I’ve been thinking a lot about training recently. Apart from the fact that College of Policing are engaged in a large amount of work to prepare national training packages for the police right across the whole breadth of ranks and roles, I’ve also been involved in delivering a fair amount to a range of groups including student paramedics at universities, CPD for paramedics already out there doing it for real as well as police groups like the new Direct Entry superintendents. I’ve found myself invited to training to see for myself what some areas have been doing and have seen some of the training that areas are delivering to their new street triage schemes as well as on specific subjects, like Mental Capacity Act training in one force area. Good to see so much activity!
It’s been the thing for quite some while that where it’s thought to be necessary or beneficial, police forces get their local mental health colleagues to assist in the delivery of training to police officers. In fairness, it makes such training relatively easy to organise given that police forces and officers have historically not had too many of their own staff who would feel confident to stand up and talk on the subject because of the inevitable “What if … ?!” questions that would follow.
Partner organisations are often keen to influence policing in one direction or another for various different reasons and I remember a few years ago hearing from an AMHP in a northern police force area who was quite frustrated that their local offer of training to the police had been turned down. They were desperate to influence police over-use and misuse of section 136 MHA which was filling their emergency mental health system with a large volume of people who probably just needed a night in the cells or in A&E for drunkenness offences.
What I want to do in this post is simply make the argument that we need to caution against two things when it comes to training we start dishing out to each other: accuracy on legal issues and conflation of legal issues with local policy. Legal literacy.
The first time I sat in a room listening to a local mental health professional telling police officers how they must handle detentions under s136 MHA, I will fully admit I was chewing my own fist by the end of the session in frantic attempt to stop myself from shouting out “No!” at various things that were said. The law does not provide clear black and white about every issue on which you may want certainty but that does not mean that everything is a subtle shade of grey. Some things are just RIGHT or WRONG – because the statute is clear and / or because courts have ruled. We know, for example, that police officers who have removed a vulnerable person to a place of safety are legally able to leave that person in the care of nursing and / or any support staff at that facility and that the person can remain detained against their will under s136(2) MHA.
That this proposition is true is clear (in not just my view) from the law itself. It’s written down in the well-regarded Mental Health Act Manual by Professor Richard JONES and can be found in other documents like the Royal College of Psychiatrists Standards on Section 136. Many place of safety services have operated on this basis for years. Only yesterday I visited the Place of Safety in Birmingham which I was involved in setting up nearly five years ago. I heard various anecdotes from the lead PoS nurse about how keen they are to release officers wherever they can because it means the police are more willing to remain and support them when that support is genuinely needed to ensure safety. Yet that first time I witnessed a local AMHP delivering training to local police officers, this legal point was denied – we were told that it is simply not legal and that the law demands officers remain at a PoS until after the AMHP-led assessment irrespective of everything.
I’m not referring to an isolated error here: this training was, of course, based on a local Place of Safety protocol that absolutely maintained this legal myth.
I could go on …. and and I think I will! —
Apparently, if a paramedic tells a police officer someone “lacks capacity and needs to go to hospital for treatment” the officers will then be legally justified in relying upon the Mental Capacity Act to defend their actions after effecting that removal to hospital. More fist chewing at this end. This is simply not necessarily true. Of course, if that medical matter is quite literally life-threatening it probably will be true. But if the person’s medical matter is not life-threatening or life-altering, it may not necessarily be the wisest advice you’ve had.
Apparently, police officers not only can search but MUST search all people they legally detain and deliver to a hospital. This would cover emergency detentions under s136 MHA, re-detention of AWOL patients under s18 or s138 MHA or those removed to a place of safety under s135(1) warrant. Again, quite simply, this is not true. Grounds to search people come from s32 PACE and that does not permit routine searching of everyone who is arrested or detained. There are criteria to be satisfied to justify searching anyone who is detained or arrested and whilst it may often be satisfied, it won’t always be. It’s legally inaccurate to argue it can be done routinely. (Incidentally, the right to search under s32 PACE exists only for those people who are ‘arrested’. In law, some detentions under the MHA are regarded as ‘preserved powers of arrest’ by s26 PACE and they are listed in Schedule 2 of PACE. You’ll notice that the list in Schedule 2 does NOT include s135(1). There appears to be no specific power whatsoever to search someone detained under a warrant for removal to a Place of Safety.)
CONFLATION WITH POLICY
What the law says and what a local policy says, may be two different things – think about the above mentioned policy that pretended that police officers cannot legally leave a patient in NHS care because staff would have no legal powers at all to ensure the person remained safe by continued detention pending assessment. In many areas this myth abounds because the NHS Place of Safety has limited (or no) staffing and that legal error being furthered as fact assist in persuading police forces to staff NHS facilities for them. As soon as you admit that a nurse is allowed to keep the door shut and continue a legal detention, you have to have better reasons for not staffing the location properly, in accordance with Royal College of Psychiatry Standards (2011).
AWOL policies also contain examples of this – the law allows patients who are absent without leave to be redetained and returned by a police officer, an AMHP or by anyone else authorised by the hospital managers. Indeed, the Code of Practice to the Mental Health Act goes further and (in paragraph 28.14) makes it clear that in some circumstances redetention of patients should be done by mental health professionals. Of course this raises various questions for mental health trusts. Many of them don’t provide suitable training to their community mental health teams to undertake the redetention of uncooperative patients. Many of them don’t have clear policies in place for which part of a trust would undertake this function. As such, it has historically been seen as a police function with all requests being phoned through to officers. I have experienced incident logs on many occasions which request officers attend a certain address to ‘bring back’ a patient. When you ring the caller back to ask whether and why they are certain the patient is at that location, they then often seemed surprised to be referred to that part of the Code of Practice and to their own managers. “But that’s not our policy!” is the reply and we see this reflected in training.
My policy is the law of the country. I accept that local administration means you have to sometimes get specific about how the law is given effect – what are the relevant phone numbers, which forms get filled in, how do we resolve disputes, etc. and of course, how do we resolve those functions that are clouded in ambiguity because of the way the law is drafted. What policy and local training should not be doing is re-writing those laws and statutory guidelines that Parliament has already laid down for our reference, whether that is in the Mental Health or Capacity Acts themselves or the relevant Codes of Practice.
My concern with these issues is beyond mere pedantry – the consequences can be enormous. Remember, the death of Colin HOLT in Kent in 2010 included officers attending a location on their own to redetain an AWOL patient and entering premises where no lawful authority to do so actually existed. I’m not sure what the Kent AWOL policy said or what training those officers have had, but I know for a fact that I’ve been told in my own career that in undertaking such tasks I can have no paramedic or mental health nursing support and that yes: you do have a power to enter the premises, officer. Those officers were prosecuted for wilful neglect in public office and face gross misconduct procedures for what they did.
I’ve seen several emails over the years encouraging officers, incorrectly to rely upon the Mental Capacity Act to justifying coercing vulnerable people from their homes and I’ve heard mental health professionals training it to rooms full of police officers. We already know this would quite often be illegal, because the Sessay case was heard in the courts in 2010. More examples exist on insufficient or inadequate legal knowledge in mental health influencing the actions of the police with disastrous consequences: including, most recently, the inquest into the death of Kingsley BURRELL hearing that police officers and junior ambulance technicians (one of whom was still in training and yet to qualify) being asked to convey a semi-sedate d patient notwithstanding what paragraph 11.5 of the (old) Code of Practice may have to say about the subject.
It’s long been my own practice for well over a decade to go back to source material on mental health and capacity law and to speak to lawyers about it, or to read what they write. Most of us probably don’t realise how little legal training mental health professionals receive in their training. Apart from those who qualify as Approved Mental Health Professionals, training is very limited. AMHPs take a qualifying legal exam as a part of their post-graduate education but for example, some mental health nursing degrees contain just a few hours of law covering the main sections that are applied in hospital inpatient care. Psychiatrists have to do some law in a qualification course that lasts a couple of days when qualifying as “section 12” Doctors (England and Wales). I’m not trying to knock mental health professionals themselves: I know many mental health nurses in particular with very good legal knowledge, most usually self-acquired because of that person’s particular interest.
Police forces need to ensure they are quality assuring the training their officers are receiving because untoward incidents are littered with examples of where we’re operating against a background of legal inaccuracy and policy conflation. We should be careful.
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