Another Dozen Little Details

Again, your indulgence is craved on what is essentially a repeat-publication post.  I’ve argued that there are a dozen or so little nuggets of legal knowledge in the Code of Practice to the Mental Health Act that police officers really need to know in order to be effective but the introduction of a new Code of Practice (2015) on 01st April means that all the numbering and references have changed.  All of it is still there, but renumbered just to ensure that the police get confused all over again!  Not really – but it does have that effect!  So it’s back to the text books for us all and as the new Code is almost five hundred pages long, divided into almost forty chapters, it’s an awful lot to take in.  I’ve now managed to actually read it straight-through, having done similar with the old Code some years ago and having vowed never , ever to do so again!  But I haven’t been able to avoid it, since it’s actually now my job to know this stuff.

But if you’re not at the stage where you are prepared to give up a few days of your life that you’ll never get back – and why should you?! – here are those dozen details, under the new referencing system.  Whether you commit them to memory, or just focus on remembering the summary of what they’re about, it should improve your ability to police effectively in this area —–

• Paragraph 14.17 – Don’t threaten patients with being “sectioned” to induce them to agree to voluntary admission –

• The threat of being “sectioned” should never be used to persuade a patient to enter hospital. How voluntary is it anyway, if it only occurred after being threatened with legal detention?

• Paragraph 14.48 – Explain why the police are still needed at a MHA assessment if it’s conducted without a s135(1) warrant –

• Where a Mental Health Act assessment is going to take place in a dwelling but where no s135(1) warrant is in force, the AMHP coordinating the assessment should explain why police involvement remains necessary if it is sought.

• Paragraph 14.56 – MHA assessment does not always have to be delayed until the effects of drugs or alcohol have worn off –

• It is often said that “You can’t assess someone under the MHA whilst they’re under the influence of substances. This is the paragraph that shows this is not correct. The paragraph certainly advises delay where possible, but it may not always be possible.

• Paragraph 14.89 – Applications for admission under the MHA must be made to a specific hospital –

• It is not sufficient to specify the mental health trust to which the patient will be admitted.  But this is the paragraph that is often cited to show that you can’t make an application to a hospital that is full.  Begs the question how the CQC ever find 120% occupancy on wards, doesn’t it?!

• Paragraph 16.11 – You can make applications for s135(1) warrants without previous attempts to gain entry –

• It is often said that you can’t obtain a warrant without previous attempts to gain entry having been made. This is the paragraph that shows this to be incorrect. It stipulates that if applications are made without previous efforts, AMHPs need to set out the reasons for the Magistrate. This is in order to draw their attention to the fact that they can and to the reasons as to why in this particular case.

• Paragraph 16.38 – The police station should not be the automatic first or second choice as a place of safety –

• This is the paragraph that custody officers and detaining officers should bear in mind when considering the use of the police station as a place of safety. What else did you consider or try, before resorting to it? If you can’t answer that question, you’ve got more thinking to do before seeing the custody sergeant. If you’re the custody sergeant, I’d ask the question!

• Paragraph 17.7 – Sedated patients should be accompanied during conveyance by a suitable professional who is trained in the care of such patients –

• This will normally not be a paramedic because they are not licensed to administer drugs to sedated patients. It will normally be a nurse of a doctor and officers asked to assist in the transfer of patients from one place to another, should bear in mind this requirement and ensure such a professional is involved.

• Paragraph 17.34 – Police involvement in the conveyance of patients under the MHA should be based upon them being violent and / or dangerous –

• This is obviously a far higher threshold than patients being resistant to admission or transfer and officers should be certain to ensure that they are acting according to this part of the Code. It may be that local protocols assume all coercion under the MHA should be done by the police: this appears to be outside the intentions of Parliament who gave others the power to do so and this paragraph sets the bar somewhat higher than a patient being merely resistant to admission / transfer.

• Paragraph 27.38 – Voluntary patients cannot be required to seek permission to leave hospital –

• But they can be asked to inform staff that they are leaving. This is important in situations where officers are called to mental health wards to reports of offending, involving voluntary patients. The Care Quality Commission repeatedly warn of the dangers of de facto detention whereby patients under no obligation to remain in hospital are ‘denied’ leave for various reasons. Where a voluntary patient chooses to leave hospital, either briefly or completely, they should be allowed to do so unless the nurse of doctor involved applies a holding power under section 5 of the Act.

• Paragraph 28.6 – It is the responsibility of hospitals to ensure repatriation of AWOL patients, once found.–

• If an AWOL patient is located by the police reasonably close to the hospital from which they are missing, it may be officers seek support from a local ambulance service and return the patient to that hospital – that may often be quicker than anything else and it ensures some clinical screening and oversight. Where patients are found further afield, it may not be possible to secure ambulance support (trusts often decline to convey beyond their boundaries on long journeys) and it would be a breach of the Code of Practice to convey by police vehicle, where that is avoidable. It may also be unsafe for officers to do this, for various reasons.
• The responsibility for returning patients sits with the hospital from which they are missing and it would be both lawful and potentially safer for forces to secure a temporary location where someone could be kept safe, pending that hospital making those arrangements.

• Paragraph 28.14 – The recovery of AWOL patients whose location is known is a matter for MH services –

• But the police can be asked to assist in the risks involved suggest it is appropriate. So where, for example, a s3 patient who has been granted s17 leave fails to return on time and telephone enquiries by the ward reveal they are at home, it is up to ward staff to co-ordinate re-detention. It is for NHS managers to ensure they have access to resources by which to do so.

• Paragraph 28.22 – All unauthorised absences by patients should be reviewed to identify risks and prevent recurrences –

• It is a requirement that all absences be reviewed.  Given the frequent involvement of police resources in searching for patients who are absent, it seems reasonable to for the police to have an input into this process, especially because the police will have a record of that persons absence history which may cut across different hospitals or even different mental health trusts. That could very well assist the management of risks.

This list is NOT exhaustive: there are other paragraphs in the Code of Practice where it may be worth committing the thrust of it to memory but in order to keep this list manageable, I have capped it at a dozen things. I would encourage frontline police officers (in which I include custody and communications staff) to read the full text of these paragraphs and consider them in operational situations. They can make the difference as to whether you say “Yes” or “No” to requests that are made of the police and help with building a rationale or audit trail for why you did whatever it is that you did or didn’t do!

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Winner of the President’s Medal, the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award

 

All opinions expressed are my own – they do not represent the views of any organisation. (c) Michael Brown, 2015

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I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current.  Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.

Government legislation website – www.legislation.gov.uk