It was several years ago that I first sat in a room listening to a mental health professional delivering legal training to the police about mental health and capacity law and found myself thinking, “But that’s not right!” More than once I’ve had cause to review protocols between the police and mental health services which have been written by health or social care professionals and found myself thinking, “But that’s not right!” … legally speaking. When I first had these thoughts, I usually scuttled off to do more reading or re-reading on different aspects of mental health and capacity law but as the years have progressed, I’ve become more confident in just saying so. In the last eighteen months of being at the College of Policing, forces have been kind enough to invite me to attend training events that they’ve run, where they have asked professionals of various kinds to deliver training to police officers. I have had several occasions to flag up to forces that they’ve been given duff information and was recently in a meeting where a training proposal was largely based around the idea of calling the local mental health trust and inviting them to deliver inputs to staff.
So I want to caution against subcontracting responsibility, whilst accepting that this probably comes about because of a lack of national training standards on mental health across policing – something I am actively working on correcting this very week!
In recent examples –
- One mental health trust asking officers to believe that they would have to use section 136 of the Mental Health Act 1983 (MHA) on inpatient wards in general hospitals because section 5(2) MHA can only be used on psychiatric wards. << This is wrong – it can be used in any inpatient situation by any registered medical practitioner and in fact, things go further. The Code of Practice (2015) to the MHA makes it clear in paragraph 16.20 that section 136 should not be used on wards, that staff should use powers under section 5 to ‘hold’ patients for assessment under the Act where this is required. We all know what can go wrong when the police are unnecessarily called in to inpatient settings in connection with mental health issues.
- Another force invited training on the Mental Capacity Act 2005 (MCA) for officers and a lead trainer, who was an AMHP by background, told the assembled operational constables and sergeants that they are empowered to use force to remove a person to hospital and hold them there “if a paramedic tells you they need to go to hospital and that they lack capacity to refuse.” << This could be correct, but it requires additional factors and considerations that were left entirely unmentioned. This advice, with further qualification, is wrong. We all know what can go wrong when the police start misapplying the MCA in private premises.
- I always love the debate about warrants under s135(1) MHA, something which I recently addressed in Liverpool at an AMHP event. I’ve more than once heard and seen AMHPs telling the police that warrants under this sub-section may only be obtained where access to the premises cannot be gained with permission. << This is wrong – it’s also the misunderstanding that sat at the bottom of one of the most testing operational incidents I’ve ever dealt with! … an incident that would be have been as easy as pie if only the AMHP involved had known what this sub-section allows. We know what can happen when the police enter premises to mitigate risks without any legal powers to do so!
- Finally, there was the street triage training I saw – no wonder I’ve ended up concerned about civil liberties in this context. I am particular inclined to recall an email review of an incident where front line response officers disagreed with the advice of nurse who, in my view, seemed professionally affronted that their advice on a man in crisis was ignored. The escalation email betrayed a lack of knowledge by the nurse and the officers were quite right (as well as legally entitled) to take a different view – but how many street triage schemes are predicated on the basis of nurses being experts? They are on mental health issues, of course – just not necessarily on mental health law on which they receive surprisingly little training.
I could go on. The point here is not to denigrate mental health professionals, although I realise that’s the a real risk here – there are many mental health nurses in particular who have impressive legal knowledge and of course formally study mental health law in order to qualify. I’ve learned an awful lot from such professionals and continue to do so. The point here is to caution against the notion of subcontracting responsibility for officers training requirements to another organisations without quality assuring that content.
Only today, we saw publication of a Guardian article which claims that police incidents connected to mental ill-health have risen by 33% in three years, based on Freedom of Information requests made by journalists to police forces. The College of Policing is quoted as stating that between 20-40% of police time is spent on mental health related matters. A few quick incidental points about this article, before returning to the point about training –
- It may be thought that’s a very wide range to claim: 20-40% – these figures were the lower and higher numbers that we know some forces use, not our estimate overall.
- And the claim was not about the percentage of police time spent, but about the percentage of overall police demand connected to mental health.
- There will, undoubtedly, be an element in the rise of better data collection – the police have been learning more, recognising more and therefore recording more of our work as involving mental health.
- So not all of this ‘rise’ will be real – my personal view, for what that’s worth, is that most of it is.
Returning to the original point: I’ve often wondered about the extent to which the legal arguments adopted by some mental health trusts or professionals is motivated – not maliciously – by their vested interests? An AMHP who can persuade an officer that a warrant cannot be secured doesn’t have to undertake the considerable extra activity associated with doing so; a mental health trust who can persuade the police to come and use s136 on an inpatient ward will not have to work out how to apply section 5 and administer the implications of such a decision. And so on.
I really don’t think this stuff is motivated by any kind of malice – not at all. I’m rarely, if ever, convinced these things are about deliberately misleading officers. It just becomes convenient for the police to absorb risk and responsibility and so received wisdom develops that this is the way it should be done – or maybe in some areas that is the way it has always been done? Of course the most common legal error heard in all of this stuff is the one about physical restraint and the use of force, in various situations: outside the example of restraint for seclusion or medication in an inpatient setting, I’ve heard countless times that “only the police have the power to restrain.” You could apply this to situations where AMHPs have ‘sectioned’ someone; to situations where AWOL patients are located and need to be returned to hospital; or to situations where paramedics wish to remove someone to hospital for urgent or emergency intervention under the MCA. It may be true that only the police have training, but it’s certainly not true that only they have a legal authority to do so. That subtle distinction becomes important when you get in to details.
Policing and mental health is usually all about the details!
So where forces are contemplating training or informal briefings, it must be worth checking what’s actually being delivered – and not just on legal issues. Many MH trusts still argue that those members of the public who are detained under section 136 of the Mental Health Act 1983 who exhibit aggressive or resistant behaviours should be taken to police custody as a Place of Safety purely on that basis. The examples continue to build, if they weren’t already convincing, about officers making a perfectly reasonable assessment that someone may be suffering from a mental disorder only for it to emerge later that they were actually suffering from a serious undying medical problem. In due course, I’ll tell a story about section 136 and meningitis that will make every officer in the country question whether it is ever right to take someone to custody unless they’ve first been medically cleared by the NHS.
It remains the case that some mental health trusts actually still want the police to do exactly that for which the IPCC would arrange to criminally investigate them if the worst happened after assumptions had been made about aggressive resistance on detention. So is that trust the best organisation to explain to local police how to discharge their legal duty of care? Perhaps we should accept on mental health, as we do on almost everything else in professional policing, that we work in partnership with many organisations but we are not blindly beholden to them where they advocate wrongdoing – however motivated – and we should be confident we’re developing the expertise to make our own decisions about how we lead our staff and live up to our responsibilities.
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