We don’t have enough inpatient mental health beds in this country – but I might be very wrong about this, though! It is my opinion, that when we take account of the capacity and capability of the community, crisis and social care which is currently available, we don’t have enough beds. Solve that by increasing the community and crisis care by all means, so that there are alternative services for people who don’t inherently need admission, but who need more or different support as an alternative to admission; increase social care by all means so that people currently in hospital who are medically fit for discharge from hospital can actually be discharged in circumstances where their housing, substance use, education or employment needs have adequate support to help them lead independent lives in the community.
But my underlying point is: the balance is not right and it is perhaps we, in the police service, who see this most obviously when patients need beds after a statutory Mental Health Act assessment. Although AMHPs are often the ones left wrestling the bed management system (despite it not being the AMHP’s job to find the bed), it is the police who are all too often expected to go above and beyond to keep people safe whilst all that plays out, even where the law has run out of options by which we may do so. There will be an inquest later this year, where this will all be played out in light of a death and so far, the debate in that area seems to ignore the reality of our laws.
Three problems –
- MHA assessments in the community, no bed available – police asked to attend someone’s house or A&E to ‘wait’ with them until such time as a bed is found.
- MHA assessments in a ‘Place of Safety’ after use of section 135 or 136 – police expected to remain through the entire assessment period and until a bed is found.
- MHA assessments in police custody (after an arrest) – officers expected to keep the person detained in police custody until the bed is found.
The problem with all of the above, is that laws apply to this situation to ensure that in some versions of each, it would be unlawful for the police to do this. Unlawful in the sense that the Mental Health Act itself is arguably breached (I’m familiar with the counter arguments, hence the word ‘arguably’ – don’t write in); and in the sense of whether or not the MHA is breached, the way it was adhered to still failed to protect even more fundamental rights.
SECTION 13 MENTAL HEALTH ACT
A number of times over the last fifteen years, the police service has sought legal advice around MHA application processes and a number of solicitors and barristers have come back with opinions which fly in the face of established practice in most areas I’ve known. Specifically, when I first read s13 MHA – which covers an AMHPs duty to make applications – I remember reading the criteria that must apply before the AMHP “shall make the application” and noticing it said nothing at all about ‘beds’. It talks about hospitals. Now, of course: a hospital with no available bed in it is quite likely to say, “No, we can’t admit that patient” because there is no available space. Such considerations as safety, staff patient ratios to ensure effective care and supervision will all play in to this. We know that mental health wards are often difficult places and
But this doesn’t alter the fact that the Act says the AMHP “shall make” the application once the criteria are met. They are –
- That the AMHP believes that an application ought to be made
- Having regard to any wishes expressed by relatives or the relevant circumstances that it is necessary and proper for them to make an application
- (Assuming of course, that they have the necessary medical recommendation(s) for the section being considered);
Remember as well: whatever argument is put up about custom and practice of not applying until beds are found, or the interpretation of s13, etc.; that s6(1) of the Human Rights Act 1998 applies to these matters and no public authority (a HRA term which applies to both mental health trusts and local authorities) may act in a way which fails to uphold someone’s fundamental rights under the European Convention. So, delays in making applications which compromise someone’s right to life (Article 2), their right not to suffer inhumane and degrading treatment (Article 3) or their right to liberty (Article 5) are just some of the issues which could be engaged by delays.
So this bed stuff is not just about how we balance community and institutional care – it’s about the fundamental rights of our most vulnerable friends and neighbours.
We’ve always known these delays have gone on – in 2005, Greater Manchester Police had to threaten judicial review to end a three-day detention and it got as far as them having a Barrister outside the High Court, ready to go. In 2007, I remember having to advise in a murder investigation where such problems were emerging, helping the SIO to navigate through the MHA process and it was only the threat of legal action which led to a bed being found. In 2015, Devon and Cornwall’s Assistant (now Deputy) Chief Constable, Paul Netherton, did a public tweet and we know Twitter has seen similar protests more recently. But what we were lacking for ages was a sense of scale: we know it happens, but how often does it happen?!
In 2016, the National Police Chief’s Council did some work on this and ended up suggesting, based on some dip-sampling that this was a 2,000 times a year problem. Eventually, that was accepted as probably being near the mark, but more recent, more in-depth work has revealed that it probably wasn’t even the half of it. We currently estimate it to be 4,000 to 4,500 times a year that the police are connected to people in scenario 3 (above) only – delays for people under arrest in custody. If you then looked at detention under s136, we know that some forces report that all of their s136 assessments are concluded within 24hrs, but the finding of a bed is not always within that timescale, as it should be. One force, who’ve looked more closely at all of this, argue that 30% of their section 136 detentions do not conclude within 24hrs, usually because of delays waiting for beds.
Even if that number were double the national average, if 15% of all s136 cases were unresolved 24hrs after they began, that would be another 4,500 to add to the pile – 9,000 so far in total. The police service have no way of knowing how many delays there are in community assessments because we’re usually not involved in them, but I do know of some such assessments where the outcome whilst waiting for a bed was that the service user died before the bed could be found. In other cases, the patient has run from their home, been reported missing and then found and either detained under s136 or arrested.
WHERE DOES THIS LEAVE US?
We know that when AMHPs want to make applications under the MHA, they are prevented from doing so in a timely way many, many thousands of times a year. So much so, that the fundamental human rights of patients is compromised, sometimes in ways where their life has ended when we have to wonder if it would, had there been a timely application. We also know that where AMHPs and others get nervous about the risks associated with those delays, they often look to the police to solve that problem, even though the police may not have been involved at all up to that point and where they may be legally powerless to do so, even if that were already involved.
The law sets out frameworks to be complied with: it seems astonishing to me that we don’t take the time and trouble to measure how often we do and then review the commissioning and provision of services in the light of those findings. But one major problem is that the breach of s13 which is evidenced by the non-making of an application which the AMHP thinks is required, is not always regarded as the legal breach that it is – whether viewed as a breach of the MHA or a breach of the human rights implications of how the MHA operates. Pick you breach, by all means – but let’s at least agree there is one!
This again comes back to things like s140 MHA: the provision which provides a duty on Clinical Commissioning Groups in England and Local Health Boards in Wales to specify hospitals in their area which can receive patients in circumstances of special urgency. There is a bit of work now going on about this widely ignored provision that some CCGs admit they don’t know about, at all – despite it being mentioned in the Code of Practice to the Act and, perhaps crucially, in the Act itself. But regardless of your profession, do you know what the local s140 arrangements are to ensure that patients can be admitted in a timely way, without their fundamental rights being compromised? If not, why not?! … you might want to ask.
Either way – we don’t have enough of something.
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