There was considerable interest last night in a news story I tweeted – it generated way more than the expected number of replies, it was retweeted more widely than most news stories I circulate. It related to an apparent ‘threat’ by the Chief Constable of Devon and Cornwall Police to ‘take the NHS to court’ around mental health bed shortages. From the 5th September, the Chief ordered a new process to apply to those situations in police custody where people are detained after arrest whilst awaiting an inpatient mental health bed. This usually relates to situations where there is difficulty for mental health services in identifying where a particular bed is available. Less often, I’ve known the problem to be disagreement about what kind of mental health setting is the appropriate one or disputes between areas where patients were assessed after arrest in area 1 when they are residents of area 2 – which may or may be nearby.
Either way, the problem is: Mental Health Act assessments of vulnerable people which conclude with a decision to admit someone but where the Approved Mental Health Professional (usually a mental health social worker, who is legally warranted to ‘section’ people) cannot complete their application for admission within the timescales which are available to the police. And even then, there is frequent misunderstanding about what those timescales actually are! … but that’s for another day.
SECTION 136 MHA
First, we need to clear up some confusion, shown both in the article and in the response it has received in social media land. More concerningly, this confusion is also seen in the media response by healthcare managers to the Chief Constable’s action becoming known. Most of the incidents to which the letter relates will NOT be use of section 136 of the Mental Health Act 1983. Even when police custody was more widely used as a Place of Safety under the Act, there were very few incidents of bed searches taking more than the 72hr permitted maximum. The MS v UK (2012) human rights case was such an example, but they are very rare. It is far more frequently the case that bed searches are problematic for patients who were originally arrested for alleged offences where the subsequent decision is taken to divert them away from the criminal justice system. So talking about the reduction in the use of police cells as a place of safety is the straw man fallacy exemplified: it’s just not what this is all about, except very rarely.
Some social media respondents have also suggested this is the result of austerity and political decisions. It’s not for me to get party political about this, but I would point out that I’ve been banging on about this for well over ten years. There is an example from 2005 of a police force threatening and then preparing to commence legal action about this kind of situation. It involved a vulnerable man spending over three days in custody because of NHS arguments about beds. In that example, the force concerned referred themselves to the IPCC because they were so concerned they were acting unlawfully having taken a decision they would rather keep the man safe when it was obvious he was a serious risk to himself than release him because of an inability by the NHS to comply with our country’s legal frameworks.
So this is not just about politics, either – this was happening when the NHS was at its peak level of funding for the last few decades it’s not just a political point. It’s more probably linked by to the ongoing attempt to ensure that resourcing and obligation around mental health crisis care is transferred from health to policing; just as we transferred responsibility around institutionalisation from health to prisons – the project has been operating under the radar for fifty years or more. Even to the extent that the last two Governments have taken decisions about health funding, it also remains true that NHS England and Clinical Commissioning groups across England have often taken decisions of their own to disadvantage mental health. You may remember about five years ago, NHS England applied a lower level of uplift to funding of mental health services when compared to other services; you may be aware that in the last month, it has emerged that more than half of CCGs plan to cut the proportion of their budgets given over to mental health services. I could go on!
BREAKING THE LAW
Last week I received an email from a police force Chief Inspector who had become embroiled in just such one of these situations and was seeking advice. I saw emails yesterday that show the discussion that was prompted by an attempt to review why a situation had occured in police custody that was almost certainly unlawful. What was most interesting about it, is that the senior health managers in that case made it clear that they did not see the situation as being unlawful at all. They didn’t say why the analysis being applied by the police was wrong, of course. Just that they were wrong. I’ve seen that done many times before.
So here’s the reminder –
- A person under arrest at a police station is detained there subject to the laws contained within the Police and Criminal Evidence Act 1984.
- A person who has been assessed for admission under the Mental Health Act is not ‘liable to be detained’ until an AMHP makes a written application for that patient’s admission to hospital.
- Whether these two things work in effective conjunction will depend on the circumstances in each case, but they certainly weren’t designed to do so: PACE makes no mentioned of ‘diversion’ from justice; the MHA makes no special reference to circumstances where assessments occur in police custody.
- Be default: no mental health services or professionals should rely upon the provisions of PACE to enable the detention in custody of someone who is thought to be mentally ill: that’s why we actually have a Mental Health Act, somewhat obviously!
- The MHA contains provisions to enable the urgent admission to hospital of people who are in need of that; AND provisions to ensure that CCGs and Local Health Boards (in Wales) provide for it, where required.
- It’s a question of how services are commissioned and delivered.
- Detention of anyone outside these frameworks is – very straightforwardly – a violation of Article 5 of the European Convention on Human Rights. Ergo, it’s unlawful!
Just from my own perspective, I do admit to wondering why people are surprised a police officer is wanting to see the law upheld, especially where failing to do so could bring very real legal liabilities for individual police officers and, indeed, for him as a Chief Constable? He was to be able to explain to courts the legal basis for detaining people against their will and where such explanations are difficult-to-impossible because of decisions by other organisations over which he does not assert control, it strikes me that he has every right to secure his own position. We know the NHS does likewise, in lots of other situations!
WORKING IN PARTNERSHIP
Is this kind of thing a threat to partnerships and partnership working? – maybe. But what kind of partnership expects one party to take on board the risks, costs and liabilities associated with the other being unable to comply with legal frameworks that apply to them?! Imagine if the police decided they don’t have the resources to deploy officers to mental health units when disorders occur which threaten the safety and wellbeing of staff; imagine if the police failed to investigate allegations of criminal offending by patients against staff?! Of course, both of those things have occured, in the real world, haven’t they? Did the NHS say, “that’s OK, we appreciate resources in the police have been cut by 20% and that this is very difficult so we don’t mind and we’ll accept it whilst talking reassuringly about partnership working”?
No – they didn’t!
Partnership working is about far more than ‘getting on’ and / or appearing to get on. It is also about challenging each other to improve – challenge can, and does, take many forms in partnership land but the worst news for those who take a dim view of the Chief Constable’s decision to force the situation is this: in all my years of trying to highlight this particular problem, I genuinely regret to conclude that agitation towards ensuring compliance with legal frameworks; and threats or commencement of legal action are the only things that have secured the onward release from custody of vulnerable people who would otherwise have spent many more hours or days in custody than they did. Power to change that rests with CCG managers who could ensure the legal responsibilities they have under s140 MHA (which I would argue 95% of them either don’t know about or aren’t complying with, even if they do) are adhered to. I don’t understand why they shouldn’t be accountable for any decision they’ve taken to disagree with those frameworks.
When our system of hospital admission was introduced in the 1959 Mental Health Act, Parliament did not have in mind the highly deinstitutionalised model of community mental health care that we currently see. But yesterday, the University of Manchester National Confidential Inquiry on Suicide and Homicide revealed again what the Royal College of Psychiatrists Commission on Acute Adult Psychiatric Care already told us earlier this year: the balance between community mental health provision and inpatient care is not right; too many beds have been cut; and there are consequentially risks being managed in the community that shouldn’t be. The police may be a legitimate part of handling the outfall of that, but there is a limit to what they can do – we should agree they have a right to raise their concerns formally if they are being directly invited to absorb the impact of those policy decisions by breaking the law. I will freely admit I do struggle to see it any other way.
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