This debate about police legal duties in mental health wards continues: I’m on a train to London as I type for further meetings to discuss the legal advice the College of Policing have received from a QC on this topic. We fed in a range of questions and concerns about the legal duties of police forces in a variety of contexts where incidents on wards may involve disorder or disruption. Some of these hypothetical questions involved weapons and crimes, others did not. We asked about the relevance of NHS intentions: are they ringing the police to report a crime, ask for assistance in restoring safety when control is lost; or both. It’s proving to be extremely interesting stuff, from my point of view.
In case of any doubt, legal duties means those things the police are obliged to undertake and where there could be criminal, civil or disciplinary liabilities for the officers or the Chief Constable if they did not attend to them. This should be distinguished from what we might (badly) describe as a moral duty – those things that some may argue is an obligation falling to the police bearing in mind the various ways in which to approach ethical issues. The advice is twenty-four pages long and this is what I think it says in a few bullet points –
- The police have a legal duty to investigate allegations of crime brought – this does not amount to creating a duty to attend a particular location or to attend it immediately. Any decision to give an emergency response would be as a result of other factors within the incident.
- The police have a legal duty to protect life and the right to life – where this is at risk, they have a duty to respond and this could include, for example, that the crime is in progress; someone is seriously injured or could be as a the result of the incident involving a weapon. (This list is not exhaustive.)
- The police have very few legal authorities which are exclusively theirs – powers under the Police and Criminal Evidence Aact 1984 around arrest, search and seizure are reserved to police but s3 of the Criminal Law Act as well as all those opportunities under the Mental Health or Mental Capacity Acts are available also to healthcare professionals.
- The NHS have legal responsibilities of their own – to their patients, their staff and to anyone else who walks on to their property to create a safe environment; to have health & safety procedures and risk assessments to mitigate foreseeable risks and those risks must be assessed in the context of the kinds of services mental health trusts provide.
This raises important questions: essentially the message is one that I’ve pushed on this BLOG for several years – in that regard, I was quite pleased to read the advice because I’m very far from being a QC and the main learning for me was the specific stated cases which amplify the arguments I’ve put for some while –
If you are in the professional business of detaining other human beings against their will and then forcing them to remain in a particular place you have to prepared for the need to prevent them from leaving. This will occasionally involve forcing people to receive medication they may not want and where that involves restraint or transfers to other wards or units, then you should plan and prepare for the reality of what it will take to achieve that. It will mean you may have to physically take hold of people and will give rise to other questions about things like the training to be required for NHS staff and the transportation to be used, etc..
What I will put out there for discussion – because we are going to need to discuss this, folks! – is that some mental health professionals who are following the debate have said that it’s really important that police services continue to support and work closely with mental health trusts. I need to address this directly: firstly, it’s such a generalised, bland statement that no-one could reasonably object to it! … but nor does it tell us anything. Remember, whilst the police service is a partner organisation in a meeting room, the 999 operational officers who attend incidents aware independently attested legal officials who exercise a considerable discretion in the execution of their duties. There is a limit to what a police inspector in the BLOGosphere or a Chief Constable in a policy document can direct and commit officers to do where they are inclined to choose another, less restrictive and perfectly lawful option.
But secondly, it often seems to me to be a highly euphemistic hint that we don’t disrupt the apple cart – perhaps because this is difficult, sensitive stuff? I know some have wondered whether this whole affair is the police saying “We’re not coming!” Indeed, I received an email from a psychiatrist who demanded to know the authority that the College of Policing have to undertake this work and asking whether we are arguing someone has to be hurt before the police will attend a ward? … it is often pointed out that police officers come equipped with stab-proof vests, incapacitant sprays and Tasers, as well as personal safety training so we should attend where there are risks being reported.
There are just a few things to say about this –
- Except where the police are exercising their legal powers around criminal investigations or where they are managing serious risks to life, which would usually (but not always) involve some kind of criminal offence; they have no legal powers beyond that which mental health professionals have available to them already.
- Otherwise, those equipment would be considered anathema to mental health professionals for incidents which are about the treatment and care of of patients. So if mechanical restraints are a bad thing and NHS trusts don’t supply them and train staff in their use, why would staff call for them to be used by others in connection with treatment and care?
- The only extra dimension the police bring to a restrictive treatment situation is personal safety training – but we know that the NHS can chose to give such training to their staff and to a very large extent, if it chooses not do so, this is a matter for the trust and CCG concerned, as well as the CQC. It doesn’t automatically trigger a legal duty for police officers.
Finally, let us remember why the apple cart needs disrupting and why this discussion must occur: there have been several inquiries in just the last couple of years that require the police service to get in to this. The ADEBOWALE Report (2013), the Home Affairs Select Committee report (2015) are just two I could list. You’ll see concerns about police officers on mental health wards within the suggested amendments to the Mental Health Act 1983 because MPs who are high profile campaigners on mental health have tabled it directly. Organisations like Black Mental Health UK are right to raise concerns about the deployment of officers with very different equipment and approaches to what are essentially clinical incidents. You’ll also remember that there have been two high-profile deaths of mental health inpatients in contact with the police whilst detained under the MHA and in each case both the police officers and NHS staff faced criminal investigation because of the mess that the whole thing represented. We shouldn’t also forget the homicide of a mental health professional after a patient returned from authorised MHA leave with a large knife and fatally attacked her – so we need to ensure the police attend what they must, but that they don’t become inappropriately engaged without a way to hand back responsibility for clinical care to the healthcare provider.
The stakes on this could hardly be higher than the need to ensure people stay alive, hence the need to make sure we get this right and it would be foolhardy to keep doing what we’ve done before knowing it is predicated on false understandings of duties and obligations and has led to the consequences we’ve already seen. If we want to create an environment in which the police recognise where their role does extend to attending wards to support NHS staff, we also need to do this by ensuring the NHS don’t unwittingly create conditions in which the police is taken for granted by routine requests to undertake tasks that the NHS is legally obliged to prepare fora nd which the police service has neither a legal nor a moral duty to undertake. There is a line to be struck here and a need for everyone to look at their understanding of things: but we cannot avoid the reality that we must do so within the framework of the laws that govern us all.
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