It’s getting really close now, isn’t it?! – just six days until the amendments to the Mental Health Act kick in and my phone is ringing red-hot with questions and queries about various scenarios that are occurring to people. Social media and emails are also going twenty-to-the-dozen. If I may say so, I’d encourage everyone to actually read the legislation, if they haven’t already – many of the answers are directly in there, to be fair and I’m not a High Court judge, so whatever opinion I give you, it’s just my opinion. I’m not entirely sure whether a tent on private land, used as a semi-permanent dwelling could be considered a room. And what if that private land belongs to someone else who doesn’t know the person is there with their tent; and what if, upon learning of it, they don’t object, because they are sympathetic to the person’s predicament? When I go camping in Cornwall with my family, I tend not to think of myself as being a “room”, but I’m not sure if there is case law on non-traditional or non-permanent dwellings and what difference it makes where they are situated.
Many of the questions that arise would, I suspect, be answerable if we just read the new law. It’s all I tend to be doing, quite honestly. For those who were not aware, the new laws can be found here –
- The ‘New’ Section 135 MHA
- The ‘New’ Section 136 MHA – inc the new sections 136A, 136B and 136C.
- The ‘New’ Section 138 MHA
This post emerges from a chance remark on social media discussing the changes. I’m in the process of re-posting the blogs I wrote earlier in the year, as reminders each day of the various changes leading up to Monday. Having re-posted yesterday about the imminent ban on using police custody as a Place of Safety for children, someone replied, “Standby for arrests for minor offences to rise.” It suddenly struck me, on Monday, we are all facing and integrity test of sorts, and we have some very serious ethical decisions to make, when professionals are under pressure.
During 2014, the Home Office and Department of Health ran a year-long consultation about how these laws should be amended. 2015 was spent drafting the Bill which was introduced to Parliament in early 2016 and granted Royal Assent in early 2017. We’ve since had almost a year to consider the finalised specifics, ahead of commencement next week. What interested me as the Bill progressed to Assent, was that it had changed very little after its introduction to the House of Commons. Various MPs and Lords brought various amendments, but one by one they were either defeated or withdrawn. So first thing to say is that we’ve had this stuff telegraphed over three years in advance – the result of the 2014 consultation came out in early December of that year. We knew, for example, that children would not be able to be taken to a police station as a Place of Safety, so why we are still in the position in some areas of not knowing where someone will go, I’m not certain. Bear in mind that this dilemma only applied to 20 children in the last set of figures, it should be beyond the wit of our National Health and Police services to work out how to keep 20 kids safe, without using a police station.
But for me, the idea that we ‘get around’ the legislation and its intent is perverse. Yesterday’s was not the first time someone called for or predicted that difficulties delivering the infrastructure necessary to ensure these changes work, would lead to decision to get around it by other lawful means. If a child can’t go to custody as a Place of Safety, it may be an option to think about whether the child is also committing a Breach of the Peace or a criminal offence like public order or assault. But at the risk of pointing out the obvious —
This isn’t about criminalising kids even more – it’s about keeping out of traumatising environments that stand every chance of making their predicament worse!!
We shouldn’t be trying to get around the difficulties caused by this new legislation: we should be understanding the intent that sits behind it and aiming to ensure that this is put in to practice in the real world. Custody and criminal justice processes are known to be pathologising, for those of use with mental health problems – it increases the likelihood that someone will harm themselves or try to end their life; it feels inherently stigmatising and criminalising, if you listen to those of us who have had to experience this whilst in distress and unwell. The point here is, Parliament don’t want kids in police stations when they’re believed to be ill – they want them in healthcare settings receiving assessment and care from people who are not police officers. The police budget in the UK, even after the cuts of recent years is still over £12bn but the NHS budget is in excess of £105bn – surely there is scope within that
So Monday is an integrity test of us all – will we look to ‘get around’ these new frameworks for our own convenience or will we rely on the obvious and unambiguous intentions of Parliament to push for outcomes for vulnerable people of all ages, to ensure they receive the right support from the right people at the right time? If you are a police officer, remember this: every time you ‘fudge’ an issue by making a criminal justice choice where a mental health choice would be initially better, you prevent the NHS from understanding the demand that exists for crisis mental health care. Every time we do this, it decreases the likelihood that we will evolve responses to demand that actually are capable of matching it; and this goes way beyond the issue of children and police stations as a Place of Safety.
Some estimates suggest that in around 80% of cases where s136 is used, the police could have legitimately made another choice – either to use criminal or common law, or not to invoke a restrictive option at all. As we’ve covered before on this BLOG, it begs the question of how police officers should make choices where they are faced with competing options. It remains my belief that we should ensure police use their substantive powers under criminal or common law, unless –
- The incident is trivial or victimless
- The victim in an incident is not really reporting a crime, but seeking help for someone in need.
- That the person’s behaviour appears more likely to be a consequence of their condition, than anything else.
- NB: remember, after 11/12, if you subsequently have reason to believe your decision is wrong, you will be able to reverse it.
So, you could face this dilemma where officers encounter an adult how is presenting in distress with significant levels of violence. Arrest for public order and remove them to custody and you ‘get around’ these new, awkward Mental Health Act (Place of Safety) Regulations 2017 which require inspector’s authorities, etc., etc.. This again, is an integrity test for all of us: if we believe that someone in such distress that these Regulations may apply to them, then we could well be dealing with someone whose life is at risk because of their condition AND / OR because of the impact of any restraint upon their person. Use criminal or common law to arrest them and you don’t ensure that NHS partners have to get involved in helping ensure that person’s welfare. Detain the person under s136 if you believe them to be ‘mentally disordered’ and the opposite is true. The kinds of situations envisaged within those Regulations are the stuff of death-in-custody inquiries for the last twenty years, so ‘getting around’ them by making other apparently justifiable choices and you put your career on the line, if not your liberty.
Custody sergeants and Review Officers will be key to checking against this tendency, because nothing obliges them to authorise detention where serious medical risks are apparent – PACE Code C obliges considerations of whether people need a transfer to hospital and someone may be released without further action, under investigation or on bail, as appropriate, if that assists in prioritising assessment of potentially unmet health needs.
Police officers often work alone or in pairs – although supervised in theory by the sergeants, officers are often at incidents on their own, making low-visibility choices. Monday sees the opportunity to use Parliament’s intentions to ensure the safety, integrity and dignity of some of the most vulnerable people in our society and adherance to these new frameworks will ensure officers can insist on support from others to keep people safe. Getting around the issues that you actually think you are handling has several kinds of effects that are all important –
- It will further stigmatise and criminalise those of us who live with mental health conditions of all kinds;
- It will fail to ensure local NHS services are obliged to help us in our quest to keep people safe;
- It will expose you if things go awry, which they’re more likely to do without clinical support, to the kinds scrutiny you’ve never imagined in your wildest nightmares – you only need to have been through a contact death investigation to see this.
So the message is nothing more complicated than this: do the right thing to help keep people safe.
If you really believe you’re dealing with a violent man on drugs, feel free to make public order or other arrest decisions that you think are appropriate – we shouldn’t be using the Mental Health Act as a place to dump awkward people we do not believe to be ill. But where we are responding to a mental health crisis call, the new frameworks are there to ensure we raise our game. All the decisions we take from Monday will be tests of our integrity and tests of our ability to ensure that our local partnership processes evolve to meet this challenge. We can assist in hastening that, starting on Monday.
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