Ignorantia Juris non Excusat

As the years go on, I do find that the posts I write are becoming replicas of other posts I’ve previously written.  Indeed, sometimes I write and then think, “I’ve covered this before” and then just stop and delete the draft, content that it’s already been said.  However, this time I’m going to write a blog covering things I’ve said countless times before, on here, on Twitter and in a variety of meetings, training and CPD events, because it just isn’t going away and we know these issues end up being connected to inquiries, investigations and even inquests, because of the simple reality that too many frontline staff in all our organisations often don’t know the law – and ignorance is no excuse.

On one level, this problem is quite excusable, of itself – we know that police officers, for example, may often only receive a day’s mental health training despite the College of Policing suggesting it should be two days – this problem was highlighted in the 2018 Picking Up the Pieces report from HMICFRS.  We also know that registered mental health nurses (RMNs) may receive only an hour’s mental health law training during their undergraduate degrees, albeit some universities give more.  The biggest irony therefore about the oft-repeated narrative about street triage initiatives is that the police are working alongside not just ‘mental health nurses’ but ‘expert mental health nurses’ (if you know the difference, let me know) and the nurses themselves may have less legal training than the police officers they are meant to be advising expertly.  Expert mental health nurses, no doubt about that at all – legal experts?  No – no assumption should be made about that at all.

However, many mental health nurses are real legal eagles: often because they have done what I and others have done, which is go out of their way to learn the law.  Every day’s a skool-day and we continue to learn, but the point is they have actually picked up the Mental Health and Mental Capacity Acts and read them (I can hear a particular AMHP cheering this point from afar), then they read the Codes of Practice to each (the cheers just got louder).  Some even read some of the case law on this stuff (and our AMHP has just passed out).  My point of frustration is not confined to nurses: in the David Stacey inquest in Leicester in December 2018, the ‘expert’ psychiatrist (again, I’m not sure what the difference is between an ‘expert’ psychiatrist and a psychiatrist) offered opinion on legal matters despite their expert report not containing evidence of legal qualification.  It therefore wasn’t entirely surprising to find the doctor got the law wrong in their report.  The error made wasn’t uncommon but it meant the argument being put forward was exactly the opposite of the one demanded by the law – it follows that if doing something would be unlawful, the police had absolutely no legal duty whatsoever to do as suggested, in fact they had a legal duty to resist.

It is simply not acceptable to argue that by declining to break the law the police are failing to work in partnership – that needs saying precisely because it does get argued!  Asking other organisations to break the law is failing to work in partnership, though – it betrays various unhealthy as well as unlawful attitudes about failing to respect fundamental rights.

LEGAL LITERACY

Many might legitimately wonder who the hell I am to make these points?! – I have absolutely no training oand no qualifications on this matter, at all – I’m certainly not considered an ‘expert’ by the courts on legal issues.  I’m just a policeman, I have two music degrees and I can read – so I used my generic education to read the Mental Health and Mental Capacity Acts and I continue to do so.  I’ve often looked at doing some qualification on this stuff, to lend a touch of credibility to my pontifications and to my professional input, but I often wonder whether it would greatly matter, given the expense involved?  Maybe some day … meanwhile, I do know this:  if I can take the time and trouble to read what I’ve read, there’s no particular reason why others can’t read the available summaries that now exist, not just on this BLOG, which is, ultimately, my own informal ramblings on these matters.  There is stuff out there to help.

You might also legitimately wonder what the hell has prompted this frustrated-sounding post?  It is yet another request to help untangle an incident after the fact, which seemed to involve mental health professionals, paramedics and police officers standing off against each other in private premises arguing because someone didn’t know the law.  In fairness, I’ve got stories recently where it was the police who were plainly wrong so let’s not be complacent, but I will say the stories coming in are more often about other services, at least recently.  In fact, it’s not just one request I’ve had –  I’ve noticed a string of these things since the start of December, all discussing the same thing, but they hail from all over the country and involve, yet again, mental health incidents in private premises.  And ultimately, what I could really do without is seeing mental health professionals getting really hacked off that police officers will not break the law for their convenience OR as a result of their own ignorance.

Incidentally: some years ago, the near-constant refrain was you wanted to us to get better at MH as a service:  well, we’ve done a load of work since then and whilst there’s still a distance to go, we now are better than before.  One thing we’ve learned along the way, is that we were fudging things, breaking laws we didn’t realise we were breaking and being drawn in to vacuums we didn’t know how to avoid.  One major consequence of our learning, albeit not the charge first levelled at us, is that we now recognise how very badly over-relied upon we are to coerce people for convenience or because of ignorance.  Remember the maxim: ignorantia juris non excusat.

HERE I GO AGAIN

So, to the strains of the legendary Whitesnake anthem

  • Police officers cannot use s136 MHA in private dwellings.
  • The Mental Capacity Act cannot be replied upon to remove someone from their own home purely for the purposes of a mental health assessment, as if they had been detained under s135/136 MHA.
  • The MCA can only be relied upon where there are more urgent medical matters that require attention without delay – this will most usually be for treatment in an Emergency Department for things like an overdose, etc..
  • The Mental Health Act provides a complete framework for intervening in the private home of a person thought to be vulnerable due to their mental health – AMHPs may convene with just one doctor and use s4 MHA; they may apply to a Magistrate for a warrant under s135(1).
  • Local Authorities have a responsibility to ensure access to AMHPs, in part for these very purposes.
  • The NHS has a responsibility to ensure the availability of beds, to which AMHPs may make applications in urgent circumstances.
  • Police officers only have unilateral powers in police premises where someone has attempted or committed a criminal offence; OR where they anticipate a breach of the peace.

Whether or not you know this, whether or not you like this, whether or not you feel your organisation may struggle to comply with this is absolutely irrelevant to me.  No lack of training on someone’s part, no amount of professional frustration or inconvenience caused, no amount of difficulty will change the fact that this is the law of England and Wales.  The public and statutory partners are as entitled to expect compliance with statutory duties, as you are entitled to expect the police will do likewise.  Yes, I’m aware that we don’t always manage this either! – but there are other posts on here point out that as well and I’m not here to discuss that again, although no doubt I will also do likewise in the future.  This post is about mental health assessments in private premises.

So where officers have been called or sent to someone’s home and discover they are in crisis where it would be unconscionable to leave someone, they are not only entitled, they are actually obliged to consider some pathway to safety and assessment.  What that looks like may well vary by place and time, depending on what else is available.  But here’s a legal fact that no-one shouts loudly:  section 13 of the Mental Health Act 1983 clearly states –

“If a local social services authority have reason to think that an application for admission to hospital or a guardianship application may need to be made in respect of a patient within their area, they shall make arrangements for an approved mental health professional to consider the patient’s case.”

[My added emphasis.]

“May need to be made”, not that it is ‘known’ to be needed – if you’d use s136 but for the location you find yourself in, it’s reasonable to argue that ‘an application may need to be made’.  This is not a balance of probabilities decision!

DAVID STACEY INQUEST

Now, some mental health nurses fully get all of this.  In December 2018, we say the inquest in to the death of David Stacey unfold in Leicester.  David, as his family wanted him known during legal proceedings, died in a road traffic collision one year prior, after an urgent MHA assessment was convened in his home after the police had been called to him in a condition of distress.  Officers had called street triage and the nurse had assessed him as requiring admission to hospital, but he declined to consent to this.  Because of concerns about his mental state and after deciding that he lacked capacity to decline, the nurse sought an AMHP to convene an assessment a few hours later this took place.  So far, this is a textbook response and exactly right by the officers and the nurse that s136 couldn’t be used and that the MCA could not be relied upon to justify removal – it was MHA assessment or nothing; and nothing wasn’t really a safe option.

An application for hospital admission would have followed if a bed had been known to be available, but because there were bed management problems within the trust, the AMHP felt unable to finalise the application and this is where it went badly awry.  The police had remained with David until the AMHP and DRs arrived but left after a (roughly) 10 minute handover.  This was in accordance with the police assessment of risks and at instruction of the mental health nurse who had convened the assessment.  The AMHP and DRs agreed in the inquest they had not asked the police to remain after the briefing of background.  Finding they were then unable to secure admission, there was consideration of asking the police to return, especially after David made an attempt to stop a doctor making a phone call about admission.

Of course, it is not the responsibility of the police to return or remain with mental health patients where applications for admissions are not made after a MHA assessment.  That responsibility belongs to the AMHP and / or mental health trust.  It is certainly not true, despite what the ‘expert’ says, that the police could or should return and remove David from his own home under the Mental Capacity Act 2005.  (Interesting to note, no mention was made about which hospital he should be removed to because the point presumably is, if it was known there was a hospital willing to receive him, he would have been ‘sectioned’ in the first place!)  And this was eventually agreed in the Coroner’s Court, that no power existed for the police to remove David anywhere under the MCA.

LEARNING POINTS

So here we are in 2019, still seeing incidents being flagged where this basic mental health law is misunderstood.  But worse than that, we see ‘experts’ lined up against the police demanding things for which the law does not provide.  I know the square root of nothing about psychiatry and mental health nursing: but as a professional police officer who is required to read, handle and internet legislation in my every day work (I even passed a couple of exams along the way to my current rank, you know?!) … I have a working familiarity with the law, now including mental health and capacity law.  The Sessay judgment was issued nearly eight years ago and here we still are.  In the most recent of referrals which prompts this blog, the ambulance service even reported the mental health nurse demanding and being rude to police officers because they were not doing as instructed.

I repeat this point – no matter what you or I think and no matter how inconvenient it is, no matter what other countries do or how difficult it is, the law is the law and there are aspects of it which cannot bend.  Of course, there are also gaps and ambiguities in the law, there are resource difficulties in services of all kinds, but all too often in these disputes, we see evidence that people didn’t even TRY to do what is plainly required before dismissing it as too difficult or not likely to work.  You only need to look at the David Stacey case to see that it IS possible to convene urgent MHA assessments overnight, where necessary.  This should be possible everywhere, and whether or not it is, this next point is key for police officers:

Many of us have been investigated following deaths after contact or in custody and we know the accountability mechanisms over us are far more intrusive and effective than those over many other professionals so being able to evidence that you tried to do the right thing and resisted exciting career development opportunities to do the wrong thing for some other professional’s convenience or because of their lack of legal knowledge should be resisted.  Yes, we want to work in partnership with other organisations but no, this doesn’t extend to conspiracy to break the law and violate the rights of the public we’re here to serve. And the risks of not ensuring our knowledge is a decent working knowledge is having to stand in a Coroner’s Court where someone’s family is watching you explain you and your organisation didn’t really know what you were doing.

Ignorantia juris non excusat.  Semper.


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


Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s