Legal Education

In 2015 we’ve had the second year of our Concordat in England, the launch of a Welsh Crisis Care Concordat, yet more thematic reviews of various kinds and ever more inquiry reports to read through – and we’re still seeing many of the same problems we’ve seen for some years. This post is about something I’ve raised a few times, but which has probably had less coverage than some of the other stuff – a common legal education for all professionals working at the emergency mental health care interface.  The law is no different in England if you are an mental health or A&E nurse than if you are a police officer or paramedic. The law is the law, whether or not you realise it.

I spoke at an AMHP event this month and whilst making a remark about the general lack of legal education on mental health and capacity law for health and mental health professionals, I took the time to exempt AMHPs from my fairly indiscriminate and outrageous generalisation! … then an AMHP asked me about a scenario that just made me think, “You’re an AMHP – why don’t you know that?!”  I always remind myself when I get questions from police officers, that we gave them very little training on this stuff and that whilst mental health is a background factor in many police incidents, the particular ins and outs of different sections of the Mental Health Act 1983 come up very rarely for individual Constables. So it is unsurprising that questions keep coming but as AMHPs themselves often point out, they have a postgraduate education on mental health and are formally examined at that standard on mental health law – they then do mental health and mental health law stuff (almost) every day. What chance the police will get it consistently right when the AMHPs can’t?!

It reminded me of the complaint I once handled from a mother who was understandably upset that a police sergeant at my station had made an error in his understanding of recalling patients from Community Treatment Orders (CTO). The sergeant had never heard of these things before and had made a punt in good faith that happened to be wrong decision. As a result, the patient who could have been returned to hospital for treatment was not returned and it led to a delay in his readmission which meant his stay lasted longer than it needed to. We can all agree this is not great! – but before I attended the meeting with the mental health professionals and the man’s family in connection with the complaint, a mental health nurse (from the same mental health team actually!) rang my station in connection with another CTO patient, asking police to assist in a recall. When I asked her ‘when and how the recall notice had been served’, she asked, “What’s a recall notice?!” What chance a police sergeant will always get this right when he’s never heard of them or been trained on them if a mental health nurse who cares for such patients most days doesn’t understand them either?!

CASTING A WIDE NET

Let me make the most obvious point: I actually claim no expertise on mental health law – I just picked up the Mental Health Act and read it (way more than once); I then did likewise with the Code of Practice and then repeated those processes with the Mental Capacity Act 2005 and its associated Codes. I’m still making this stuff up as I go along and still learning every day. But I wish to case some very wide assertions! – we just don’t seem to know enough law to get this stuff right at the policy or at the operational levels.  Some examples for you –

  • CCGs who admitted they do not know what s140 MHA means – alarming bearing in mind that the section imposes a legal duty upon those organisations to ensure that Local Authorities are made aware of those hospitals in their areas which can receive patients in circumstances of special urgency. If you’re not aware of it, how can you begin to think through its implications?!
  • Place of Safety services which still do not understand the implications of s136(2) – three queries this week alone on that one, asking whether or not nurses in an NHS PoS can keep doors locked or attempt to prevent patients leaving and if so, under which laws.
  • Officers misunderstanding when warrants are required under the MHA – if an AMHP undertakes a MHA assessment in someone’s home, no warrant is required to remove that person from the premises if the AMHP has already ‘sectioned’ the patient. Section 6 MHA provides an authority to detain and convey and yet officers keep leaving AMHPs up the proverbial river without a paddle by responding to requests for supports with “You need a warrant!” They’re laughing at us, folks! … we really don’t need one. Not at all!

I could go on! … I did enjoy the one about the senior nurses in an acute hospital who fired off a snotty email about hospital security officers who declined to physically restrain and detain a patient purely on her say so. The hospital security officers asked perfectly relevant questions about section 5 MHA and the nurse couldn’t satisfy them, so they declined to act. Turns out those security officers knew more than the nurses about section 5 and she ended up looking quite silly to her managers when the security manager pointed this out.

And of course, I’d have to finish with the front-line response officers who ignored the street triage nurse’s advice about whether or not to implement section 136 MHA only to find another irritated reaction on email and for the officers to be vindicated. That all circled around issues of capacity that had been confused by the nurse and it’s quite arguable that the confusion exhibited means the decision to use s136 was absolutely correct, notwithstanding the apparent consent of the patient who may or may not have lacked capacity.

I hope I’ve made my point!

A NEW PROJECT

Having written those BLOGs a couple of years ago, I mentioned in a recent talk the idea of an ‘Emergency Mental Health Law’ syllabus that cut across those organisations who deal with mental health emergencies, especially where organisations have to interface with each other. It seemed to gain a positive reaction in a room full of NHS professionals and so I’ve resurrected the idea and decided to do something about it. My hope might be to get it badged by as many relevant professional bodies as possible in such a way that it would provide a common syllabus focused purely on those situations where professions come together in urgent or emergency situations with various kinds of learning materials to support it. I’m not suggesting an academic law book here: that’s a bit beyond me and my music degree! – but I am suggesting there is scope for a practical document to assist front line professional improve their understanding, support their decision-making and seek further reading or information if they want it.

I suspect this will take some months, even just to write out the various sections, which I’ve outlined.  I’m going to email this around a bit to drum up support and feedback but then attempt to flesh out the various legal considerations.  My general idea is to have a couple of bits of introduction to emphasise human rights and least restriction principles, in both mental health and criminal law, before then highlighting the various laws that may apply to a situation depending on whether we look at it from the point of view of the location where it occurs or the lead professional involved.  This then allows each professional to understand their limitations and their opportunities to call on another professional’s support, respectively. Finally, to cover the legal frameworks themselves, including the MHA and MCA; the common and criminal law as well as human rights and health & safety.

A couple of screenshots from my outline notes –

 

 

Let’s see how it goes!


IMG_0053IMG_0052Awarded the President’s Medal by
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award


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21 thoughts on “Legal Education

  1. I think this would be very useful, the lack of legal training in mh/ld nursing education is something I’ve long complained about, despite the clinical education generally being quite good. I went and did an Msc Module in Mental Capacity/Mental Disorder to better learn the legal underpinnings of these areas and it was very useful. The problem you can still have is organisations, despite being aware of the law or you spelling it out to them in black and white with copies of said laws, refusing to act. To flip your security officer situation on its head, I had a situation where a patient was placed on a section 5/2 on a medical ward and Security and their nhs boss refused to use restraint to prevent absconding leading to an argument between him and an irate police officer (who’d already returned the patient) with me trying to mediate to little success.

  2. It’s certainly a subject where there is not only a need but a genuine thirst for it by partner agencies. I’m currantly in talks with other services about providing at some basic training, so they at least know what police can/can’t legally. Perhaps the CoP could have a national MH accreditation the same way that the say ICIDP would be accepted across forces and in some cases in private industry. Just a thought.

    On a side note what power would officers use to enter the home address of a person ‘sectioned’ by an AMHP if they did not want to allow access? Can’t see where this is covered anywhere. Had this issue raised a few times where AMHPs have done this in a home addres then called police. Officers turned up and everyone was asked to leave by the patient and they refused to leave the address. I think this is where the confusion over warrants arises.

    1. If the AMHP has ‘sectioned’ the person in a premises and then the AMHP has left the building and the door has been closed, the person is liable to be detained, so s135(2) warrants cover re-entry to search for and remove. Happens a bit, because AMHPs are reluctant to stand their ground in the face of aggression to leave – which I understand if they are on their own.

  3. The fact that the application has been made & the person is in legal custody i.e. the person has been “sectioned” gives me, you & the ambo or anyone else all the legal authority needed to convey the person from A to B. Honest officer it does & MHC explains here 😄👍
    https://mentalhealthcop.wordpress.com/2013/08/29/section-6-mental-health-act/

    Remember plz that most MHAAs actually happen without the police being involved. I know it doesn’t always feel like that but they do.

    Being an AMHP is interesting & challenging & it’s really quite difficult sometimes to be sort of invited into someone’s home & to end up detaining them. There is no law or rules that say the person has to corporate with the process btw & a MHAA is many things but it is also a legal process & as much as we are all sometimes left up the creek without a paddle, I assure you that if we have gotten into the house using all those soft skills we have learned & just by knocking on the door & being decent I assure you that if the AMHP has been able to make the application there is no need for a 135(1) Warrant.

    You are entitled to ask why your services are required etc but in my experience peeps are best served if we work together & muddle through. But it’s best if we muddle knowing the law & the CoP 😄

    1. I get the point you’re making but you’ve not answered the question. What legal power do I have to enter the property if the person does not want to give me access. I’ve often found that consent is often rescinded when the person thinks they’re going to hospital against they’re own will. No offence but I don’t want to be ‘sort of invited’ I either want to be invited or have the legal power to be their without consent. So whilst I agree the person does not have to cooperate with the procedure I’m also aware that they don’t have to allow entry either hence the 135(1) capability. There may well be a power, I just don’t know it and never been told what it is!

      PS. I’m aware that joint ownership etc will negate this is the other person gives permission.

  4. I think I have answered the question. Well at least tried. I think that u are probably looking for a sentence or quote on paragraph number etc & it’s not quite like that. I have several times emailed my local force on the matter & the various Sections of the MHA that allow us to convey once the application has been made & the person is in the legal custody of the AMHP. I will dig one out & come back to you when I get a chance. I anit got my Jones or CoP to hand on a Sunday evening.

    I have also had an interesting convo this week about possible offence under the MHA or indeed MCA if professionals don’t take action or make decisions that could be reasonably expected of them & if that inaction/decision puts peeps at risk by omission.

    Think of it this way. If an officer had arrested someone in a house & they were struggling to remove the person & you were being called to help. Would you even consider the fact that the PIC was objecting to you entering the property to help support your colleague who was merely exercising their lawful duty aka doing their job? I think not would be your answer? You would simply crack on & do it?

    I appreciate that it feels very different & that no offence has been committed & this is about health & that there are all sorts of legitimate questions about you being involved & how services are commissioned etc.

    But the legal power is there, if we are in the house & have completed the application you can, using reasonable force if necessary, enter the property & convey.

    1. You see, faced with the professionally qualified AMHP and the make-it-up-as-you-go police officer – that’s three times I’ve won this month isn’t it?! (Not that I’m keeping score!) 😉

  5. Lols not sure u can claim a win on this officer or indeed the overall score of the mini games😉

    In this instance it was my understanding that we were not discussing the AMHP having left the building. But being in in the house/flat etc, with a completed application & seeking police assistance.

    As u describe it does happen a bit for the reason you give & if we do leave & a bed becomes available then a 135(2) is the solution & u don’t need an AMHP for that, but o suspect everyone will mostly want one 😉 But more often than not it happens because there was no bed & therefore with no Sec 140 provision no application can be made & everyone has to leave.

    The v worst position that we have to improvise a solution to & seek to manage risk is this one – AMHP willing but no bed & a grey legal area.

    All too often AMHPs r having to return, often not the same AMHP btw, to complete applications & arranging the conveying & this can occurs after many days & I have known Med Rec to be no longer valid!

    So in the house, with valid Med Recs & an AMHP Application completed I think there in is all the legal power required to convey. Different if we have to leave & can’t get back in.

    I will let u keep score 😉

  6. I do mean if the AMHP is still in the address, I’m not disagreeing that there’s a power to CONVEY (using force if needed) but is there a power for officers to enter a premises against the home owners will (ie the patient) and use force to remove them? There’s nothing I can see in the CoP or Sec 6 MHA to cover this. Once outside (or having legal access another way) I see no issue, a minor point but one I’ve never had a diffinitive answer to supported by something in writing. Perhaps the work around is the AHMP escorts the person out of the address then we take over. It not so much make-it-up as I go but unfortunately I’ve had too many AMHPs use the “because I say so” line and then be wrong for me not to want something more concrete. I’d rather ask and clarify my legal position before I get to the incident. Is that not what being professional is all about.

    1. If the AMHP is lawfully on premises and has sectioned the person then they are in legal custody by virtue of s137 MHA. The AMHP has all the powers of a Constable and is therefore entitled to remain as a trespasser. If the officers attend in order to agree to the AMHPs request to delegate s6 then it follows, in my view, that the officers have the right to join the AMHP in order to give that delegation practical effect. Like so much in the MHA, and unlike PACE and other police law, so much is implied. And then s139 is your back up defence because how could the approach above be described as anything other than reasonable?

  7. Oh and “Think of it this way. If an officer had arrested someone in a house & they were struggling to remove the person & you were being called to help. Would you even consider the fact that the PIC was objecting to you entering the property to help support your colleague who was merely exercising their lawful duty aka doing their job? I think not would be your answer? You would simply crack on & do it?”

    Section 17 PACE and to prevent a BoP gives me authority to enter depending on the circumstances. So I would crack on but I have the legislation to back me up.

    1. & we get there 🙂 It’s like pulling teeth this sometimes!

      As for biting, I suepect that you are correct. I am only human & have spent years having this kind of conversation with officers, when really we should just be getting on with it.

      So u or both of you owe me a pint i think 🙂

  8. Gents & I am assuming that both of u are & I know that at least one of u is. The MHA gives the AMHP the power/authority of a constable in this regard & if the Application (pink form) has been completed, founded on 2 valid Med Recs or indeed 1 in the case of Sec 4, then the person is in legal custody & the AMHP can delegate the conveying & you or indeed anyone else required can enter the property to ensure they get from A to B, even if the person is saying no thank u very much, or indeed uses more colourful language.

    I would suggest that if the AMHP or the ambo or the CRHTT nurse, or even if the medic was still there (which is unlikely btw) could escort the person to the door or to the end of their garden or public area of any flat complex or shared living situation, then we shouldn’t need u to help to convey.

    I am very happy to have the professional conversation, but I don’t know what else to say that would convince u otherwise.

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