Earlier today, the Royal College Nursing voted at their National Congress in Liverpool “to lobby to ensure that Emergency Departments are no longer designated places of safety for the purposes of mental health legislation”. So, I’ll cut straight to the chase: that’s not a really thing – in the sense that the word ‘designated’ does not appear in the Mental Health Act, and only appears four times in the whole Code of Practice to the MHA, never in relation to sections 135 and 136 which relate to police powers and places of safety. It’s just not a thing around which to have a meaningful debate because, as a police officer, I simply don’t need to care whether somewhere is designated or not. Those who urgently need ED care because of the nature of their medical needs are going to go there under s135/6 regardless of designation; and those who are detained and don’t require ED in the strict medical sense but where no alternatives exist, may also end up there, especially after the Policing and Crime Act amends the Mental Health Act later in the year. If nurses, doctors or the NHS wants it otherwise, they are at liberty to commission sufficient capacity elsewhere to give real options in the real world and work with their police services to ensure use of section 136 is appropriate.
So, for the record: none of what I’ve written here means there isn’t still work to do by police forces on how individual officers take their decisions about what is the ‘right’ thing do, where more than one option exists.
Whether or not a place is ‘designated’ or ‘identified’ in a local protocol relating to section 135/6 doesn’t prevent decisions being taken about attempting to rely on a particular location, because at the time, in the particular circumstances, it appears the best way to proceed. Indeed, the whole point behind the 2017 amendments to the MHA, which will come in to effect soon, is to get beyond rigid determinations by managers in offices via protocols about which location or kind of location should be used and on which occasion. In my career, I’ve frequently exercised my legal right as a police officer to determine the place we will seek help for someone who is detained by officers because they are thought to be unwell – and this does include asking ED departments to support someone where the only alternative was police custody. If someone actually needs a MH unit place of safety that doesn’t exist or is unavailable / unwilling to offer support, should that person be in ED or custody? They don’t need ED, strictly speaking, but is ED the least worst option of the two? Who knows! – it probably depends whether you’re asking a police custody sergeant or a ED nurse or doctor, or the person who needs help. What I know is, I’m quite happy to take time to see if we can keep octogenarian dementia patients out of the cells by improvising and I see no legal barrier to ED choosing to help. Indeed, history shows they probably will. Less likely that they will if the person detained is a 26yr old bipolar patient, but that may just be my experience.
About a decade ago, one interesting case involved my officers being asked to locate a lady who had run from a maternity unit whilst mentally unwell, very shortly after giving birth. Officers found her and shared the concerns for her welfare expressed by nursing staff at the hospital but she refused all attempts to help her to be safe. They ended up detaining her under s136 and removing her back to the maternity unit. Was this ‘designated’? … should the RCN have a discussion about the appropriateness of using maternity units, because on of the face of such an idea, it sounds quite ridiculous? Of course, the action taken was to use that hospital as a Place of Safety and arrange assessment there because it represented the best decision in those circumstances – designation didn’t come in to it because it is lawful for a police officer to remove a person to the location that they think is the appropriate choice in the circumstances and ask that location to provide help and care. Whether that location chooses to agree to that request, is absolutely a matter for them but that decision will subsequently be seen in its context: if the officer at that time, for that patient, in that place had no other alternative or if they or anything else supporting or advising them thinks it is the ‘right’ thing to do, ED or whoever sought out remain accountable for any decision to help or turn the person away. Sometimes, it may be quite right to turn people away – just remember, the custody officer at the police station retains that right, too!
Difficulties ED’s and / or the RCN have with the implications of NHS commissioning are things that could and should be raised with NHS commissioning managers, some of whose have been decommissioning MH unit Places of Safety over the last year or two. What #RCN17 seem to be trying to raise, is the lack of alternative options for police officers to support someone outside the ED setting. Their debate, reflected on social media, seemed to broaden out to other issues that were not about the operation of these powers under the MHA. This points are important to bear in mind –
- Most people who are legally detained by the police are not detained under s136, but arrested following crisis incidents which mostly occur in private premises.
- The whole ‘place of safety’ and ‘designation’ debate is irrelevant to them, given that they are being detained under the MHA.
- Most people who attend Emergency Departments are not taken there by the police: they either self-present at ED or are taken there by family, friends or other agencies like the ambulance service.
- This debate will not touch that cohort of people because the ED’s status as a ‘Place of Safety’ or otherwise is irrelevant to anyone who is not detained under the Mental Health Act by the police.
- You cannot get away from the fact that ED is a part of a hospital and hospitals are Places of Safety, designated or otherwise, under the Mental Health Act.
THE REAL PROBLEM
I can agree with what (I think) RCN are getting at here: they seem to be wanting sufficient health-based Places of Safety that are not in ED settings, but which are either adjacent to them, run by the mental health trust, OR which are located in mental health trust premises. Fine – why not just say so?! Focussing the debate on the legally illiterate point about designation (which, I can only remind you, isn’t a legal thing but a proxy term for internal NHS arguments about inadequate commissioning!) is a way of indirectly focussing frustration on perhaps the most vulnerable group of all: those of us who are so unwell that an uniformed police officer has taken our liberty away because we seem to lack agency to make safe decisions for ourselves.
So, the RCN weren’t discussing mental health in ED, or even mental health more broadly: any attempt to debate or change issues around designation is purely an attempt to discriminate between those who are in police custody under the MHA, and those who are detained for other legal reasons, and those who are not detained at all. Bearing in mind the point above: most people with mental health issues detained by the police are not detained under the MHA; most people with MH problems in ED are not detained by the police. This debate is targeting a very narrow group of people who are already stigmatised by virtue of their legal circumstances.
For the record: no-one is saying ED is a good option for those of us who are mentally ill or in distress, or therefore saying that those of us with mentally health issues who are detained by the police under s136. But whether you’re ‘designated’ or ‘not designated’ locally will make not the slightly bit of difference to whether or not the CCG or LHB commissioners are going to ensure adequate alternatives for those patients who do not, per se, require what we traditionally think of as ED care – the broken bones, lacerations, head injuries, chest pains, breathing problems, overdose attempts, etc. Under the laws coming through in just a matter of months, if I detain a 17yr old under the MHA and there is no locally identified pathway, I’ll be heading your way to ED – designated or not, and not withstanding whether there is a ‘need’ for ED care. Likewise if I detain an 86yr old dementia patient when the local PoS facility is full. To do so may be the only lawful option I have available to me – to a location which is recognised by law as Place of Safety under the MHA, which is defined in s135(6) without reference to the use of the word ‘designated’ or to what a local protocol may say.
There is absolutely no legal obligation on any organisation to provide a Place of Safety – let’s just have a think about that. And whilst we do, remember that debates caused by component parts of ‘the system’ pushing against each other cause those of us with mental health problems to think they’re just not welcome in ED – something reflected in the CQC inspection on crisis care pathways last year – and I’m worried that nursing has reinforced this perception by supporting this motion without proprely defining the problem they are actually trying to fix. Many service users have contacted me on social media today to say this is precisely what they’ve been made to feel – and perception is reality for people.
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