This one’s longer than normal – sorry! Thoughts just kept coming, so it’s probably best you put the kettle on first and ensure you have more than a few minutes! And treat yourself to a biscuit – non-chocolate hob nobs are best.
There are a lot of conversations occurring nationally at the moment, at operational levels of policing, about what I might call ‘minimum standards’ in partnership working. Everyone knows that both policing and health services are stretched, mental health services in particular being more negatively affected than non-mental health services, as ever. But I‘m increasingly hearing from duty inspectors and sergeants that they are sometimes having to decide which 999 calls for urgent help they don’t answer, because their officers are sitting calmly in healthcare settings with people detained under s136 MHA for periods of time that seem only to be lengthening: lengthening in how long it takes to secure an assessment; lengthening in how long any admission takes to organise, because of difficult in finding beds, for example. Having been that duty inspector, I know that I’m not the only one who has occasionally decided that I’m obliged to take a big risk by leaving someone with NHS staff who are not willing to take responsibility for that person, because those officers are more required elsewhere and that if I have to explain to the Chief why I had to stuff something up, I chose that rather than the armed robbery, the shooting or the child rape incident. << That sentence alludes to a real decision in my own career from 2013. Which of those things would you rather not resource at all because your officers are in ED guarding a man who is asleep with no sign in our future of an assessment?
Many times over the last decade we have seen police forces sitting down with their partners because of a variety of initiatives and reforms, to plot how the future will operate because of a new report, changes in the law, a new Code of Practice or whatever. Working backwards: we had legal change last December (2017), we had the Angiolini Report just before that; we had new Codes of Practice (Wales, 2016; England 2015) the NHS England Five-Year Forward View (2015) and a whole range of things coming out from the Crisis Care Concordat (2014). We might as well keep going: in 2013, we had new ‘commissioning standards‘ from the Royal College of Psychiatrists’ group on s136 MHA which came only two years after the last revision of their Standards on the Use of Section 136 (2011) and that was only the year or so after the Bradley Review injected some focus in to policing and mental health in the review of all mental health / criminal justice stuff. So that (non-exhaustive) list takes us back only to the start of the decade – real historians of this agenda will know we could go back further, to the first decade and even back to the last century.
Here’s the thing: whilst we can point to some areas where some progress has been made; anyone who wants to argue that it’s all been progress is not paying enough attention to the detail of this OR they are not interested in it. It’s really easy to make a ‘political’ (small p) argument about the vast progress we’ve seen: let me explain what I mean by that.
If a member of the public wanted to contact a senior official in healthcare or policing; for that matter, if they wanted to contact their MP, a Government Ministers or even the Prime Minister and argue that things were getting worse or not as they should be, it would be child’s play to come out with a superficially convincing response that has the effect of dismissing the concerns and deflecting them away. “What do you mean things are getting worse – we’ve changed the law to reduce the use of police cells as a Place of Safety, there has been £15m of funding for extra Place of Safety services and more funding again for initiatives like ‘street triage’ and ‘liaison and diversion’ in addition to which the Crisis Care Concordat has proved vital in bringing organisations together to improve crisis care pathways to ensure people get the right treatment at the right time.”
This is hard to argue with: firstly, because it’s all true and has had some positive effects; secondly, because to argue that those positive effects need to be seen against any neutral or negative impacts. (Anyone who has ever tried to change large systems and cultures will know that nothing has unintended consequences that the impact of some very necessary and welcome change will be negative. It’s how you weigh the relative values of those things which help determine the overall desirability of the thing.). But thirdly, you actually have to know your stuff to be able to analyse this: it’s no good shouting at me (as has actually happened, more than once) that something is good when your own analysis shows you have failed to take account of very important things in reaching your conclusion; AND when your exposition of the benefits of your thing show that you lack the legal knowledge to realise that the thing you’re shouting about breaks the law!
It is my own view that we have made lots of progress in many areas since 2010 – there is no doubt in my mind at all. I’m always going to be particular pleased and proud that the use of police cells as a Place of Safety under the MEntal Health Act has reduced from 11,500 in 2008 to just 1,015 in the last set of figures. The next set of figures, it has been hinted, will see that reduce again by more than 50%. I have heard from more than one Political source (capital P!) that the work West Midlands Police did in 2005-2010 with partners after the death of Michael Powell is what convinced many that there could be a real and permanent reduction in the number of people we jail for their trauma and distress. But because this is my favourite example, I want to use it to demonstrate the claim I made in the previous paragraph that you also need to look at neutral and negative impacts of this ‘progress’.
- It is more resource-intensive for the police to remove someone to a healthcare setting than to jail, unless that Place of Safety service is operating to the very high standards suggested in the Royal College of Psychiatrists’ (2011) Standards on Section 136.
- Incidentally, ‘street triage’ is often more resource intensive than not having street triage. << Not (just) my view: that of a UK Chief Constable whose force has a very well regarded scheme which blazed a trail.
When we started with the Place of Safety work in 2005-2010, West Midlands Police had it is a red-line that we would not, could not and should not remain in any health-based Place of Safety that was set up with every single person who was removed there. Plenty of reasons for that: a) it’s simply not necessary for vulnerable people to have the police hovering over them in all cases – to suggest it is to reinforce the assumption mental health services often campaign about that patients (most people detained under s136 are known MH patients) are violent; b) it’s not the nationally agreed standard about what should happen – the 2011 standards had a 2007 predecessor which said the same thing on this point; c) the effect of a policy where officers remain with all people detained is that it would cost West Midlands Police double the resource (or more) to staff the MH unit in this way – at a point where we knew massive reductions in officer numbers was coming, that simply wasn’t an option and the Chief Constable would have rightly asked why I had just cost him that resource, especially given that the national agreement is that it wouldn’t be done this way.
I won’t pretend it was easy to convince partners that this was a necessary red-line: I won’t even pretend that in principle, some of them agreed and then in practice we had early bumps where operational staff would disagree with the very clear process we had set up to determine whether the police remain and an escalation process for disagreements. But I will say, that after the whole things settled down, it worked well enough to be tolerable for all, with occasional incidents reminding us all of the need to keep an eye on things. Overall, after the first period of operating, we actually found that the force we saving resources, compared to the previous use of police custody – around 50 full-time-equivalent constables per year.
We have more change-inspiring initiatives coming down the line: in less than two-months, Professor Sir Simon Wessely will have published his final report reviewing the Mental Health Act 1983. That will set off a process in Government of looking at his recommendations and decide whether or not, and when, to bring forward a Bill for consideration in Parliament. Being realistic and knowing how long it took for the Richardson Review in to the Act to lead to the Mental Health Act 2007, it will be a number of years yet before we see further legislative change. However, the overall point I’m making in this post is that we have LOTS of work to do before then in many areas. And the example I’ve chosen about resources and Places of Safety was a deliberate one for another reason, in addition to being my favourite.
The Wessely Review has asked the Policing Topic Group to look at and advise on whether the use of police custody as a Place of Safety for adults may be entirely banned, in the Act. The topic group advised that it could and should be done. Ultimately, of course, it is up to Professor Wessely to decide whether or not to make that recommendation in his final report; and up to the Government to decide whether to accept that and put it in to any Bill they produce in the future. But we also know that this will represent a different kind of challenge in different parts of England and Wales because of where things stand today – in October 2018.
Some areas use of police custody is negligible: West Midlands and Merseyside were down to zero-use of custody in the last figures; Hertfordshire were also there recently but along with Leicestershire, Northumbria and so on, had only a couple of people. I’ll bet, if they’re honest with themselves when reviewing those cases, that there probably wasn’t a particularly problematic reason why those individuals couldn’t have been managed in a non-police setting and for all those areas, things will be relatively easy in terms of reducing the use of custody to zero, if the law should change. However, will the officers from those forces have to remain in the Place of Safety every time, with every detained person, regardless of risk, in violation of the nationally agreed standards from 2011? Currently, in some of those areas, the answer is yes.
NEGATIVE AND NEUTRAL
If you have surveyed social media in recent weeks, you will see that there are problems in this sphere: this is what I mean with ‘negative’ and ‘neutral’. It sounds great that we’re reducing the use of custody, but what we do know, for definite, is that this does NOT mean people are easily accessing relevant MH unit Places of Safety where a consideration can be given to handover. Some areas of the country do not have sufficient Place of Safety provision for the numbers being detained and when officers find that they are unable to access such places, they default now to Emergency Departments because of the severe legal restrictions on being able to use custody. People can have their views on whether ED is, in fact, better than custody but most police and ED staff would probably agree with each other that neither is great unless the person is a) accused of a crime sufficiently serious to mean that has to be the priority; OR b) medically unwell or physically injured in such a way that ED has to be the priority – neither environment is designed to be the ‘right’ kind of place for a vulnerable person needing a quiet space to stay safe until they can be assessed.
But Twitter tells us(!), that in Lancashire a few months ago, there were seven – yes, seven! – detained people in one ED at the same time, purely because officers couldn’t access a Place of Safety in a mental health unit. Most of the mental health trust’s 136 suites were being used as temporary ‘beds’ for patients requiring inpatient admission under the Mental Health Act, thus denying access for anyone detained by the police under section 136. Of course, seven detained people means fourteen police officers in ED ensuring that people remain detained and this problem was compounded further because some of those 136 detentions remained detained way beyond the permissible 24hrs because patients needed inpatient beds that weren’t available – which we knew, because that’s the problem meaning they couldn’t access the Place of Safety in the first place! This week on Twitter, a response inspector was also tweeting about 5 people being detained in ED with inordinate delays for assessments and difficulty securing beds with many police resources ‘off the road’
So, even with the 2017 amendments to the police provisions of the MHA we know there are problems delivering upon them. Further amendment in the future will only compound this if, before then, we do not get to grips with the problems we already face. Later this month, the Government will publish the latest s136 figures which will be capable of a positive spin, because it seems highly likely the numbers going to custody will have more than halved from last year, continuing a downward trend from 2008; and we also know that most of the use of custody in the forthcoming figures will relate to that part of the reporting period before the law changed to restrict custody. One police force told me, they’d used custody more than 100 times up to December 10th 2017, but from 11th December they hadn’t used it once. So I’ve every confidence that when we sit here in October 2019 looking at the first set of figures which cover a whole year of activity under the laws amended in 2017, we will see the use of police custody down to double-figures nationally. When I remember that 10yrs ago West Midlands Police accounted for over 1,000 uses of police custody, double-figures nationally would be quite an achievement.
However! … has it come at various kinds of cost that are not sustainable? Have we got large queues of police vehicles in EDs purely because someone thought to need mental health assessment has been removed there, purely for a want of other options? Are police forces effectively staffing s136 suites because CCGs have commissioned a room in which to wait, but no staff to receive, assess and supervise the patient so the police can be release in appropriate cases, as per national standards. If these standards mean nothing, perhaps they should be ripped up? – because it creates an expectation on the part of the police and I still regularly hear stories that CCG MH commissioners don’t know of these standards and dismiss the need to consider them because the police are still ‘over-using’ section 136. It leads to the argument ‘why should we have to resource a unit to look after people who should never be detained in the first place?’. Those arguments have been addressed elsewhere and remain, largely, fallacious.
I’m yet to have such discussions with NHS staff, CCG commissioners or police officers for that matter, where it isn’t obvious very quickly that their definition of ‘over-use’ is predicated on a less-than-full consideration of what ‘appropriate’ use is. Of course, you can point to examples of where s136 was used when we’d probably all agree it shouldn’t have been. But I can also guarantee that if I walked in to custody or analysed street triage encounters, I could find you concrete examples of incidents that led to arrest or led to no detention at all, where s136 should have been used and wasn’t. As Baroness Hale (President of the Supreme Court) said, in her textbook on mental health law (2017), section 136 is both over-used and under-used because officers will almost always have another power and my own view is that some police officers and mental health professionals push for the criminalisation of people who should be detained under s136 because in so many important respects it’s simply easier and less resource intensive to arrest people.
The police service could unilaterally end the use of police custody as Place of Safety today, if we wished. Just lock people up for other legal reasons and then custody is not being used as a Place of Safety under the Act. But is that really what we want?! If it’s not, we need to re-agree that our previous commitments to work together need to see police forces ensuring that they use s136 ‘appropriately’ (see College of Policing guidance, for what that actually means!) and then health services need to ensure sufficient capacity, including staffing, to ensure the experience of the patient looks a bit like what we all thought it should, when we last discussed it in 2011. And we need to do those things in the next year or two, to ensure that if custody is fully banned, we haven’t just ensured that the police service are spending double or triple the resource per detention, compared to those times we’d hope to forget where the United Kingdom used to jail its most vulnerable subjects at their most desperate time.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions 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