We learned this week of Professor Sir Simon Wessely’s appointment by the Prime Minister to review the Mental Health Act 1983 and since then, he has spoken to my boss, Chief Constable Mark Collins, to ensure the police contribute to the debate about the realities of our work, the problems and issues we face from a legal point of view. The boss asked me to start thinking of points to raise for discussion – not because we have any fixed view or are being asked to write any kind of Christmas list, but because there are probably certain debates we would hope Sir Simon’s review might address that affect policing and the broader emergency and mental health systems of which we form a small but important part.
So these are not final thoughts, proposals or demands! – it’s just a list of things I’ve recommended to Mr Collins that we ask Sir Simon’s team to consider finalising, one way or the other, amidst the much broader work that such a review must get in to. Police stuff is a growing and important, but nonetheless small part of the overall working of our mental health laws in the United Kingdom.
Here goes! –
- A total ban on the use of police custody as a place of safety for ss135/6 powers – this is called for by the Angiolini Review (2017) in to deaths in police custody and by the time of any new MHA, the country should be routinely seeing only a few dozen cases per year. This could be the final step to eliminate the practice of goaling the vulnerable.
- There needs to be a settlement – entirely absent in 2014 review of police powers which led to the Policing and Crime Act 2017 amendments of the MHA – on the powers, obligations where mental health crisis incidents are happening in private premises: do we empower the police or obligate others to support? Our mental health care system is very different to how it looked in 1959, with much more community care and a far greater role for the police: yet we’re still using 1950s legislation to keep people safe in crisis.
- This becomes relevant after the Michael Thompson inquest (Lewisham, 2016; heard at Southwark Crown Court, 2017) – 999 services powerless, GPs and AMHPs too slow to react, deceased mental health patient as a result of fire.
- We could amend the s135-type power: obligate AMHPs/DRs to support 999 crews (and resource them accordingly); create a MH nurse’s power similar to s5(4); allow a police power for 6hrs pending an AMHP decision about a s135(1) warrant … there are a number of options which could be explored and this could include an inspector’s authority to act if we needed safeguards on anything the police could do.
- The UK and New Zealand are the only countries NPCC are aware of where their police officers cannot ensure the safety of vulnerable people in private premises. Street Triage schemes show that most police 999 calls to MH matters are in private premises and our nearest neighbours, allow police one legal power, applicable everywhere.
- Street triage often sees situations where officers have, in reality, held people against their will pending the advice or attendance of a ST nurse. Examples include situations lasting over an hour. Should we allow a registered mental health or LD nurse to discharge s136 if it is agreed an alternative not known to the officers when they had to take their decision, is available?
- Abolish the distinction between ‘AWOL’ and ‘absconded’ patients – create one category of being ‘absent’ from the place someone is legally required to go or to be. This would mean merging the s18 and 138 powers in to one power of re-detention for those who are liable to the operation of the Act when they are ‘absent’.
- Simply the timescales within which officers can act after someone goes AWOL or absconding: there are well over two dozen different timescales which could apply to various situations of AWOL / absconded: this could be simplified in to far fewer timescales.
- For example, Part II patients of any description could be retaken for up to 7days or 28 days, Part III patients retaken without limit of time. If s135/136 police powers under the MHA were adequate, as outlined above, then any absent patient encountered after the 7 or 28 days limit could be dealt with under s135/136 equivalent powers.
- Amend Part III of the MHA to allow a Magistrates Court under ss35/36 to remand directly to a hospital on a defendant’s first appearance, based on two doctors’ recommendations: follow various serious crime inquiries where patients are seriously ill but require admission to the secure system. << This would prevent unnecessary remands to prison in order to then seek a transfer to the secure hospital system.
- Consider the creation of a s136 type holding power in A&E which could be used by ED staff (or their security representatives) until such time as the police arrived to any emergency. << There have been Coroner’s inquests about ED staff ‘allowing’ patients who are suicidal to leave and relying on police to find them. Without this, the law is very opaque about ED powers to keep people safe, even briefly.
- In various Australian states, s136 type powers are also available to paramedics, registered mental health nurses and all doctors: do we need to consider that here? There have been instances of Doctors seeking police to use s136 and officers refusing. Sometimes this was correct refusal; but not always. << What are we trying to achieve?
- Take s35(7), 36(8) and 38(10) absconders, which require the patient to be returned not to hospital, but the criminal court which imposed the order; and allow patients to be returned to hospital for care, with presentation to a court ASAP afterwards: would prevent a very ill, secure care patient being held in police custody overnight or over a weekend, pending appearance. It was also remove confusion by police officers of where to take people.
- Ensure that processes for recall of conditionally restricted patients under s42 MHA includes clarity on the re-call warrants about whether the s42 warrant is, of itself, a power of entry to-retake the patient, or whether an additional s135(2) warrants is required to execute the s42 warrant of recall? Why not just attach a power of entry as part of the MoJ recall process?!
- Consider allowing a power of entry without warrant in order to re-detain someone who is absent, even if that authority required an inspector’s authorisation to be used. The matters at stake in recovering a patient safely are often far graver than in other common policing situations where officers can enter of their own volition without an inspector’s authority – like arresting a shoplifter.
- Clarify in the Act, those interventions and procedures which allow the use of reasonable force – police powers, nursing holding powers, AMHP powers, delegated powers.
- Specific, not implied, powers, in the Act around patient autonomy when detained on wards: powers to search, powers to seize and retain items (whether it would be lawful or not lawful to possess them otherwise).
- Clarify the position where applications for admission are required but AMHPs are delaying the application for the want of an inpatient bed. Do we need to create a legal state of ‘limbo’ so that people whose bed is not easily identifiable can be held in a Place of Safety until it is available? This occurs thousands of times a year and is likely to occur more frequently once amendments to the MHA take effect.
- Clarify cross-borders powers of detention within the UK: it is beyond complicated and needs simplifying!
- Do we need a separate Mental Health Act and Mental Capacity Act? – the MCA 2005 has been subject to considerable criticism and this could be an opportunity to harmonise things and clarify 999 powers of intervention for those who lack capacity.
These were first instincts, I already see debates, issues and problems with some of it, but I was asked to list some topics as mere ideas and so I threw in some that I’m against or undecided about! Please don’t think this is me or ‘the police’ lobbying for anything: they are debating points, only!
But let me know your thoughts, in comments below rather than on Twitter or Facebook.
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, 2019
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 – http://www.legislation.gov.uk