When I woke up this morning, I was greated with a familiar message on Twitter from a duty inspector: “We have a male who has been sectioned under 2 MHA but they say there’s no bed. He’s been here all night and no word of any bed today. Can they do this and just expect us to lock him up?” I sent back the hyperlink to a BLOG I wrote three years ago and sent some advice on escalating the incident to senior police officers and trying to do so to senior health managers. The duty inspector then added that he’d been told there were “no mental health beds in England” and that they were having to try and ensure this guy’s wellbeing whilst knowing perfectly well he should be in hospital. A lot of NHS telephones seemed to be turned off during office hours, from what he reported back and he was told by one nurse during the process that “the other inspectors turn a blind eye.” That’s almost an incitement to corruption and false imprisonment – right there, folks!
So off we go again: this kind of situation is the single most common kind of problem incident I am contacted about at the College of Policing. It occurs way more often than weekly, on average two or three times a week; and of course, those are only the examples which people flag up or where they seek advice in resolving the problem. Who knows how many people are just cracking on and trying their best without telling me – most of them, I’d imagine. Of course the first thing is to recognise that there is a problem to face: in the scenario, as flagged up this morning, the person in police custody will usually not be ‘sectioned’ under the Act. It’s a common myth that when a Mental Health Act assessment concludes with the news “He needs admission under s2 MHA” that the legalities kick in from that point. In fact, a person becomes ‘sectioned’ at the point where an Approved Mental Health Professional makes a written application for admission to a specified mental health unit and if there is no obviously available bed, then the application won’t have been made.
That means the person in custody remains there, subject to whatever legal framework brought them in originally. If that was an arrest following an allegation of a criminal offenc, then PACE governs detention and it’s a case of either prosecute the person or release them from custody, with or without bail depending on whether the investigation will continue whilst that person is in hospital. There is a police force in England being sued in connection with exactly this kind of problem, so where does the liability sit if the police were doing their best to ensure the safety of someone whilst the AMHP, CCG and / or MH trust were – between themselves and for whatever reasons – unable to comply with the obvious legal duties that rest upon them?
In 2015, the Royal College of Psychiatrists launched an independent commission of inquiry chaired by former Chief Executive of the NHS, Lord CRISP. I was privileged to be one of the commissioners supporting that work and we looked at the question of whether there were sufficient acute inpatient beds for adults in England. It was obvious from just the first meeting of the commissioners that the answer was not going to be a simple ‘Yes’ or ‘No’ – whether or not a particular area has sufficient supply of inpatient provision was often connected to whether or not they had the correct balance of alternatives to hospital admission. There were many mental health trusts where they rarely, if ever, sent patients out of their trust’s area to another mental health trust and never used inpatient provision in the private sector. Other trusts did one or both of these things with varying degrees of frequency and often believed that they didn’t have enough beds.
So the commission found that in addition to 16% of patients in hospital not needing to be there in the first place; they also found 16% who were medically fit for discharge but could not yet leave because there were shortcomings in post-hospital support. That may have been something to do with housing, benefits or drug and alcohol support, but it prevented discharge. But whatever the reason, if a patient has become acute unwell enough to require admission and no bed is available, then you don’t have enough beds at that time, irregardless of whether the real problem is difficulties in community or crisis provision, alternatives to hospital or problems discharging others once medically fit.
So do we have a beds problem? – depends on whether you think there is still scope to deinstitutionalise our mental health system to community provision, or whether that balance has been reached. For what it’s worth, I think there is still room to deinsititionalise but that the real reason ‘care in the community’ hasn’t worked, is because it hasn’t been properly tried yet. And I suspect we’d find if we looked at it, we’ve disinvested in community mental health services about as much as we’ve cut inpatient mental health beds over the last few years.
SECTION 140 MHA
Connected to all of this, I recently bashed off a number of Freedom of Information requests to Clinical Commissioning Groups in England, asking about section 140 MHA. I’ve done this before. This section imposes a legal duty – ie, it is compulsory – on CCGs to specify those hospitals in their area which are in a position to receive patients in circumstances of special urgency; and those which are specified to receive patients under the age of 18yrs. In total, I did another two dozen FoIs – that’s in addition to the three dozen I did about two years ago. I asked again for the names of the hospitals that had been specified for the ‘urgent admissions’ purpose; and whether or not anything was done in commissioning to ensure those hospitals were run in such a way as to ensure available capacity for urgent admissions, for example, operating at the 85% threshold recommended by the Royal College of Psychiatrists. One difference between my first and second batch of FoIs is that during the intervening period, the Code of Practice to the Mental Health Act has been updated and republished, now making specific mention (para 14.74) of the duties on CCGs under section 140.
The replies made for very depressing reading: over half of the respondents said, “We do not hold this information – please contact the Mental Health Trust.” Why would a mental health trust hold information about how a CCG had discharged a legal duty that rests not with them, but with the CCG itself? Even if the MH trust did know the answer, you would imagine the CCG would have to retain a record of it in case of things like … Freedom of Information requests – or NHS England inquiries. It’s seemed to me a bit like someone writing to the Chief Constbale to ask something to do with the use of police powers under the Children Act 1989 and the reply saying nothing more than, “Contact social services.” I’m therefore forced to conclude again, that CCGs aren’t complying with their legal obligations under the Act to even know about this section or what it means, never mind to actually commission services in such a way as to give effect to its intentions.
Finally, even those CCGs who could send me the name of a hospital, there was nothing happening to ensure the hospital operated in such a way to mean it actually did stand a chance of consistently being able to ensure the admission of a patient in urgent need, as per the ruling in the MS v UK case (2012). So I have to conclude that the deliberate decisions being made about the commissioning of public mental health services are being taken by people who often don’t know about the obligations that international law inflicts upon how the services need to be able to operate.
So this gets us back to the broader, positive duties on public authorities including CCGs and mental health trusts, to ensure the European Convention rights of those in contact with the UK’s state agencies. The caselaw of the European Court tells us that failing to expedite the admission to hospital of people detained lawfully in police custody can amount to an article 3 violation; it tells us that detaining people in settings not intended for the purpose that sits behind their detention can amount to an article 5 violation and we already knew that there is a more obvious article 5 problem if someone is detained somewhere in circumstances where domestic law does not allow for it.
Imagine if the police had arrested a man for an offence and were found out that he was acutely I’ll with a physical health condition: let’s say he was found to have serious cardiac probelms. Imagine if the Force Medical Examiner attended custody and said, “this man needs to be admitted to hospital for care!” He wouldn’t stay in police custody until that admission could be organised – he’d be transferred to A&E to begin to ensure his wellbeing and more appropriate monitoring of his condition. It may be that A&E isn’t appropriate for someone with a mental health condition, but why not transfer someone to a health-based Place of Safety, for example? All of this hits the buffers of capacity and provision, obviously – but we should have some idea of what we’re trying to do here, especially if the current arrangements are so unacceptable. And unlawful.
From just a bit of dip-sampling that was far from being anything I’d pretend to call research, it is a massive under-estimate to suggest that these kinds of problems occur about ten times a day in England – that’s over three and a half thousand times a year we’re subjecting people to the indignity of custody when we’ve already determined they are so unwell as to need inpatient admission. If almost all of them did amount to a human rights violation, as well as to a personal tragedy for those affected, it needs urgently examining, at the most senior levels of the health service because this stuff is not just a bad thing, it’s almost certainly unlawful.
I’d hate to think about how the expectations of the UN Convention on the Rights of Persons With Disabilities hits these scenarios – I could easily imagine some senior figures would probably faint.