I’m going to have to be careful about the tone of this one: it just mind end up sounding a bit like a lecture or a telling-off! And I should be clear that this post is not just aimed at professionals in policing – what I am about to say is of applicability to anyone who has to deliver their profession within the constraints and opportunities of our mental health and capacity laws.
So whilst trying very hard not to sound too much like Mr GILBERT from the Inbetweeners, here goes —
If you are a professional reading this, you will have taken many decisions in your career which are, fundamentally, legal decisions. Section 136 MHA detentions; decisions about whether to grant leave under the MHA and recall a patient from it; the application of the Mental Capacity Act or issues around the application for and execution of warrants. There are countless other examples. Of course, the origins of these decisions may well be based on practice judgements, health and safety considerations or the attempts to prevent harm but as soon as you get into this territory you will come up against legal considerations. So we need to know the law.
So here’s the rub: we actually have to know the law, which means we might have to study it. Here’s another rub: whether or not we have a training course on offer, we might still have to know the law, which means we might have to study it. Finally, here’s a real spoiler: whether or not we know the law and whether or not you have studied it, you’re still accountable to it. Ignorance is no excuse, etc., etc..
STANDARDS OF KNOWLEDGE
My personal view, is that the standard of legal knowledge across the professions is actually quite shocking. I am prepared to be so blunt because I actually don’t think this is the fault of individual professionals. I know that I had my views early in my career about police training, but I have subsequently come to think that legal training within various mental health professionals is far from great. The only real exception I make to this generalisation is the training given to AMHPs, because they are legally warranted and professionally examined on the Mental Health Act. It doesn’t prevent the occasional myth pervading that professional group, but their legal knowledge is usually spot on.
I’ve noted a few times on previous posts that I get loads of queries via social media or email about mental health law each week and and most of them are really quite basic. “What is a s37 patient?”; “Have I got a power of entry for this situation?”; “I had a job the other night, whose responsibility is to do this?”
Of course, some questions are more elementary for some professionals than others. A while ago medium secure unit in another area to mine reported a ‘voluntary’ patient missing and told us “The Secretary of State has issued an order for his return to this hospital.” This information is actually very confusing about the legal status of this patient and what, precisely the police are allowed to do if or when they find the man. It seemed to me that there could be contradiction or confusion within the request. Since the local police area were asking officers across the force area, including mine, to attend various addresses and search for the man, I asked the duty inspector for the hospital’s area to enquire of the reporting nurse, “We’re just trying to clarify police powers here: is this a conditionally discharged patient and is this ‘order’ you’re on about a warrant from the MoJ under s42(3) of the Act?”
Silence on the phone line.
Now this probably won’t mean much to your average response officer as conditionally discharged patients being recalled is so comparatively rare that most officers will go a whole career without encountering the situation – it’s only the fifth or sixth that I’d ever been connected to in the real world. Nurses working on medium secure units will see this far more frequently and as they are an important link to ensure that the police are properly briefed on these situations, it’s important they understand their powers. Most crucially, the word ‘voluntary’ should never have been used in this context: the police have no powers over voluntary patients, unless we encounter them in public places and feel that section 136 should be applied. So can you imagine if this man – who it turned out had been a serious sex offender leading up to his hospitalization – were found by the police in a private address (where they would have no powers) and left there because of confusion as to his precise legal status? Imagine the horror if he offended after police contact with that opportunity to re-detain him having been missed?! It’s too awful for words.
It turns out that our guess was correct: he had previously been in hospital as a restricted patient and then conditionally discharged under s42 MHA. For whatever reason to do with his care, he had been recalled to hospital and would again become a restricted patient. So at last we understood what we could and couldn’t do.
This is not a knock at an individual nurse tasked with phoning the police: it is just the more potentially consequential tale from the last few months to highlight the point. There could have been the story of the woman who had been assessed under the MHA and an AMHP had applied for admission to hospital. She had not travelled to hospital on the night of the application and the following day, staff attended her home address to convey her to hospital and she refused to open the door. Could the police just force entry? …. not with a warrant we can’t, no. There could have been the one about the police being asked to physically coerce the Community Treatment Order patient back to hospital before anyone had served a recall notice. The list goes on.
The police are potentially worse: perhaps you’d expect that because although mental health is core police business we know that we’re not quite there yet with the provision of training. This week alone, “What’s a s37 patient?”, “Can we force entry to re-detain a s3 patient?”, “Can’t we just use s17 of PACE instead of getting a warrant?”.
The list goes on – legal training all ’round.
Here is a list of resources to help, but you might have to read and internalize them! —
- What do all the sections mean? – each important section of the Act, summarised into one or two sentences.
- Quick Guides – covering very common and some not-so-common scenarios under the MHA / MCA.
- Knowledge Check – one post which summarises into around 500 words the most crucial information.
- But you might have to actually read it and internalize it! – try doing it as an act of studying, rather than trying grab information at jobs when pressure is on.
I was remembering recently that the police legal syllabus doesn’t include very information on mental health. The Blackstone’s Manuals (2015) don’t include more than passing reference to the Mental Health Act. They certainly don’t include detailed knowledge of the Mental Health or Mental Capacity Acts into the legal syllabus that is the basis of the first part of both the sergeants’ and inspectors’ promotion exams. The examination is based upon surveys of operational supervisors as to what knowledge is needed and yet mental health doesn’t feature at all, despite it being daily business! I would estimate I get several dozen queries a week about what different legal structures mean or what police powers are implied. I can’t imagine how many officers with such queries don’t raise them.
The hope behind the above resources was that they would allow quick reference about the sections of the Act and what those sections mean officers can do.
We have seen that the police are only going to be as good as the information they are given. Most MHA related scenarios for the police are not instigated BY the police – the obvious exception being section 136 MHA which most officers understand pretty well. Otherwise, the police are almost always acting in support of or on behalf of mental health professionals who will need to ensure police officers are properly briefed to be able to act quickly, professionally and legally.
This is important stuff and it may well mean that each of us needs to spend at least a couple of hours (or more!) actually reading the law itself, taking personal responsibility for ensuring we are well positioned to discharge our responsibilities and to work in partnership with each other.
Over to you!
Winner of the Mind Digital Media Award.