I’m going to do two blogs on the new draft Code of Practice to the Mental Health Act 1983. In this first post, I’m going to give some details about the consultation itself and how you can contribute to it if you have views you want to put across. I’m also going to zone in on the new Chapter 16 of the Code of Practice which relates to police powers and is the equivalent chapter to the current chapter 10 from the 2008 Code. I will also say some things about what is NOT present in this draft. In a second and subsequent post, I’m going to cover the other chapters that are of relevance to the police but in neither piece am I pretending that this is exhaustive or all that I have to say – that will be going to the review team whom you can also contact if you have a view.
There are many things in this draft Code to be welcomed, not least the new Chapter on the interface between the Mental Health Capacity Act 2005 and the Mental Health Act itself. I also think many things carried over unchanged have been presented in a clearer, more helpful way. Having obtained the hyperlink to this whilst lying in sleeping bag in a field in Kent with no 4G or 3G, I couldn’t download the document to read it properly. In a tense evening with little sleep, I came to realise how ridiculous my life has become that all I wanted to do was drive at 4am to a signal area and download the bloody thing. Having made myself wait until skipping through Kent’s glorious medieval history, I managed to steal a glance and felt quite disappointed, overall.
But my punchline on reading the draft – I still think we’ve got a lot of work to do. Some stuff remains too vague and too ambiguous, some stuff is wrong (by omission and commission) and other stuff potentially reinforces the need to do things in a way that sits at the heart of various disasters and tragedies we’re still wrestling with. We need to do more and better than this – this draft Code still leaves many unanswered questions and we have until 12th September 2014 to realise this and get the replies in.
It was in only the second paragraph that I first paused and thought, “Oh, no” – hints at the end of 16.2 about the grounds for obtaining a s135(1) warrant. They don’t just include patients who are ill-treated or unable to care for themselves, but also patients who are ‘neglected’ (including self-neglect) or ‘kept otherwise than under proper control’ – awful language but still part of our current law. So we kicked off by only listing half of the grounds upon which a warrant can be obtained, including the most important one of all to the police arguments about the management of risks and safety during MHA assessments in private premises.
I then read on –
Paragraph 16.6 pleased me greatly – it is making explicit in the new Code something which I have argued for years. That obtaining a warrant purely for the purposes of removing someone to a Place of Safety is perfectly acceptable and was within the original intentions of the Act. This is a point I have stood in rooms full of AMHPs and made several times, only to find copies of the Richard JONES Mental Health Act manual being produced and vigorously thumbed. Professor JONES was kind enough to email me ahead of the last edition of his Mental Health Act Manual (2013) to say my BLOG had caused him to revise his advice and the new Code of Practice makes this explicit, at last.
Paragraph 16.21 needs clarification – it refers to the practice of s136 being used in hospitals and states that hospitals should not call upon the police to use section 136 on inpatients – instead, holding powers under s5 should be considered. Whilst this is correct, it could do with being über-emphasised that patients in Accident and Emergency are not inpatients and holding powers cannot be used there. Whilst I’m usually dubious about having to use s136 at the request of A&E staff, I do accept that it is often lawful and sometimes necessary, but without this Code emphasising the A&E is not an inpatient setting and s136 may still be necessary, I just have visions of officers declining to use the power and saying, “No – paragraph 16.21 of the new Code says …”
WHAT’S NOT THERE
It not a only question of what is in the draft Code of Practice, but also what is not in it – there is only one reference in the whole document to section 140 of the Mental Health Act. Many who have followed this BLOG for years will know it is a section of the Act that is very under-explained by previous Codes, by the CQC in their Annual Reports and by legal commentators like Professor Richard JONES in his Mental Health Act manual. For those who don’t recall, section 140 obliges CCGs to specify to social services which hospitals in their area are designated for urgent admissions and which are for children and young people.
I sent off three dozen Freedom of Information requests to CCGs last year asking about their section 140 MHA arrangements and not one of them could answer the question fully. In fairness to the CQC, they made mention in their latest report about how they will be examining section 140 compliance in the future. But for me, the new Code of Practice was the ideal opportunity to flesh out some expectations here.
I take the view, that if you read section 140 you should conclude that it was Parliament’s clear intention that CCGs should commission and provide their services in such a way as to make sure that when a lone AMHP is standing in a house, ring-mastering a difficult and sometimes dangerous situation, they should *never* be left in a position where they cannot make an application to a hospital, to bring that person into a condition of legal custody.
Now if I’m wrong about the intentions of this section, then fine – but something should be outlined in the new Code to bring together the disparate, emerging and existing conversations about section 140 with some clarification about the responsibilities on CCGs and provider trusts. How should these be interpreted to prevent punters like me shouting up with interpretations that seem at odds with NHS Commissioners, the implications of which seemingly scaring the life out of them!
DEATHS IN POLICE CUSTODY
Let’s remember why the police had to become so very interested in policing mental health emergencies much better – it has been the catalogue of deaths in custody which are so very controversial and still subject of vigorous debate. Only last week, we learned that four officers and several other NHS staff who had been under investigation following the death of Kingsley BURRELL in Birmingham in 2011 would not face criminal prosecution for a range of offences that were under consideration from manslaughter to health & safety offences.
Some of the other high-profile deaths in custody have involved the removal to police cells of patients exhibiting highly agitated presentations and they have either died there, or died whilst en route there: Sean RIGG, James HERBERT and Michael POWELL to name just some. It was when working on developing new ways to respond to those cases that I encountered a certain mentality which persists to this day, that where the police come across those rare incidents where exceptionally psychotic, floridly unwell people are exhibiting a risk to themselves or others, they should be taken to custody. Well, we’ve been doing that for years, folks – and we see two deaths each year in the IPCC’s death in custody figures as a result of that approach.
The problem with the new paragraph 16.36 is that it leaves unaltered the wording of the old paragraph 10.21, albeit the wording is rearranged. It talks not only of police cells being acceptable on an exceptional basis where people pose an unmanageably high risk; it still talks more specifically about that risk being to staff and other patients without reference to the potential of the police to contain such risks whilst urgent assessment is done. Well, Michael POWELL was reported to be posing such a risk, as was as was Sean RIGG AND James HERBERT – because of their clinical conditions. After very lengthy investigation we don’t see a consistent understanding of the outcomes from these across health and social care – not least because it is usually CJ inspectorates who conduct the inquiries and reviews. When police officers are prosecuted and then acquitted or not prosecuted at all, we hear on the one hand reactions which talk about officers undertaking extremely difficult work with limited training but we also every understandably hear families still struck by grief and injustice in disbelief that those who hands were upon their sons and brothers at the time of their deaths were not guilty of them. That’s why I wanted the Code to do more – although some may argue this is not the point of a Code of Practice.
Remember what a Code of Practice is: the Munjaz Case (2005) reminded us that whilst it is not ‘binding instruction’, nor is it mere advice that you can take or leave. A Code of Practice is a statutory document issued by the Secretary of State for Health under authority granted by the Act itself. It is powerful, statutory guidance which should be complied with unless there are ‘cogent reasons’ for departure.
This is why it is important that the new Code reflects what we’ve learned since the last two updates to the Code in 1999 and 2008. We know that you can’t just say “violent patients to the cells” and hope to get away with criminal neglect where the circumstances amount to that. So we need a Code that prevents some interested parties from arguing for the status quo where this would actually continue to put vulnerable people at risk.
In the second post of this subject: I am going to look at other chapters of the new draft which still affect the police – those on AWOL patients, MHA assessments and conveyance.
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