It was being asked again last night, in the AMHP social media world as to whether Britain had run out of inpatient psychiatric beds. Obviously a difficult night to go out AMHPing, at least in some parts of the country. Over the last two weeks, I think I’ve been asked about four different scenarios where a massive bed hunt was going nowhere fast, three of them related to the detention of children. In some of those cases, detention by the police under s136 led to a fairly quick assessment of the person detained and for a decision to admit to be easily reached: only for it to then be made known that the relevant kind of bed for that patient is at least six days away. There have been other examples prior to this recent flurry, of course: it does tend to suggest we’ve got proper problems.
Where things get really difficult, there has been an increasing practice for mental health services to use the place of safety room itself as an improvised ‘bed’. And before I go any further at all, I want to point out this is not an example of me choosing to put things in the public domain that aren’t all ready there – just see social media for details! So for example, a person is detained by the police under s136 and taken to the place of safety for assessment which concludes that detention under the Act is required. However, because of there being no bed, the application is made to the hospital where the MHA Place of Safety is and the patient moves nowhere, but metamorphoses from a s136 detainee, to a s2 MHA patient without moving an inch.
Other versions of this practice have occurred where a person is originally arrested for an offence and taken to police custody, but then ‘diverted’ from justice under the MHA to a Place of Safety facility, not under s136, but under s2 itself as a detained patient. There the patient remains under quite unique circumstances until a ‘bed’ becomes available at whatever point and they are transferred (s19 MHA). In one example last year, a young person admitted under s2 to a PoS remained there for several days until a proper inpatient bed became available and, of course, during that time all s136 detentions of subsequently vulnerable people had to go elsewhere.
One thing to say about this upfront: at least it’s all lawful! Pressure to admit patients, especially from police custody, often arises because timescales to secure a bed exceed those allow by law for doing so. If someone is detained under s136 MHA, the AMHP and DRs have just 24hrs to make the necessary arrangements for that person’s care, including admission, if required. If no application has been made for someone’s admission to hospital under the Mental Health Act, they are free to go after the 24hrs expires. This is also true if someone was arrested initially and assessed under the MHA in custody.
Finding a bed in a timely way, is vital in order to prevent the situation becoming a human rights violation. Holding someone without a legal authority is an Article 5 violation (the right to liberty); releasing a suicidal person when you are under a legal obligation to detain them could well amount to an Article 2 violation (the right to life). There are other violations that may apply, for example where protracted detention before admission could amount to an Article 3 violation (inhumane and degrading treatment). This was actually a finding in the MS v UK ruling in the European Court in 2012.
In order to avoid such a mess, forcing through an admission by using a Place of Safety on an improvised basis is an option that some areas are resorting to, sometimes with police support. As I said: at least it’s a lawful way to progress! … it’s progress of a kind. But it’s not always seen as a choice a between a lawful or an unlawful option: these kinds of improvised solutions to bed problems are, obviously, unsatisfactory. No-one would want a patient detained in a place of safety where better options existed; but police forces are right to consider asking whether these solutions could be considered. Why not improvise a lawful solution that protects the patient’s fundamental rights and get closer to what we’d all want for them that ongoing detention in custody?
So the problems emerge if it is thought unconscionable to release someone where they are known, for example, to be actively suicidal or a risk to others and where no-one is able or prepared to improvise. Requests have been made in some cases for the police should either keep someone in custody (if they were originally arrested for an offence at we ran out of time to ‘divert’ under the MHA) or that the police should help to keep someone at the Place of Safety even though the 24hrs to make arrangements has run out. Where there are no other options at all, then it may come to that invidious decision – do we unlawfully detain to keep someone safe or do we release them and follow them up later when a bed is found?
This should be an absolute last resort decision, borne of some desperation.
It’s not really last resort territory if we’re looking at things through the ‘ideal’ versus ‘non-ideal’ lens. Last resort is whether we choose the ‘lawful’ or the ‘unlawful’ option when we’ve only got these two left to choose from. Remember, all public authorities have a positive duty (s6 of the Human Rights Act 1998) to ensure the European Convention Rights of those to whom they owe a duty. The ‘unlawful’ choice to breach someone’s fundamental human rights should not be the decision, unless it is unavoidably forced upon us. Anything else is better and this shouldn’t really need to be said, should it?!
My final point here is: every time this happens, it creates a knock-on difficulty and just shifts the pinch-point around the overall system. It will continue to do so unless we alleviate the need to improvise in this way. And ultimately, it all comes back to factors way outside the control of the police but whilst leaving them responsible for decisions that were taken in strategic healthcare meetings months prior to the pressure. What is perhaps most interesting to me is the apparent assumption that the police always can and always will to expend resources remaining with patients for days on end whilst beds are found. Not only can the legal issues outlined above be compelling, managing overall demand at a given time may mean the ongoing detention of someone who should, by then and by law, have been safely detained in NHS care is not the biggest priority they face.
It’s again time to decide what the police are for and whether we value fundamental human rights in practice as well as in theory.
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