The Law of the Land

Did I mention I’d been to France?! … see above! We arrived home late last night and now have a recovery day before the harsh reality of work, first thing in the morning! I had a very interesting experience once I’d arrived at Calais until disembarkment because of a discussion on social media which I found too interesting to ignore and which arose from the lack of beds to allow for an urgent admission to hospital. An AMHP found themselves in an invidious, albeit increasingly common position over the weekend following a Mental Health Act assessment after the police use of section 136. The lead doctor in the assessment was unable to provide a PICU bed to allow the AMHP to complete their legal application to a psychiatric intensive care unit so, after various escalations to NHS managers and no doubt a considerable amount of frustration by all involved, the man was released, his 72hrs assessment period having expired. This happened notwithstanding the AMHP describing the man as a “high risk to others” … and that there were “concerns for safety of the public”.

As if that’s not enough to pique my interest, what really drew my attention, despite my having promised myself I’d spend the journey drinking coffee ahead of my 7th, 8th and 9th hour of driving, was the observation that the “Police can’t do anything, despite concerns”.

Let me cut to the chase – this is nothing whatsoever to do with the police and entirely the wrong problem to highlight. The police had already encountered and safeguarded then man to the extent they are able by law and brought him in to contact with all the correct people: an AMHP and a Doctor. Following assessment by the NHS and local authority they couldn’t arrange any bed placement within 72hrs. It was their decision to release the man when they had a legal duty not to do so. I’m struggling to see that as any kind of policing issue, if I’m honest.

Where a Mental Health Act assessment has taken place and admission is the indicated outcome, it falls to the lead, s12 doctor in the assessment to ensure a bed is identified to the AMHP for admission to occur as swiftly as required. In practice, the doctor will usually contact the NHS bed manager, often a senior mental health nurse, to identify the appropriate unit. That shouldn’t take more than an hour or two, assuming that the area is working in a way, as per Royal College of Peychiatrists’ advice, that wards are at an average occupancy level of around 85%. This allows slack in the overall system for just these kinds of situations: to ensure this man can be urgently admitted. However, Mental Health Act assessments and compulsory hospital admission are, amongst other things, legal processes and they are governed by more than one kind of law.

Section 13 MHA governs the AMHPs legal duty to make an application under the Act –

s13(1) If a local social services authority have reason to think that an application for admission to hospital or a guardianship application may need to be made in respect of a patient within their area, they shall make arrangements for an approved mental health professional to consider the patient’s case on their behalf.

s13(1A) If that professional is — (a)satisfied that such an application ought to be made in respect of the patient; and (b)of the opinion, having regard to any wishes expressed by relatives of the patient or any other relevant circumstances, that it is necessary or proper for the application to be made by him, s/he shall make the application.

The old Mental Health Act Commission (predecessor organisation to the Care Quality Commission) published guidance on this very point, in their 8th and 9th Biennal Reports on the operation of the Act, around the turn of the century. Old though it is, and abolished though they are(!), it represents the last point of guidance I can see from either MHAC or CQC on how this part of the Act should be applied. If anyone knows of something more recent, please let me know!

• Para 4.45 of the 08th Biennial Report –
• “The Commission advises the [AMHPs] have a duty to carry out their functions as prescribed in the Act, and that the responsibility for finding a bed is clearly laid on health care providers whose duty it is to admit the patient. If the patient cannot be admitted for want of a bed, the relevant social services authority, health authority and police authority will be liable if one of more of them fail to perform for the patient those functions which the law requires them to discharge.
• In practice terms, this means that in an emergency the [AMHP] should complete the applications, making it out to a hospital specified by the relevant health authority in the notice required to be given under Section 140 of the Act, and convey the patient to that hospital. The [AMHP] should inform the hospital that he or she will remain with the patient while a bed is organised, but that it is the hospital managers’ responsibility to admit the patient; the patient is per se not fit to be in the community.”

• Para 2.49 of the 09th Biennial Report –
• “The common problem of [AMHPs] finding no beds available when conveying a patient to a hospital for urgent compulsory admission was raised in our Eighth Biennial report.
• We advised that the [AMHP] should remain with the patient while a bed is organised, taking the view that, where the hospital has been identified by a Health Authority as a place that will admit patients in emergencies, it is reasonable to expect the hospital to find a bed for the patient, even though Section 140 does not place a legal duty on it to do so.”

• For clarity – all bold emphasis above is mine, not that of the MHAC.

There are problems with this advice: but there are problems with ignoring it, too. Who is policing compliance with the Mental Health Act itself; who is looking, if anyone’s looking at all, at section 140 MHA? It remains my recent experience that most CCGs and mental health trusts haven’t heard of this provision, never mind have any meaningful policy on how they are interpreting its implications.  (I’ve done dozens and dozens of FOI applications in the last few years, asking different CCGs about this.)

INTERNATIONAL LAW

This situation probably triggers various kinds of human rights considerations, depending on the specific patient and their circumstances at the time. Firstly, failure to admit someone to hospital when they are in dire need of psychiatric care can amount to an Article 3 violation – see the MS v UK case (2012), as an example of that. Other versions of this kind of story see patients held beyond 72hrs and without obvious legal authority and pending the identification of a bed – that would amount to an Article 5 violation of the ECHR. Finally, imagine that a patient who was released from detention in these circumstances killed themselves or seriously hurt someone else – you can imagine a view being taken that Article 2 considerations may apply to any patient suicide.

But in a very real sense, they do – s13 imposes a legal duty to make the application when certain grounds are met and none of those involve beds and / or willingness on the part of the NHS. By not making the application when the act says that you “shall” make it, the AMHP is brought in to question. The old Mental Health Act Commission (predecessor of the CQC) even went so far as to issue guidance on this particular point, reminding everyone that they have a duty to comply with the Act and this advice was obviously subject to legal advice before being put out there. It advised that the AMHP should go to the s140 list and make their application to the relevant hospital. They should then detain / convey the person to that place and resolve the issues at the hospital with hospital managers. I’m aware Professor Jones argues in his books that this approach is ‘of doubtful legality’, but then so is not doing this in the circumstances you’ve described.

The United Kingdom is a signatory nation to the United Nations Convention on the Rights of Persons with Disabilities. Given other points I’d prefer to make, I’ll just leave that comment there, because we can imagine what that might say about all this.

PRESSURE ON AMHPs

This kind of situation is just one of the many I referred to in a recent post on AMHPs as to why I wouldn’t do their job for all the money in the world – but I worry about them in this particular situation. Having delivered CPD to AMHPs on a large number of occasions, I tend to find it almost always the case that AMHPs believe that they CANNOT make a legal application to a hospital unless it has been identified in advance as willing and able to receive the patient. And yet I’ve also met AMHPs who have done so, in extremis, in order to bring pressure to bear on a system that was asking them to absorb intolerable professional responsibility for risk management, way beyond their ability. I’ve also met solicitors and barristers who have given a different to that expressed in Professor Jones’s Mental Health Act manual that the MHAC advice (above) is ‘of doubtful legality’; or at least have gone further to recognise that acting against the advice is similarly precarious.

Firstly, the MHAC advice was issued after taking legal advice – so already, we have a difference of opinion between lawyers which shouldn’t shock many of us.  Secondly, not complying with this advice is also of doubtful legality! You either end up with unlawfully detained patients because professionals are too frightened to release someone, knowing the obvious risks involved; OR you end up with a person being released when they should have remained detained and all the obvious legal issues that can or do flow from that.

Secondly, why should the AMHP be the person who has to take responsibility for not complying with their legal duty (s13) when the situation is not of their making?! I just don’t see that as fair. If I attend a 999 emergency as a police officer and find a man has killed his friend or partner, he’s getting arrested for murder, whether or not the custody sergeant has a cell!! The problems that flow from my decision are simply not for me to absorb – it’s for the sergeant, duty inspector and chief constable to sort out! If need be, police officers can sit with him in the holding area of a cell block for as many hours as it takes whilst they get it sorted. Not arresting him is NOT an option – and nor would that be expected of me, which is perhaps the most important point. I’m not expected to duck my legal responsibilities because of any problems in the system. In reality, were this ever to happen, we’d find the nearest non-violent, non-vulnerable prisoner and kick him out – we can sort out the shoplifting case later. I cannot even begin to imagine any officer of any rank criticising my decision – they’d just be working flat out to support it, by creating the capacity and resilience required by doing something.

HOSPITAL ADMISSION

Of course, it’s always pointed out that hospitals aren’t legally obliged to accept a patient, even where an AMHP has made an application. Fair enough – imagine for a moment it was done, the police and AMHP turn up at an acute admissions unit which also has a PICU unit and the AMHP explains the situation to the ward manager, asking them to escalate to the on-call manager. I wonder how prepared they would all be, when they see a human being in distress, flanked no doubt by the police, and an AMHP pointing out why they felt they had no other choice but to do what they’ve done to somewhat force the issue and remain lawful. Imagine the AMHP and police saying they’d remain at the hospital to help with whatever transitional arrangements were attempted until a solution could be found. Would that manager delude themselves in to thinking that any decision they took not admit the person or in some way make arrangements is entirely neutral for them in terms of any liability for anything that may follow, knowing full well that the AMHP and police will document that person’s name for the benefit of any Coroner or criminal inquiry if the person is not admitted? … or will they start improvising alternatives and perhaps escalating it to their Chief Executive and / or the CCG on-call director?!

This is more than hypoethical: it’s not hard to provide evidence of suicide following non-admission; it’s also possible t show evidence of serious offences being committed by acutely unwell patients whose MHA assessment or admission was delayed when powers under s135(1) were available to AMHPs with warrants. And as other AMHPs were themselves pointing out, there are some temporary solutions which could be considered –

1. Call in additional staff and admit the patient to the PICU anyway but with 3:1 nursing support.
2. Also consider the most well patient on the PICU and transfer them to an acute ward with additional support, whilst considering whether someone in the acute ward could be safely granted leave. Again, we know this happens on occasion.
3. ‘Admit’ the person to the Place of Safety and secure extra staffing or even, some police support, to keeping the situation safe until a bed is found. Before anyone thinks of reasons why this can’t happen, it’s happening 2/3 times a month in just one MH trust I know of – it’s a regular tactic to manage demand, alas.

There will be others …

So we all need to be aware: we have reached a point where perceptions amongst some professionals are that things have become so very difficult we just release people who everyone agrees need detention on public safety grounds and we do this notwithstanding the obvious legal issues, arising. To make things worse, the AMHP made it clear that a second patient in police custody also required a PICU and that bed search wasn’t going well either. My final point is this: don’t fall in to the trap of thinking this is austerity politics (small or big P, as you prefer) or any kind of recent development: these kinds of difficulty in admitting patients promptly have been going on for years and years and years but the pressure is all too often absorbed by AMHPs and the police. I submit we should operate professionally within the law in such a way as to ensure the pressure is on the professionals in commissioning and management to resolve the invidious positions that frontline staff didn’t create. I feel entitled to say that because if one more senior psychiatrist or CCG commissioning manager asks me, “Sorry, what’s s140 MHA – I’ve never even heard of that!” … I may just have to do a small scream.

Perhaps it’s with me being a policeman that I tend to take that question very badly – because, whether it was part of your professional training or not, the public have an inviolable right to expect that public organisations will comply with the legal duties and wider legal frameworks that govern them because it’s the law of the land and as we all know: ignorance is no excuse.

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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, 2017

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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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