Bed Management

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.


IMG_0053IMG_0052Winner of the President’s Medal from the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award


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15 thoughts on “Bed Management

  1. Can’t disagree with any of that. Yet again, so many who should know more about the legal frameworks that apply to their areas of responsibility either don’t or feel that they can ignore them because predecessors have done for decades.

  2. We recently had a similar situation where a male arrested for burglary was diverted into the mental health system in custody, ran out his PACE clock while waiting for a bed and then was released and immediately rearrested to prevent a Breach of the Peace while the wait for a bed continued. That sort of ways and means act stuff left a bad taste in my mouth when I heard about it.

  3. My own London MH trust recently had a CQC inspection. Bed situation, as usual, dire. Ppl w psychosis sleeping in the 136 suite, not being admitted at all and in out of area beds. Just the usual position actually.
    We assumed the CQC would come down on our trust heavily.
    However, despite it being mentioned as an issue , it wasn’t treated as the disgrace that front line workers thought they would.
    An off the record conversation with a senior inspector revealed that although they know what the situation with beds is at ALL London trusts , politically they cannot/ will not make a big issue of it. In other words, they know that this is a national governmental matter primarily about lack of resources and therefore to point a spotlight at it risks their own position. Much easier to blame local providers and commissioners rather than see the lack of beds in most areas as symptomatic of a much bigger problem

    1. Disgraceful that the CQC does not make an issue of it. In our area the most common evidence of the chronic shortage of beds is that as soon as you go on leave your bed will be given to someone else, making pre-discharge home leave impossible.

  4. I saw the interview on local news and was impressed that the establishment Devon and Cornwall Police chief made a strong case against mental health services … The govt closed all of the mental health establishments /Asylums and turned everyone who were deemed low risk of endangering themselves or the public ..
    The controversial “Care in the community” scheme. In Devon the nearest hospital for phyciatric care shirt and long term was sold off to a building contractor and had become luxury apartments.
    Moorhaven had a capacity for over 400 patients and over 200 staff … The replacement facility “Glenbourne ” next to the main Derriford hospital nr Plymouth has a full capacity of 40 beds between male and female patients and is really only used for emergency care and a place of safety ( ironically a member of staff was accused of raping a young female approx 2 yrs ago) which I am going to chase up.
    The decision made to close phyciatric hospital and wards was a short term money making scheme to secure finance and votes … Now the repercussions.
    Mr Ian Dunton was a 43 yr old man with a long history of mental disorders he was held in police cells many times for his own safety he was an intelligent caring man refused a bed in “Glenbourne” by his phycharistrist even when Ian’s mother pleaded with him …days after Ian Dunton threw himself under a train … After a enquiry the MH team said they would make changes so this would not happen again .. Surely a case of gross negligence which should hold someone to account but no one even got the sack or any disciplinary action.

  5. As much as I find the article informative I cannot help but feel that the old arguments for beds availability and partnership working are used over and over again.

    As an AMHP in a busy metropolitan area the biggest issue is exactly as you say, we assess with two doctors, find that the criteria (generally under section 2 or 3) are met, get medical recommendations and phone the bed managers.

    “we will find you a bed and call back”

    and wait……………………….

    and wait ……………………..

    If a person is under section 136 then this allows for up to 72 hours and this now is generally used to the very last minute. Leaving clients and families in distress, if there in a 136 suite or (now less likely) police cell then I guess that community assessments are prioritised that would lead to the delay. This is much more difficult where the client is not under 136 whilst in a police cell in which I agree the interaction between PACE and the MHA is non-existent and without the assistance of what I have found to be brilliant desk sergeants and inspectors it would be a lot worse. To stress the rule is no bed – no application – no detention.

    The issue I have with your detailed analysis is that it negates the other work that can take place by AMHPS, the trusts and the police to avoid hospital admission. This may include but is no where near excluded to:

    1. use of the 14 day expiry period until the med recs expire (boils down to a try and see what happens)
    2. crisis houses
    3. MH team support in the community.
    4. Friend and family support.
    5. Residential care home admission (mainly older people or those with LD needs).
    6. Informing partner agencies of potential risks.
    7. probation support.
    8. safeguarding investigations.

    But then im probably biased given im an AMHP and the general lack of public and professional knowledge of what our job actually entails.

    1. I agree with more or less all of that, quite honestly. The only response I have is “it negates the other work that can take place by AMHPs, the trusts and the police to avoid hospital admission.” If an AMHP was saying to the custody officer, we are not going to make an application at this stage because we are going to do some else, potentially less restrictive, that’s fine. The custody officer would then release, bail, caution or charge the offender, as appropriate to the circumstances and let you crack on with those alternative arrangements.

      I guess what I’m referring to here, and perhaps I could have been clearer: is the situation where the AMHP and / or DRs are imploring the custody sergeant not to release the person because they are absolutely adament that there is no viable alternative to detention. Certainly I’ve asked the question directly: are you saying no application because you’re looking at alternatives or are you determined an application is the only route to take and you’re just struggling for a bed?” Every police document I’ve ever read, written or advised on this topic makes it clear that the police releasing a person where PACE grounds are no longer valid is an option and should be the route taken. The kind of dilemma the Chief Constable is flagging up is where doing that would obviously and quickly expose the person concerned to serious risks that would arguably be as negligent as detaining them would be unlawful.

      Difficult!

    2. So the straightforward issue is that there aren’t beds for people who need them…….Family support is all fine, but I did have it pointed out to me that as family you have no legal right to stop a family member leaving the house, whatever the risks might be. So you are right back to square one……. calling the police.

  6. So much truth here and the fallout from the ever higher thresholds for secondary mental health provision and lack of effective crisis service availability in mental health is resulting in huge pressure in all other public services. The outcomes of the crisis concordat work seems patchy at best and although there are some good ideas coming out of this the whole process appears to have become slow and laborious, the opposite of why it was set up in the first place. The political rhetoric around non in patient care for mental health which has resulted in such a hostile operating environment for providers does need to be challenged. Continuing to cut beds without clear direction and significant, sustained investment in alternatives will lead only to increased pressure in systems and suffering for people in mental health crisis.

  7. I’ve thought about this a few times.
    It’s quite fashionable to talk about parity between physical health and mental health and if someone in the cells for arrestable offence is so unwell that the FME thinks admission to hospital is necessary then surely it is a medical emergency.

    If a detainee experienced a physical health emergency an ambulance would be called and they would be transferred to A&E with a police escort until they were well enough to be returned. I can’t remember which PACE code applies but the PACE clock stops from when they leave to when they return to the station.

    Why then couldn’t a person deemed to need a MHAA be transferred to a PoS with a police escort until an assessment is completed and either a bed identified and admission effected or if not detained returned to the station for the normal process to resume??

    Is there a legal reason why this approach cannot or should not be adopted apart from the resource implications? I understand having an officer taken out for a shift would be hard to handle but if it’s about doing something lawful to manage the situation why is this not appropriate or not considered?
    (Is there an obvious reason I’m missing)

    1. There is no legal reason at all why this couldn’t happen and it would still stop the PACE clock – in fact this is something I’ve discussed many times with various people across the agencies. There are two main barriers to this –

      1. Some PoS services who argue that you cannot legally hold a suspect in a PoS and refuse to allow it.
      2. The capacity of our PoS system to handle it because many forces have three or four times as many people in the PACE/MHA category as they detain under s136.

      Bur when the law changes next year, this issue could be forced: what prevents the police bailing someone where a MHAA is sought and then detaining them in custody under s136 and moving them to a PoS?

      1. It’s obvious that if the person is in police custody the police are holding them at the PoS not the staff there. I can see an ethical dilemma for the AMHP conducting the assessment in those circumstances but not the PoS staff.

        It’s surprises me to hear what you say about s136 vs MHAA on people in custody. I’ve know worked in two areas where s136 far outweigh assessments in police stations.

        As for use of s136 from the cell I still can’t see that being legal on the basis of them not ‘being found’. Some one in police custody is no more found there than they are if you let them go and s136 therm as they leave the premises. Sounds very shady.

      2. There is case law on the subject of ‘finds’ and it includes circumstances where a person is in fact taken from a place they are not allowed to be (police custody after being bailed or NFAd) and moved to the nearest public place. Court of Appeal held in a case about public drunkenness that this would still amount to being ‘found’ even though the officer deliberately – but lawfully! – made that situation occur.

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