“You think I’m talking about breaking the law?!”
“No, I’m just trying to figure out how far you want it bent!”
“As far as you can, without breaking it!” — do you remember the film?!
For as long as I’ve been in the police, officers have been trying to minimise the impact of the time it takes to handle mental health related calls by bending some of the rules – legal, procedural. Over the years, following various challenges in the civil courts, it has emerged that they were actually breaking them – and now the new Code of Practice to the Mental Health Act is reinforcing things.
We have a legal framework in this country and we need to follow it!
It’s something that shouldn’t need saying, right?! Unless you’ve seen it, I doubt you’d realise how difficult it is in many cases to give practical effect to the implications of our legal system because of how we configure our health and social care services to deal with crisis care. Last autumn the Royal College of Emergency Medicine published a survey on section 136 which reported that the police comply with local arrangements only 48% of the time. I’ve expressed surprise to a few colleagues in A&E that the number was so high – that the police comply with local procedures so often when to do so is to breach so many other more important things like Codes of Practice, human rights obligations and other legal standards around negligence and an officer’s duty of care.
I hope this doesn’t all sound too provocative!? – or why else would we need a Crisis Care Concordat?!
IMPROVISE, ADAPT, OVERCOME
When I first joined, I remember being told by my tutor constable that if you use section 136 MHA, “you can write off the rest of your shift – you won’t do anything else”. He also told me that every time I did use section 136 I would have to breach the Code of Practice to the Mental Health Act! Bearing in mind that some shifts are nine hours long and the everyone detained had to go to a police cell because no NHS organisation would agree to receive patients, even when they knew them, you can see the extent of the claims he was making – and he was absolutely correct! Many years later, I had to work out the average time spent in police custody under s136 and it was 10.5hrs per detainee with almost all detainees requiring constant camera or personal observations whilst detained, for safety reasons.
When you consider police responses to mental health crisis incidents in private premises, it becomes even more difficult to know what the ‘right’ thing is to do, because Parliament has given the police no legal authorities in such situations and not all members of the public want to voluntarily access those care ‘pathways’ that are otherwise available. A perfect storm of being responsible for someone’s safety whilst not necessarily having the authority to ensure a safe outcome. So police officers being fairly practical people, they’ve been improvising their way around the frameworks that the MHA offers and it’s been interesting to see as street triage has emerged, the number of times mental health nurses have advocated those very same improvisations.
So where an incident involves a criminal offence, you could arrest the person for that matter as a safeguarding intervention and ensure assessment of health and mental wellbeing in custody. Not ideal, but potentially better than leaving someone you suspect is in distress in their house when they have expressly indicated an intention to hurt themselves. Without an offence having occured, however minor, you have some really murky legal waters to wade through: you could, in just some circumstances, rely upon the Mental Capacity Act – those wings were clipped following the Sessay (2010) case. You could rely upon those fourteenth century Breach of the Peace provisions, but again, case-law somewhat limited the scope of that intervention in the Hicks (2014) ruling last year. (Worth noting that a Supreme Court appeal is pending in the Hicks case.)
I’ve rehearsed the various legal problems elsewhere and as the point I want to make here is different, I won’t repeat them. I want to cause officers to realise that every time you try to lawfully and ethically subvert the established process for responding to mental health crisis in private premises, you assist in ensuring that the health and social care systems do not fully appreciate the nature and variety of work that they should be able to face and, unsurprisingly, they commission accordingly. In other words, if the correct response to a mental health crisis in private premises is to seek the involvement of services with the potential that an AMHP and DR undertake a Mental Health Act assessment, then by using Breach of the Peace or by fudging an arrest, you ensure three things which we should all be keen to avoid –
- You prevent the possibility of a correct, less restrictive response
- You fail to build an audit trail of trying to do the right thing – which then makes doing the wrong thing appear even less appropriate.
- You prevent the building of an evidence base of demands which Parliament has said health and social care organisations should be handling.
This audit trail thing is really important: any investigation, civil hearing or inquest that follows on from officer’s actions will be very, very interested in attempts to do the right thing, the less restrictive thing or the ethical thing. They will be interested in knowing which health and social care professionals may have said “No” when they should have said, “Yes” or the reasons why police officers were left in an invidious position. Many police officers, like me, will have experience of ringing crisis teams from private address where they have encountered secondary care mental health patients and seeking support, only to meet a brick wall. I fully understand why the walls are there: services are having to prioritise, demand is up whilst resource is down. None of that changes the Mental Health Act or the Code of Practice which takes effect tomorrow, the 01st April. It is now an explicit part of the new Code of Practice (paragraph 16.29) that officers do not use Breach of the Peace where ss135/6 should be preferred.
You really need to read this stuff! – a summary for you.
So we need to start making sure that NHS organisations and local authorities understand the number of occasions that police officers are in private homes in situations where they cannot be the solution to the incident. Where it is via your street triage team, the local Crisis or Community Mental Health Team or an out of hours GP service (for primary care patients whose GP is known), you need to ensure before you start trying coercive, restrictive interventions, that we’ve tried less restrictive alternatives. This is not (just) about audit trails: it is a requirement of the new Code of Practice which you legally cannot ignore!
CCC ACTION PLANS
Of course, today is also the deadline for areas to complete their Crisis Care Concordat Action Plans – those documents which will allow areas to ‘go green’ on the Crisis Care Concordat map. Areas must now have identified those issues which affect their area and a solution they can work towards in order to rectify it.
How many Action Plans reference improving responses to private premises where coercive interventions are required? I’ll help you out to prevent you reading them all – none that I’ve seen so far. (So many areas have ‘gone green’ over the last few days, I admit I haven’t yet read them all.) This either means that there are no problems of the kind frontline officers keep ringing me and emailing about; OR it means those who are writing CCC plans don’t fully understand the nature of the demand and the problems they face! I took a phone call only last Sunday from a police inspector checking his thinking against a nightmare situation where no police officer at an incident had even attempted to contact mental health services for advice, support or to discuss a less restrictive response: instead, they went straight for the fudged, unilateral approach. It may not even have been legal and yes, that inspector had escalated the incident for proper review so I didn’t need to suggest it.
But why wouldn’t CCC action plans contain such a point: the 1983 Mental Health Act and its 1959 predecessor are very clear about the response to mental health incidents in private premises and this year’s new Code of Practice reinforces the point – it is for health and social care organisations, especially for the community, crisis nurses and AMHPs amongst us, to be able to respond to incidents in people’s homes where no criminal offence is being committed. This is not just historically legacy: it is the view of our current Government, following last year’s review of ss135/6 of the Mental Health Act so services need to be configured in such a way as to be able to give effect to that legislation and so it really needs to be in CCC Action Plans, in my view.
DATA AT THE INTERFACE
We know there are various problems with data at the interface of policing and mental health: the main one being that no single person or organisations tends to be in possession of all the relevant data and that I don’t think anyone really knows what the ‘relevant’ data actually are! Nevertheless, every time a police officer uses Breach of the Peace when they should have tried to engage NHS services, they prevent the situation in which our partner organisations can understand the nature of their demand and the extent to which is drifts to the police and to the ambulance service as 24/7 organisations. If we are to be fair to the public as a whole, we need to stop doing this, to start attempting to engage health organisations so that we can more clearly see the demand in front of us and better understand how to manage it.
So if you are a police officer, please understand why the MCA, Breach of the Peace and other fudges around s136 MHA are not appropriate, now unlawful (by virtue of case-law) and how important to is to build an audit trail that would assist in protecting you were an untoward event to occur; AND which would assist in building a true picture of the nature and variety of demands that services need to be able to face, in partnership, preferably.
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