Please bear with the typos on this post, which I will correct later this evening – done on a very fast train, in a hurry and I have a raging headache from trying to proof read at 135mph. I wanted to get it ‘out there’ so here it is, warts and all – they will be surgically removed in a few hours!
You may be aware that the Government has spent the last year or more reviewing various aspects of the Mental Health Act 1983 (MHA), mainly focussing upon sections 135 and 136 of the Act. These are the legal powers that relate to emergency police intervention in public places and to warrants to enter private premises and remove patients in need of assessment to a place of safety. The review is published today and you can read it in full, for yourself.
1. The full report
2. The executive summary
3. The easy read report.
This post intends to summarises the highlights for you, whilst reminding that this document, in itself, means little and nothing happens immediately. It amounts recommendations for amendments to primary legislation, it would require an Act of Parliament for these things to take effect and we already know this will not be attempted until after the 2015 General Election. We may see a Green Paper putting forward suggestions in the spring, but Royal Assent to any changes will not occur for at least a year and in theory, may not happen at all, depending on the political outcome in May. Some of the findings within the review will feed into the parallel review of the Mental Health Act Code of Practice which will probably be revised in April 2015.
But first I want to divert our attention to something which may appear quite unrelated.
THOMAS ORCHARD UPDATE
The CPS and the IPCC have announced that a police custody sergeant and two civilian detention officers will be charged with manslaughter and misconduct in public office following the death of Thomas ORCHARD in Exeter in October 2012. Mr ORCHARD lived with schizophrenia and was arrested for an alleged offence under the Public Order Act 1986 before being restrainted and removed to a police station. Although not detained under the MHA itself, it has been argued that he should have been given that this arrest followed a marked deterioration in his mental condition and it has already been publicy remarked by Mr ORCHARD’s family that the mental health trust were ‘on the verge’ of sectioning him.
Following arrest there was a protracted restraint related intervention and he was taken to police custody. The facts of what followed will now be subject to a criminal trial so are not for comment here, but it can safely be queried why the prolonged restraint of a mentally ill man led to removal to police custody given everything we’ve known for decades about the dangers of restraint and how prolonged restraint of psychiatric patients should be treated as a medical emergency (according to experts who gave evidence into the death of Rocky BENNETT).
So as you read today’s document and contemplate the highlights, bear in mind that the National Institution for Health and Clinical Excellence, whose job it is to draw up guidelines for the NHS, are currently consulting upon updated standards for the “the short-term management of violent and physically threatening behaviour in mental health, health and community settings“. These will potentially replace the 2005 standards already in operation. I admit to still wondering how all of these things square up together, especially given the implications of existing multi-agency standards published by the Royal College of Psychiatrists on Section 136 MHA? Police officers prosecuted (again) in the criminal courts in connection with the removal to police custody of resistant, frightened and vulnerable people allegedly failing to take account.
Perhaps I’ll learn details in the trial to come that helps me to understand?
The are four things to focus upon, although the document does contain much more, especially about issues which have been referred to the update of the MHA Code of Practice.
- An end to the use of police cells as a place of safety for anyone under 18yrs of age.
- Reduce the timescale for detention in a place of safety from 72hrs to 24hrs, with the possibility of extending this only in defined, exceptional circumstances.
- No legislative change to police powers in private premises – and little concrete suggestion of what will be done instead despite admission of a real problem.
- A definition of sorts, for what ‘exceptional circumstances’ mean when cells may be contemplated for use in the case of detained adults – see below.
There are many suggestions which have been highlighted in the legal review that have been made known to those at the Department of Health who are updating the Code of Practice to the Mental Health Act – this document is also under review with a view to a new Code by April 2015.
WHAT A DILEMMA
For me, I don’t wonder whether some of the things in here will be achievable – it’s fine banning children in police custody, who could disagree with that as an aspiration? Reducing time limits from 24hrs to 72hrs – again, who could argue that is a worthy aspiration? Why should someone people with mental health problems be able to be detained anywhere, but still including police custody, for longer than the police can detain a rapist? – it sends entirely the wrong message. But we know that some delays in managing people under s136 arise from an inability to identify a bed into which a patient can be admitted. This is like the 16yr old girl example in Devon last month, as the MS v UK  case. Assessment occured relatively quickly, but there was no bed. Shortening the period within which one must be found when bed capacity is still so problematic that areas sometimes struggle in 72hrs, is only going to increase the number of times that custody sergeants or place of safety staff reach the legal time limit and then have to ask themselves, “Do I now shove this vulnerable person out into the street or do I illegally detain them?” There would need to be alterations to how beds are commissioned – specifcally, on how many beds are commissioned – to re-build sufficient flexibility into a system and allow Place of Safety assessments to be expedited in this new timescale.
Something that is not mentioned in the review is the point at which someone becomes ‘sectioned’ – it was outside the original scope of the review which focussed on ss135/6. The Devon case referred to earlier shows this beautifully — the young woman was arrested on Thursday evening and assessed under the MHA on Friday morning. It wasn’t until Saturday afternoon that a bed was identified and she became ‘sectioned’ – more formally known as ‘liable to be detained’. Somewhere between being assessed and the application to that bed being found, her detention became legally quite vague given that she was arrested to prevent a breach of the peace and three sets of Magistrates had come and gone who could have heard the matters into her alleged Breach. Imagine she had been detained unders 136 MHA in a public place – under potentially new laws, she would not have been able to be held in police custody that evening, but the local area has no CAMHS PoS provision and in any event her assessment would need to have concluded by Friday night. We know that it didn’t and we know why. Nothing in those problems is addressed by reducing the timescale so we will need to hope that CCGs accept the implications of any new amendments to the MHA as a motivation to commission PoS provision in their area for every kind of child detained.
This dilemma will remain very real and we saw it writ large in a Staffordshire Inquest earlier this month. A paramedic in attendance at an address who was dealing with an intoxicated man with mental health problems called for police intervention to help keep him safe. The police sergeant took the view that the police had no powers to do what they were being asked to do and refused to attend. Although she was cleared of any misconduct arising from that decision, there was an IPCC investigation after that man’s death for the decision not to attend. I accept fully that this review document makes recommendations about this issue – I believe it was taken seriously as a problem area, not least because police officers are not the only people arguing that we lack the legal tools to keep people safe. That said, we know that parts of the Mental Health Act are ignored in a variety of circumstances; the Code of Practice has been ignored on an almost industrial scale for years so I can’t help but form the view that recommendations may be unlikely to have an impact.
What we know about these issues is that police officers cannot lawfully keep people safe in all the circumstances that unfold in the real world. We also know that thirty years of the MHA has shown local authorities do not staff their AMHP rotas in such a way as to mean that urgent MHA assessments can be set up in an hour or two. We also know that AMHPs in some areas won’t accept referrals or requests from police officers directly – despite their being a legal duty on AMHPs to consider requests for assessments! Given that history and the restrictions on services that we’re seeing, it still seems reasonable to suggest that we either need to change the way that other services can support the police or we need to see a change to legal powers.
I was always explicity clear: I agreed that extending police powers would be the regretable last step and if people could up with other ways to ensure that vulnerable people are consistently safeguarded, I’d be interested to learn what it is and would support it if it were realistic. For me this review leaves this question hanging.
BEHAVIOUR THAT IS SO EXTREME
Within this review, consideration was given to what ‘exceptional circumstances’ means – this is the phrase used to try and determine when it may, on some occasions, be acceptable to use a police cell as a place of safety. The review introduces a phrase to help define this: “Behaviour that is so extreme that it would prevent someone being safely managed in a health setting.” You mean a bit like in the case of Thomas ORCHARD? Or like Sean RIGG? Or Michael POWELL? Or James HERBERT? Or Colin HOLT? Or Leon BRIGGS? … do I need to go on?!
You’ll see the not very subtle point I’m trying to make here: most of the major, high-profile deaths in police custody or following contact that have involved vulnerable people with mental health probelms have involved those individuals being resistant when detained, quite possibly because they’re frightened by what the police are suddenly trying to do to them. In all of those cases, people were taken to custody and in some of those cases the very decision to do so, was the basis of criminally prosecuting the officers. Even in other cases where we should be thankful someone did not die, protracted detention in custody waiting for psychiatric beds was argued to amount to a violation of Article 3 of the European Covention. We know that two police forces are being corporately investigated for potential Health & Safety Act offences arising from these things.
We also know this: the Police and Criminal Evidence Act 1984 demands that custody sergeants give regard to whether or not anyone brought before them under arrest, whether for alleged criminal offences or under any other law including the Mental Health Act, has any apparent medical needs. Where they do, it is incumbent upon the custody officer to call an Approved Healthcare Professional to custody or to call an ambulance and transfer that person to hospital. I worry that any legislative amendment or Code of Practice clarification of what ‘exceptional circumstances’ means in practice, would have the effect of creating an impression in the minds of many health professionals, that it absolutely is the role of the police to detain some of the most challenging, yet acutely vulnerable adults in custody – away from healthcare support – despite what we should have learned from the cases mentioned above.
So I can’t help but think that we would need to see the details of how these recommendations would be brought in, if they’re brought in at all. There are some superficially attractive proposals in this document that few would argue with. The review also leaves some outstanding issues that means it remain difficult for police officers to call upon the requisite support from mental health trusts and / or local authorities when handling mental health emergencies in private premises. We know that street triage is assisting in the management of some of these calls, but we also know it’s making little difference to others. Yet this review must be taken as a re-affirmation by our elected Government that the public, partners and politicians really, Really, REALLY don’t want police officers taking unilateral action in private premises. Whether or not AMHPs, Crisis Teams or anyone else will react differently to future requests for support, I don’t know. Current feedback from many AMHPs that they lack the resources even where they don’t lack the will. Either way, early in the New Year, I will be writing guidelines for officers on how to police these incidents that will have to involved ensuring that the police have given every opportunity to health and mental health services to provide responses to people that officers believe are at risk and to be accountable for their response to that request, according to law.
And what do we think every custody sergeant in the country will be thinking today, having learned yesterday that their colleague from the tragic case of Thomas ORCHARD’s is to be prosecuted for manslaughter and wilful neglect?! (Sergeants – it’s para 9.5 and Annex H to Code C of PACE that you need to quote in the custody record – as well as your positive duty under the ECHR and the Health & Safety Act 1974 to protect the health of anyone detained and brought to your custody area.)
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