PaCA – The Consultation Requirement

This blog is part of the series which will cover, in detail, the amendments to the Mental Health Act 1983 within the Policing and Crime Act 2017.

For background to the series, see the introductory post which outlines why I’m doing this and what other specific issues will be covered concerning laws that will come in to effect in the next few months. Current Home Office estimations of timescales suggest late November / early December – but this is subject to a number of factors and may change.

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If you look at the so-called Street Triage schemes, most of them are predicated on the idea of police officers contacting a mental health profession, usually a nurse, and seeking information or advice about a person they have met at an incident. The nurse may opt to turn up to the job and do a face-to-face assessment or the may advise from wherever they are, by telephone. Many areas claim that since the introduction of street triage their use of s136 has reduced, in some cases quite considerably. This idea lies behind the new legal provision for police officers to consult, wherever practicable, with a professional before deciding to instigate s136 MHA – that’s what we’ll cover in this post.

This pre-136 consultation is a legal requirement, where practicable – you either must do it, or be able to justify why you have not done it. It’s the one, or the other – you cannot simply use s136 and not explain why you had to crack on. This justification will need to be documented in pocket books for future reference because you can anticipate the legality of s136 usage being questioned if an officer has made no effort to consult and also provided no justification for why they didn’t. In areas of the country where services are also under pressure for their Place of Safety (PoS) capacity, I also anticipate some NHS staff will feel entitled to question the officers about the consultation requirement – especially if they disagree with the necessity of it! – and will become interested if the police cannot clearly say why they had to act.  OR – why did they act by detaining if the advice was not to do so?! – that’s a can of worms explored below.

So you either document –

• Who you spoke to, along with what information they shared with you and what opinion they offered about your actions, if any; OR
• You document why you felt it was not practicable to consult before having to make the decision to detain.

The law says –

“Section 136(1C) Before deciding to remove a person to, or to keep a person at, a place of safety under subsection (1), the constable must, if it is practicable to do so, consult — (a) a registered medical practitioner, (b) a registered nurse, (c) an approved mental health professional, or (d) a person of a description specified in regulations made by the Secretary of State.”

• So this is a requirement to consult before you detain – if you have to detain someone to ensure their safety and there is no time to consult, there is no legal requirement to consult after the detention so proceed to the relevant Place of Safety.
• The law specifies three kinds of professional who could satisfy this requirement: a DR, a nurse or an AMHP. It doesn’t say anything about specific individuals specified locally – any DR, any nurse or AMHP will do, but your local policy should outline the preferred option.
• You’ll have to ask you line manager what telephone number you must ring to fulfill this obligation.

WHAT ARE WE DISCUSSING?

The section, above, makes no effort to explain the purpose of this consultation. Are we sharing information, are we seeking that professional’s opinion about detention; or wanting to understand which PoS to go to if detention is the outcome? Are we asking for risk information which may be known to the MH trust but not the police; or asking about clinical issues like whether the person is thought, or not, to be concordant with any medication they take? The last question sounds like something a bit clinical and nothing to do with the police, doesn’t it? – yet I could tell you the street triage story about the nurse who didn’t ask a patient about medication and then gave officers an under-inflated risk assessment that led to them not detaining the perso. Hindsight indicated very clearly that knowledge of medication issues would have led the nurse to give a different view. (You can guess the outcome of. It detaining the person.) So how detailed do we want to make this stuff?!

Is this enough? –

“Hi, this is Inspector Brown – I’m at an incident with young man who seems to have mental health problems and I want to consult, as per s136(1C) because of the potential that I may detain him.”

I admit if I’m ringing up, I have more questions and I’d be asking them!

“So, in addition to you telling me whatever you think I need to know and any opinion you might want to offer about whether detention might be appropriate. I’d like to know a) any information you have relating to risks to either him or me, including whether or not you have information that he may possess items which could be used to harm himself or me; b) whether he is prescribed psychiatric medication and whether you have any grounds to believe he’s not taking it; and c) what mental health condition you believe he has.”

And this is interesting moral territory for mental health professionals, isn’t it? – what if they are aware that a person habitually carries a bladed item, either for harming themselves or, as I was once told about patient who carried a knife, “It’s his comfort blanket – it’s just something he carries.”  Is a nurse going to tell the police that there is risk information which may then lead to that person being searched and arrested for a criminal offence when the officer finds them in possession of something they’re not legally allowed to have?

THE LEGAL POSITION

Most importantly, officers in this situation need to focus on the legal situation during consultation. This is a point I’ve repeatedly raised throughout the progress of this legislation and have discussed with street triage schemes and their managers. Section 136 can only be used if the officer thinks there is an immediate need for care or control, in that person’s interests or the protection of others.

• How immediate can that need really be, if we have time to delay and make a phone call to the NHS?
• If we make that phone call because we’re not detaining someone as there is no immediate need and we learn nothing new, how can we then argue 10 or 15 minutes later there was an immediate need to act?

Rights and civil liberties are important here. You only need to watch the BBC news or get involved on social media to see frontline officers creating what I’m going to call ‘considerable ambiguity’ about what is occurring legally where they are involved in ‘triage’ encounters.  Some service users on social media report having been held, unable to leave for non-negligible periods of time (measured in hours) whilst waiting for triage to get involved. If consultation can happen quickly and easily, we can agree that information sharing within a few minutes which prevents someone needing to be detained is welcome. But I admit that I wouldn’t be prepared to stretch that point beyond a few minutes before I would feel uncomfortable in not letting someone leave who wanted to. Remember, in the ZH v Commissioner (2013) case, the Court Appeal ruled someone had been deprived of their liberty by being held, unable to leave, for just 10 minutes. Even if someone is not objecting to remaining with the officers, are officers undertaking a capacity assessment of that decision to remain?

Parliament, having just amended our laws, could have inserted something in to s136 which said, “If following the application of s136 by a police officer, a registered nurse offers information or alternatives to detention which negate the original need for the officer’s use of the power, the person may be released from detention” or similar. But they didn’t. Parliament do not want nurses on the street ending detention unilaterally, otherwise they would have said so. Any decision to detain remains that of the officer(s) involved in the incident and this remains true after an officer has been told by a nurse that detention isn’t appropriate.

IN PRACTICE

Ask yourself this: in what circumstances, precisely, would you ignore the advice you’re given not to detain someone and proceed to detain them anyway? If you can’t answer that question, you’re effectively going to be doing as you’re told and yet the decision to detain belongs to the police officer – it never belongs to the nurse. I can think of various situations in which I’d be prepared to detain anyway – I don’t intend to do a disservice to the many excellent mental health nurses who have made great efforts to get their heads around mental health law but I know how little training they get on the legal issues relevant to police detention decisions. As such, examples I’ve come across over the last few years cause me to think some of the advice we’ll receive will be duff, predicated on misunderstanding relevant legal issues and that I won’t know in any given situation whether this was the case.

So my own operational approach is likely to be this –

• If I’m satisfied that the grounds for detention under s136 are met, I’m likely to argue it is not practicable to consult because I am admitting I have to act immediately to keep someone safe.
• If I’m satisfied it’s appropriate to consult, I’m unlikely to be using s136 after the discussion unless they tell me some new information that alters my risk assessment.

Remember, the Code of Practice to the Mental Health Act makes it clear (in para 16.21 (Eng); in para 16.27/8 (Wal) – that s136 should not be used as a route to access mental health services – patients should go via their GP or their community mental health team, where appropriate. So if I’m prepared to put in a phone call because grounds for immediate detention are not met, s136 can’t be the answer after the phone call if that is just about the convenience of a service to have someone brought to them. But what capacity will they have to follow-up the person at home?

Services should be available to people who need them, not withstanding the legal framework that the police may or may not have applied. So I find this consultation requirement the most interesting of all the new amendments because I think I can see what it’s getting at, but I admit to wondering how that will actually work in practice. And I worry in particular that people may be subject to de facto detention by frontline officers or schemes because somewhere in our recent history somebody unilaterally decided that less s136 is a good thing and that we’ll measure the success of these programmes with reference to their ability to reduce the use of a power which is simply not relevant to most of the referrals they receive. (Most street triage doesn’t happen in the street; and most of what they do isn’t triage! – apart from that, it’s well named.)

Areas need to be clear: how are we consulting; why are we consulting; what are we consulting about, precisely – when should officers do as they’re told and how will incidents be handled if they took a view that is at odds with the advice they’d received?

The last post in the series will focus on the ‘exceptional circumstances’ in which police custody may still be used as a Place of Safety for adults – this will not be written until the statutory Regulations are published by the Government.

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Winner of the President’s Medal,
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award

 

All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2022

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I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current.  Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.

Government legislation website – www.legislation.gov.uk

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