This week I spent some time in Northern Ireland, a place I’d never been before. The visit was part of the Royal College of Psychiatrists independent commission on acute adult psychiatric care and it gave me an opportunity to visit mental health services in Antrim before a dash into Belfast city centre for the commission’s fifth meeting. I thought Northern Ireland was a beautiful place: apart from the spectacular views of a major cruise ship leaving Belfast docks and heading out into the Irish Sea as my flight began to turn over the city and prepared to land, the view over Antrim towards Lough Neagh was also incredible! More importantly still, I was struck by how friendly the people were: I learned almost as much about mental health in Northern Ireland from the taxi driver who helped me to the hotel than from anyone else and the NHS staff and patients at the hospital were beyond welcoming – I really learned a lot.
I had written a short paper for the commission’s meeting on some work I’ve done in policing that relates to hospital admissions – those of you who have followed this BLOG for a while or have heard me discussing these issues know that I’ve argued for many years that bed management problems can often give rise to illegal detention in police custody and to human rights violations. I’ve also argued that we take insufficient regard of s140 MHA in how mental health services are commissioned. It was therefore with some timing of spectacular irony that I met mental health professionals in Northern Ireland who caused me to think further about these legal issues only an hour before presenting my work to the Commission and encouraged me that I’m not necessarily banging the wrong drum.
Northern Ireland has seperate mental health legislation: the Mental Health (Northern Ireland) Order 1986. In many important respects, it reflects the Mental Health Act 1983 which operates in England and Wales although there are some differences and the Northern Irish Order has not been updated since introduced, unlike in England and Wales. For that reason, there are no Community Treatment Orders in Northern Ireland – some would argue that this is a good thing, but I mention it just to highlight a difference. I also learned from various sources that psychaitric morbidity in Northern Ireland is as much as 25% higher than in the UK as a whole, that services end up with around 25% less funding than in the UK as a whole and that day-to-day progress in developing mental health services is often caught up in Northern Ireland’s political situation. Antrim wants and badly needs a new psychiatric facility for which plans are well progressed but it needs approving the by Stormont and you’ll notice there are some problems with that at the moment.
THE MENTAL HEALTH ORDER 1986
Northern Irish legislation has Orders where the rest of the UK has Acts and they have articles where we have sections: so article 130 of the MH(NI)O 1986 (MHO) is an equivalent power to section 136 of the MHA 1983. Specifically, it is exactly equivalent; containing exactly the same words in a130(1) and we see in s136(1). There are certain subtle differences however: detention under a130 in Northern Ireland can only last for 48hrs, instead of the 72hrs permitted here but elsewhere, the law has significant similarities and there are often identical or near-identical provisions across the countries. What we now refer to as Approved Mental Health Professionals (AMHPs) are still Approved Social Workers (ASWs) – they make applications to hospital for admission, after medical recommendation.
Worth noting that for admission to hospital under Northern Irish law, only one doctor’s medical recommendation is initially required. This results in there being no real equivalent to section 4 MHA: only equivalents for sections 2 and 3. The second doctor only comes in to play after admission –
Article 4 concerns admission for assessment and it requires the patient to be immediately examined by the second doctor who must then furnish a further report if the patient is to remain in hospital for up to 7 days. Article 12 concerns admission for treatment and one difference is that entry to hospital can only occur via Article 4 or after voluntary admission: Article 12 is implemented for a patient who is already in hospital after a period of assessment. Finally, there is an explicit requirement to be declared in Northern Irish law that is not in English / Welsh law: that failure to detain the patient in hospital “would create a substantial likelihood of serious physical harm to himself or to other persons.”
My paper for the RCPsych Commission concerned admission to hospital from police custody and I have done some work at the College of Policing to dip-sample and estimate the number of occasions where custody is relied upon to detain someone who is in need of admission to hospital but where it is argued an application cannot be made for because there is no obvious bed available. We are all familiar with examples of this phenomenon over the last year and some forces are facing this situation several times a week. Only at the start of this week, I was contacted by a force to highlight a detention which had followed from a woman being arrested for a minor offence under public order laws who was acutely unwell and highly distressed. Despite being assessed and deemed to be in need of admission within around 12hrs, it took a further 42hrs or so to achieve her release from custody and admission to hospital. For various reasons, I just thought about the MS v UK (2012) case when hearing of how unwell she was and no doubt – unlike in that case where the man was originally arrested under s136 MHA – her detention amounted to an Article 5 violation of the European Convention, in addition to the Article 3 violation found in the MS case.
As a reminder: someone becomes ‘sectioned‘ at the point where an AMHP makes an application for someone’s admission to hospital and the same applies in Northern Ireland: legalities under the MHO start when the ASW makes an application for admission. Until such time as an application is made, any detention in police custody that occured prior to the assessment for potential admission remains governed by the Police and Criminal Evidence Act 1984, in England and Wales; the Police and Criminal Evidence (Northern Ireland) Order 1989 in Northern Ireland. So my speculation, based on dip-samples and other ‘anecdata’, is we have between two and three thousand detentions per year in England where applications for admission to hospital cannot be completed within the timescales that govern the custody officers decision-making about the original reason for arrest.
So guess what ASWs do?! – they make the applications to the large acute admissions hospital in the area and convey the patient there. At the hospital, sometimes with support from the Police Service of Northern Ireland and sometimes not, they then begin the process of juggling patients, spaces, beds and so on. Not ideal, is it?! – not ideal at all. Neither is illegal detention in police custody and in many important regards it is even less ideal. You see, as I’ve said many times, technical legal arguments about whether you can or cannot make applications whilst there is still uncertainty about the ‘bed’ misses the fact that a decision made NOT to apply for admission once it’s known to be necessary, also breaks laws and rules – potentially it breaks even more laws and rules, each of which are even more important that the rules you’re adhering to by delaying things.
VERY BORING AND TECHNICAL
Remember that Acts of Parliament, Codes of Practice, other government or regulators’ guidelines and European caselaw all have various standing and relationships to each other – some are more important than others; some are completely binding and others are not quite so binding. Domestic law must be compatible with the European Convention – this is required by the Human Rights Act 1998.; but Codes of Practice are statutory guidelines issued by a Secretary of State, but we know that they are not, ultimately, binding in all circumstances – you must have a damned good reason for breaching them, but you may do so, as long as you have. We learned that in the Munjaz v Ashworth Hospital case in 2005. But you cannot breach PACE or the Human Rights Act without a risk of legal action against you.
So here some sections on Northern Irish and English/Welsh law that I kept reading to understand why AMHPs in England will argue it is unlawful and not possible to do what ASWs in Northern Ireland argue is lawful and, although inideal, better than leaving a status quo where someone is either left in their own home whilst at risk; or illegally held in a police station –
- Section 13 MHA – “If a local social services authority have reason to think that an application for admission to hospital or a guardianship application may need to be made in respect of a patient within their area, they shall make arrangements for an approved mental health professional to consider the patient’s case on their behalf. If that professional is satisfied that such an application ought to be made in respect of the patient; and of the opinion, having regard to any wishes expressed by relatives of the patient or any other relevant circumstances, that it is necessary or proper for the application to be made by him, he shall make the application.”
- Article 40 MHO – “It shall be the duty of an approved social worker to make an application for assessment or a guardianship application in respect of a patient within the area of the board or authorised trust by which that officer is appointed in any case where he is satisfied that such an application ought to be made; and he is of opinion, having regard to any wishes expressed by relatives of the patient or any other relevant circumstances, that it is necessary or proper for the application to be made by him.“
- The italics are my emphasis, to make the comparison.
“Duty” … “shall” – these words are distinct from others that could have been used and indicate a responsibility and a requirement to do certain things; rather than an option and an opportunity. Once the AMHP / ASW is satisfied of certain criteria: they have a legal duty. You can use the links provided in those bullet points to read the more detailed subsections of each provision but you will see that in neither of them are ‘beds’ mentioned, nor the willingness of hospitals to receive patients. I’ve often heard it said that nothing the MHA (and therefore the MHO) obliges the hospital to receive a patient and this is true to an extent: in that such words are not used. You’ll also notice that nothing the in MHA or the MHO outlines that reasonable force may be used to achieve the various objectives and options available to professionals under mental health law: so are you telling me that force can’t be used at all or are we agreeing that certain things about the law may be inferred because they are implied?
Whilst we continue to experience what some are calling a ‘beds crisis’ in acute mental provision, decisions by AMHPs not to make applications after the grounds in s13 are satisfied are also decisions to leave people in the position they were prior to assessment. I have recent examples to hand of where a decision to leave a patient in the community led directly to the commission of a serious offence and examples coming in of people being left in police custody for periods that significantly exceed the limits imposed under law. So irrespective of your view on technicalities of all this, it also comes down to human rights frameworks and the indignity of rotting away in a police cell pending your admission at some arbitrary point in the future. This is often going to amount to a violation of Article 5, often it will also be a violation of Article 3 (MS v UK) and these are violations in which the AMHP and DRs become complicit if they resort to inaction about bed bureaucracy.
We know that hospitals manage to re-admit patients in urgent circumstances and end up with occupancy levels in excess of 100% with extra staff drawn in, so to suggest it can never happen for a newly admitted patient seems odd and ultimately, the attitude of Northern Irish MH professionals impressed me when the pointed out, somewhat obviously, that they’d rather have to juggle demands in hsopital, perhaps even having to ask the PSNI to help them for half an hour or more after conveying a patient from the police station. But they were very plain that this was about human rights and dignity: far-from-ideal detention in hospital rather than obviously-illegal and degrading detention in custody.
I don’t think the decision is actually that difficult.
It was because I know that in all important regards the mental health law governing each area is the same that I got to wondering: why do two groups of mental health social workers each think the practice of their colleagues over the Irish Sea is wrong? … they can’t both be wrong!
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