What law will that nurse rely upon to justify denying that patient the right to leave? I feel confident that few answers measure up against paragraph 21.36 of the Code of Practice, bearing in mind that the nurse could choose to use s5(4) MHA if they think the grounds are met. Why decide to detain and not apply s5(4)?
We also need to bear in mind further implications: what if the patient starts to become resistant or even aggressive to the nurse in question, perhaps attempting to force their way out of the hospital – is it not a lawful defence to false imprisonment to show that you merely used reasonable force to extricate oneself from unlawful detention? Yes it is. What if the nurse(s) uses force to keep the person there – on what lawful authority did you do so? None – so that’s an assault.
I must be frank, if you locked me in a building and said I couldn’t leave without explaining the legal basis of your decision, I would call the police and ask them to help me exercise my legal right to use appropriate force to extricate myself or my loved one – to which s3 of the Criminal Law Act 1967 applies.
WE NEED TO KNOW THE LAW – just sufficiently to apply it!
UPDATE: I have written another post on this idea, starting to flesh out some ideas and asking for feedback, please take a look at it and leave comments if you have any.
- MHC mental health law page – links to various websites containing legislation, codes of practice, etc..
- MHC case law page – direct hyperlinks to some of the main cases in policing / mental health
- MHC “What Do All The Sections Mean?” – a popular summary of the English / Welsh MHA sections.
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