There is a lot going on at the moment and plenty to throw myself into as I return from a beautiful week in Cornwall. (The problem with annual leave is that it’s always about three months too short.) We are seeing ever more activity and discussion about policing and mental health than we’ve ever seen before – street triage initiatives of various kinds, liaison and diversion services expanding to half of the population (of England) and a range of police forces entering into training arrangements with their NHS partners and in some cases with private training providers to improve the response that officers can give. I’ve often remarked on this blog that the law is an important feature of how we should frame our activity and therefore of how we should frame the training which influences our activity and this blog reflects on important legal issues as we see an increase in activity. You’d imagine that concern with legal issues would be self-evident and at the forefront of how we attempt to (jointly) respond to mental health crisis incidents but it often isn’t – and we do need to be careful.
We have been gifted a particular statutory settlement – only recently reviewed – and this is supplemented by the rulings of our courts. These frameworks set the boundaries of our activities and should influence our services right across policing, health and social care.
Prior to the recent outburst of activity, we have seen many years in which police officers have attempted to resolve difficult incidents in private premises: knowing that s136 of the Mental Health Act 1983 is not an available option, we have seen various attempted subtefuges. The Sessay, Seal and Hicks cases all bring a reinforcement of the legal boundaries where officers have stepped over the line. You can’t just substitute the Mental Capacity Act for s136 (Sessay); you can’t arrest for one reason and then instigate s136 once outside the private premises (Seal) and you can’t resort to Breach of the Peace without an intention to bring that person before a Magistrate (Hicks). We’ve seen these improvisations because police officers have increasingly found themselves unable to draw upon mental health professionals during these incidents. Even before s114 of the Mental Health Act was amended by the Mental Health Act 2007 to remove the statutory duty to ensure ‘sufficient’ AMHPs were available, there was still a difficulty accessing them for unscheduled, especially police-led incidents.
So now we see the introduction of street triage schemes aimed at addressing these problems, and they often do. (It seems that the time for arguing the problems shouldn’t, by law, have existed in the first place is gone.) Mental health nurses, with access to NHS information, are often able to reassure officers that detention is not needed and therefore any subterfuge is simply not necessary. Where urgent intervention is still required to ensure immediate care or control, it has been interesting to note various street triage schemes advising officers that they can do what the Sessay judgment already told us we can’t. It has been interesting during my time at the College to speak to various groups of individuals from psychaitrists, IPCC investigators and Approved Mental Health Professionals and offer them the dilemma: what would you do in the kind of care witnessed by Sir Paul BERESFORD MP? They typically tended towards illegal solutions because the only legal option – an AMHP with a s12 DR and possibly with a s135(1) warrant that would take hours to arrange – was so bureaucratic and unlikely to be possible or practical, that it wasn’t really considered.
THE STATUTORY SETTLEMENT
There are various ways in which our mental health system does not take full account of the implications of our laws, in the way that it constructs its activity. This potentially arises because our laws have remain fundamentally unchanged since the time of county asylums and institutionalised care. We can see this in the HM Government review of the operation of ss135/6 of the Mental Health Act 1983 (2014) has focussed on reform of the details of how those laws work, rather than on whether the laws themselves are actually fit for a 21st century, human rights oriented model of community mental health care. We also see it the availability of acute inpatient beds and of Approved Mental Health Professionals – the Mental Health Act and the new Code of Practice (2015) makes it clear that there should be sufficient AMHPs on duty to fulfil the statutory responsibilities that they own; it is also clear that local areas need to have arrangements in place to ensure AMHPs and DRs can admit patients to hospital urgently.
Police officers in particular are professionals who know how challenging these things are: we see how few AMHPs are on duty when contacting Crisis Services in a range of situations that may require them. We see how long it takes for some s136 assessments, for the near-impossibility of securing an AMHP to a private premises after police officers attended a crisis incident that may need an MHA assessment or a s135(1) warrant to immediately safeguard someone at risk. Custody officers are very aware of how difficult it can be for AMHPs to complete MHA applications and the difficulties that Doctors have in identifying an available admission bed. (Yes, it is the Doctor’s responsibility, not the AMHP’s, to identify the bed! – make sure you’re chasing up the right person, if you’re experiencing delays.) It is therefore a particular kind of torment to see how the services we have are not arranged for the laws we are supposed to be operating to, given the model of care we’re trying to provide.
RIGHTS AND RESPONSIBILITIES
So you have only two conclusions here: either our laws are not fit for purpose or our services and our responses aren’t. We know that some mental health laws have just been reviewed by the Home Office and that they have reached conclusions which have since been mentioned in the 2015 Queen’s Speech and which will be subject to primary legislation later in the year so we know that ss135/6 broadly reflect the will of Parliament, albeit children are to be banned from custody and overall detention time shortened to 24hrs. What the review did not recommend, was any fundamental alteration to police powers, AMHP responsibilities or those of any other mental health professionals. So it is against that backdrop that street triage in particular needs to develop.
I wrote quite theoretically last year about what I called ‘eight dimensions’ of street triage: it was an exercise in imagining those critical factors inherent in any incident to which such new schemes could be called: was the incident in public or private; was there immediacy in what was required and was there any objection on the part of a vulnerable person? We know that none of these factors will be altered by the legislation that will come later in 2015/6 so the statutory settlement not only remains the same as it broadly has for the last fifty-odd years, but Parliament will have deliberately reinforced it as recently as now. And all other aspects of our statutory settlement remain the same: there is no power for mental health nurses or anyone else, to override a person’s control over their own home; there is no power to detain someone in mental health crisis pending the arrival or involvement of a triage scheme; there is still a need for an AMHP to be involved in removing a vulnerable person from their home, should such need exist.
This is our statutory settlement: all services and all professionals should take note.
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