My esteemed blogging colleague the Masked AMHP has, in his latest post, addressed the question of whether AMHPs are an emergency service, rightly pointing out that a range of situations lead to demands that AMHPs suddenly jump in to action with their A5 hardback diaries, lanyards and well-thumbed copies of Jones to detain the vulnerable. I’ve enjoyed learning from many AMHPs over the years, our Masked blogger included, but I want to disagree with certain things in his latest post, in the spirit of inter-agency debate. I recommend you read the post first and that you become a regular reader of the Masked AMHP blog as it shines light on a role that many of us still don’t fully understand, including other mental health professionals, on occasion. At least we, in the police, have some better excuses for any ignorance we may display!
The point is correctly made that AMHPs are not, in fact, an emergency service. Whenever an AMHP is called upon to act in that capacity, they can rarely do so alone and without reference to context. AMHPs may apply to detain patients under the Mental Health Act 1983, but they may not do so without a supporting recommendation from at least one doctor; and it will usually require two doctors, one of whom must be “s12 approved”. We know that certain parts of the England and Wales have shortages of s12 doctors and that AMHPs can make as many as 25 phone calls to secure one, taking hours of time that would preclude any kind of rapid response to anything, frankly! I’ve also heard many AMHPs complain about the scenario referenced at the end of the post: hospitals shouting up on day 28 of a s2 detention asking for assessment for potential detention under s3 of the Act when it’s rarely the case that such assessment was not predicted to be necessary a week earlier.
So I sympathise about the general point: AMHPs are not an emergency service, not least because they cannot simply dash out, replete with their AMHP kit and act. They are dependent upon others and in this day an age, they feel constricted by the general lack of beds which are available when MHA applications become required. I get it: and I’ve said publicly many times how much I admire the work AMHPs have to do, how I think they’re underpaid for what they do and that I would not and could not do their role for even triple the salary. It would drive me to distraction and I’d end up losing my rag with people – frankly! But here is my point: the fact they are not an emergency service does not prevent the fact that AMHPs are key to acting urgently in some emergencies and some of the arguments my esteemed colleague puts forward for his argument are the product of deliberate policy decisions that services have made over the last fifty to sixty years and not an inherent part of the Mental Health Act itself. Let me explain:
It is pointed out that one factor affecting AMHPs from acting quickly and negating their ability to be relied upon as an emergency solution is the need for an inpatient bed in a relevant hospital, to which an application can be made. In fact, the MHA says nothing at all about beds and does not countenance the AMHP delaying their application at all, once the AMHP has decided that it is necessary to make it – this is contained in s13 of the Act. Of course, after a MHA assessment, an AMHP does not have to apply for admission just because they could apply for admission: application may be delayed where it is thought trying an alternative course of action is more appropriate for that patient. However, where an alternative is not appropriate and the AMHP has decided the application is required, s13 outlines that they “shall make the application”. No mention of beds, or delays. They ‘shall’ act.
So relying upon the modern difficulty with beds, which is something entirely unmentioned in the Act itself, is nothing to do with whether or the MHA ‘intends’. (NB: the intention of legislation isn’t necessarily important unless the wording is ambiguous: where the law is not ambiguous but has been carelessly drafted to allow for interpretation beyond what was intended, it is the wording that counts – see the ruling in Cheshire West, for an example of this.). As reports have made clear, the key to ensuring beds are almost always available when required is having the proper balance of inpatient and outpatient services. Some areas, like Northumberland, Tyne and Wear MH Trust, have relatively few problems in this area. Meanwhile in other areas, there’s a white board on the bed manager’s office wall with a list of thirty names of patients who are waiting for a bed.
Section 4 of the MHA is also mentioned in the context of AMHP emergencies: this is the lesser used of the civil admission mechanisms and our long-practising colleague has relied upon s4 MHA in only 3% of his applications. I’ve heard AMHPs say that it is their local policy not to use s4 MHA because it’s not best practice but again, this is fallacious. Section 4 is on the statute book, its criteria for use are clearly defined and a situation either meets these criteria or it doesn’t. I would argue that by not using s4 when a situation involves its criteria being satisfied is bordering on outrageous if it’s purely because of a local policy preference to use s2 or s3 when the delay for a second doctor puts people at risk. That’s hardly best practice and only last week I heard of s4 MHA being relied upon by an AMHP towards the end of a s136 detention because no s12 was available.
And be under no illusions: some people have unpreventably died amidst all the waiting whilst these discussions occur in the night about whether AMHPs are an emergency service; whilst others have been safeguarded by rapid use of s4 in the real world within one of hour some officer shouting up to argue for it. I’m really not clear why a junior police officer or paramedic should care one jot that partners would prefer not to use s4 MHA. I’d prefer not to use s136 MHA, but that’s just my hard lines too, isn’t it?! – it’s part of the law and society may have a realistic expectation that I know about it and use it where the grounds are met.
There are some emergency situations to which AMHPs are key. I’ve been at them. I’ve made the phone calls having to have the argument. I have had to cite s13 MHA to try to motivate the AMHP to remember there is a legal responsibility on the local authority to ensure an AMHP ‘considers the need for an assessment’. This doesn’t mean the AMHP must actually do an MHA assessment, but the local authority is obliged to ensure an AMHP can consider it. Obviously the answer has to be “Yes – an assessment is needed” or “no – an assessment is not needed.” A reply that says, “We’re not an emergency service” is not an answer to the question of whether an assessment is needed and is not a response to the duty in s13.
Some situations will simply not be resolved without AMHPs, notwithstanding that this will also be dependent upon finding a doctor and the resolution of the NHS’s preference to operate in a way which prevents AMHPs complying with the law when they need to. There is nothing one way or the other in the Act which prevents AMHPs or their services setting themselves up in such a way as to be able to provide urgent follow-up to requests for assessments. There may be things in the real world that prevent this, such as AMHP recruitment and retention which is a real problem, but that could also be fixed without reference to the MHA by improving pay, conditions, and by resolving the non-legal matters that frustrate the hell out of AMHPs as much as they do the rest of us.
We know that section 4 applications have happened after police attendance at crisis incidents and we know that this has sometimes been possible within one hour of contacting an AMHP for support. It can and it does happen, albeit rarely – and nothing in law prevents this. As with policing and other professions: it is not just AMHPs who get to determine what AMHPs do. The law guides that, expressly or implicitly; the models of care we operate drive that because no-one would seriously argue the only thing to have changed in AMHPing since 1959 is the name we given that professional and the number of assessments undertaken. As policing has been obliged to get more involved in this territory, we’ve seen how the under-funded mental health system often attempts to make 999 services responsible for resolving things they couldn’t resolve even if they wanted to. This includes some situations where the real solution is AMHP-centred – like providing an efficient and adequate follow up to mental health emergencies in private premises.
I’ve dealt with countless cases over the years, some of them extremely high-risk, high stakes events involving extremely vulnerable people, some of them barricaded in their own bedroom with knives in circumstances where they post an obvious risk to themselves and others; as well as having given evidence in Coroner’s Court about a case where 999 crews were entirely powerless in law to safeguard a man who everyone involved believed needed urgent safeguarding the legal answer came back to the need for AMHPs, a DR and potentially a s135(1) warrant. Accepting the view that these things can take time: I also know that by me throwing resources to assist the AMHP (a fast response car and qualified driver!) we’ve gone from ‘”completely struggling” to “sorted” with AMHP on premises with doctor and warrant in less than an hour.
Despite what everyone thinks, the ambulance service are not an emergency service either (as defined) – neither are gas companies or water utilities but they obviously do deal with emergencies and they recognise they must plan and prepare for that reality in their work.
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