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!
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