Did you watch Spotlight on 15th February – this is the BBC regional news for south-west England … why would you, unless you live there?! There was interesting coverage of ongoing issues arising from the use of section 136 of the Mental Health Act 1983 by Devon and Cornwall Police. The debate about where should be used as a Place of Safety was front and centre and the point of the article appeared to be to highlight the ‘tension’ between Emergency Departments and the police – there was a spokesperson on either ‘side’, giving their view. This an example of a local tension that needs some historical context and which does directly link to national issues. (If you want to watch it, you have a matter of hours to do so! – but the key quotations are below so this continues to make sense.)
Only yesterday, I emailed the Department of Health and Home Office about an exactly similar argument in the south-east of England … anyway, we’ll get to all that: but pause first of all … pop the kettle on and get yourself some biscuits, because I think this one is brilliant and enlightening about attitudes and it’s also a complete waste of time spent shouting at the rain … in my opinion. I will explain! –
DEVON AND CORNWALL
Historically, Devon and Cornwall Police has always been a comparatively high user of this legal power, with a high proportion of people detained each year ending up in custody. When they did the first piece of modern research on s136 in 2008, the Independent Police Complaints Commission had Devon and Cornwall down as the second highest individual user of police cells as a Place of Safety. (Sussex was first, incidentally – and they’ve also been on the news this week for reducing it.) To put that in some kind of context, this means use of 136 on a par with or higher than many of the countries biggest, urban police forces and typically way above what would normally be considered to be the most-similar forces. Of course, this force area is not without its cities, its challenges and its deprivation: Plymouth, Exeter and Truro all lie within the vast expanse of these two (very different!) counties. (I admit I like my cream on top, the Cornish way!)
Various ideas have been suggested over the years, ranging from the influx of tourists boosting the actual number of people in the two counties without boosting its resident population and thus skewing the figures; parts of the south-west of England do rank above-average for many negative demographic indicators like poverty, unemployment, suicide levels, etc.. We also know that forces have different attitudes and approaches towards the use of section 136 (especially when compared to how they use other powers of intervention and detention involving mentally vulnerable people) and that this can be affected by the health infrastructure that supports those in crisis, as well as the police officers who are often first responders. All of these things and more besides could perfectly well combine to explain certain things but I repeat my constant mantra that I’d love to see this properly researched and subject to proper statistical analysis.
You may recall November 2014 as the month when Devon and Cornwall Police made national news headlines after a senior officer tweeted about the ongoing detention of a girl in police custody? She had originally been taken to police custody in crisis and the lack of an appropriate inpatient bed meant she spent far longer in the cells than was legally allowed. That incident along with the general work across England and Wales to reduce the use of police custody for those in crisis led the Chief Constable of Devon and Cornwall to write confidentially to partners in health stating their intention to significantly reduce reliance upon police stations as a Place of Safety under the MHA.
I haven’t read that letter so don’t know the specifics, but it seems obvious that the CCGs in the force area have either been unwilling or unable to ensure sufficient health-based Place of Safety provision in mental health units and hence we see this ‘tension’ between the police and Emergency Departments. The BBC article on Spotlight and its online news coverage did not mention mental health trusts or CCGs once in their coverage. Instead, they focussed on whether the police are just ‘passing the buck’? We know that most forces would probably benefit from looking at the training and direction officers receive about use of this legal power, there is potential for officers to simply use it less and hopefully College of Policing training later this year will help forces address that. In the meanwhile, we are where we are –
Dr Anne HICKS, Consultant in Emergency Medicine at Derriford Hospital in Devon and spokesperson for the Royal College of Emergency Medicine on mental health issues said was interviewed on BBC Spotlight and said –
“When we’re crowded, we can have six patients on trolleys … we will have all of the cubicles around us full. You then bring an agitated mental health patient in here and we’re trying to create the space and that creates real tension between us and the police because we don’t feel we can deliver that safe, nurturing space that these patients need.”
I think we all get that, don’t we – at least apart from all those detained by the police being ‘agitated’ to any degree more than those in EDs are already after they’ve spent an evening drinking a gallon of sheep dip and fighting a kebab before falling down? None of us in policing are disagreeing that ED isn’t ideal – not for a moment. But that quote probably wouldn’t be said about agitated RTC victims even where if was their own poor driving that lead to their condition and their subsequent agitation. It also could have been said by the Chief Constable about custody … “six people queued up to be booked in; cells all full; unable to create a safe, nurturing space”, etc., etc.. This should be the first clue that we’re arguing about the wrong thing! More about that in a moment …
In response to these points, the Chief Constable Shaun SAWYER noted:
“For someone in mental health crisis, it should be the professional caring environment of mental health assessment. If that is not available and that individual is not a risk or a threat of harming others or themselves, then to me, A&E is the next place to strongly consider before it is a police cell.”
This reply is something of a text book summary of the legal framework: hospitals and police stations are Places of Safety under the MHA (see section 135(6) MHA); and all areas should agree a local protocol about which places are used in specific circumstances but local practice also needs to acknowledge various other imperatives such as the Code of Practice to the Mental Health Act and human rights law that wasn’t as directly relevant when this law was first written in 1959! Remember, the Munjaz case (2005) saw the highest court in the UK tell us this document must be adhered to unless there are ‘cogent reasons’ for departure. A&E are absolutely entitled to turn the police away and refuse to help someone who has been detained – frankly, some of them do! But this is quite a different legal point to the question of whether or not it is lawful for the police to ask whether they will try to help. You’ll notice the Chief Constable’s words: “A&E is the next place to strongly consider …”
So back to the Code of Practice: it says within –
“A police station should not be used as a place of safety except in exceptional circumstances, for example it may be necessary to do so because the person’s behaviour would pose an unmanageably high risk to other patients, staff or other users if the person were to be detained in a healthcare setting. A police station should not be used as the automatic second choice if there is no local health-based place of safety immediately available.” – paragraph 16.38 CoP MHA.
So quite arguably, the Chief Constable’s direction to his officers is an attempt to get close to what paragraph 16.38 is actually getting at, albeit in non-ideal circumstances – by not asking A&E whether they might be prepared to help that particular person in those particular circumstances and to dash off to custody is to violate spirit and the wording of this paragraph. In fairness to him, the police didn’t write this stuff but they have a duty towards what the Secretary of State is trying to achieve by writing it! Just in case anyone reading this is tempted to question the officers’ judgements and whether or not those detained a really mentally ill, a document from Devon Partnership shows that 75% of those detained by the police are currently open or previously were open to their local services – the hyperlink to this document will follow once I find it again, having read it two or three months ago!
It seems Devon do not have such a local agreement at the moment and I wonder whether that is because the CCG and the mental health trust have gone unmentioned in this coverage – I also wonder why they have gone unmentioned?! Strictly speaking, there is no legal obligation on the CCG to provide a mental health unit based Place of Safety but if a CCG decides not to do as others have done (and where they’ve reduced the use of custody to a handful of occasions a year or eliminated it entirely), then this kind of ‘tension’ seems inevitable. If you were the police officer who had detained someone and you knew both of this paragraph and the certainty the custody officer would ask you what else you’d considered before resorting to the cells as a third or fourth choice, what would you say? – and if you were a Chief Constable, how would you interpret it when giving direction to your officers?!
A WIDER PERSPECTIVE
I have often wondered whether the police, Emergency Departments and indeed the ambulance service wouldn’t be better off just getting together to try and jointly influence CCGs? As you take the wider view of these matters, you’ll see examples of all organisations having room to improve how they deal with those of us in crisis because of mental health problems. They are all guilty of betraying their attitude that those in distress should ‘go away’ – manisfested in far less direct language, but nevertheless amounting to the same thing. A&E can’t provide the ‘nurturing environment’, neither can the ambulance service who have been known to have patients on the back of a truck for hours whilst debates occur as to which part of ‘the system’ should deal; the police are not faultless here and we know examples exist of officers just dropping off people in A&E and leaving without thought to the consequences and I know of at least one such case where it has led to the patient’s death and another where it led to an A&E nurse being greivously assaulted.
These are all symptoms of a broader problem.
Here’s a thing: not ONCE in all my work between 2005 and 2010 to get a properly integrated Place of Safety process set up in the West Midlands involving all these agencies playing their part where it’s necessary to do so did I manage to get all of the relevant health agencies in the same room and the same time to discuss their various perspectives. Not once! The problems that arise are only going to be tackled together where we think how we may jointly address them. I ended up worked with a superb psychiatric nurse and we had to physically flog around various NHS organisations one at a time after they literally refused to sit down together, never mind work together. That issue – right there – is the problem: not the decision-making of those police in Devon who are caught in the operational reality of an integrated commissioning void.
To think otherwise is to spend your time shouting at the rain.
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