During the inquest last December after the death of David Stacey in Leicester in 2017, his family requested he be known throughout the legal proceedings by his first name. The story behind David’s death is tragic and will be familiar to all AMHPs, police officers and mental health professionals across the country. The inquest returned its verdict of accidental death contributed to by the neglect of NHS mental health services on Friday 14th December which allowed me to use the verdict as a most pertinent example the following Monday when the Care Quality Commission held an event in Manchester to discuss s140 of the Mental Health Act. Regular readers of this BLOG will know I’ve been banging on about s140 MHA for more than a decade and stubbornly refusing to listen to people far more qualified and experienced in these matters than me.
Early in 2019, the Coroner for Leicester issued a Preventing Future Deaths notice, because she believes the issues uncovered during the inquest could contribute to other deaths, if not checked in all other areas of the country. She has written to the Secretary of State for Health and Social Care, Rt Hon Matt Hancock MP; as well as to the relevant NHS organisations in Leicestershire, pointing out there were no specified policies or designations in the area for ‘urgent admissions’ and because David was clinically assessed as requiring an urgent admission, this breach of the statutory duty contributed towards the dreadful outcome. Having previously made Freedom of Information applications to a considerable number of CCGs around the country (including to Leicestershire CCGs, most ironically enough!) the Coroner’s suspicions are quite correct: such problems are far more widespread and they could (and they do!) contribute to other untoward outcomes, including avoidable deaths and potential human rights violations.
THE LAW OF THE LAND
Many senior managers in the health service do not know of s140 MHA. When I undertook some work in 2015 as a part of the ‘Crisp Commission’, the opening meeting involved the dozen or so commissioners introducing themselves to each other and we were asked to highlight the one issue we wanted to emphasise or inquire over. I raised section 140 MHA. Several of the other, very senior professionals, many of them in the mental health system admitted they weren’t familiar with it. When I attended the launch in 2016 of the new pan-London commissioning standards for section 136, one of the discussion exercises gave rise to me highlighting this provision and yet again, a very senior NHS manager from a London MH trust asked, “What’s that?! – I’ve never heard of it!”
I can’t say this too much or too loudly: section 140 of the Mental Health Act 1983 is the law of the land. It’s actually s132 of the Mental Health Act 1959 carried over when the legislation was updated. It has been the law of the land for sixty years now and at the risk of sounding flippant, it’s probably time we started getting to grips with its implications – I sugggest the honeymoon period is over, six decades down the line.
Frankly, we wouldn’t consider it acceptable for frontline nurses to say they didn’t understand s2 or s3 of the Mental Health Act; we wouldn’t allow Chief Constables to get away with not understanding the requirement to designate certain police stations for the legal purposes contained within s35 of the Police and Criminal Evidence Act 1984. It shouldn’t be acceptable for commissioning managers and senior operational managers not to know of s140 because it’s a section of the Act just like section 136 is; just like section 2 and all the others. It imposes a legal duty (NB: it’s not an option or an opportunity, but a legal duty) upon Clinical Commissioning Groups in England and Local Health Boards in Wales to designate those hospitals in their area (or to which they have access) which can receive patients in ‘circumstances of special urgency’. And in any event: Ignorantia Juris non Excusat.
THE RIGHT TO LIFE
I want to argue a few things, by way of continuing to ram this home. This is partly repetition, to be fair, it’s in addition to everything I’ve written before on this site (and you’ll find at least 10 articles on s140 throughout the history of this site) —
- This has to matter in the real world – section 140 clearly implies that where a patient’s admission to hospital is urgent, their admission to hospital should be possible. Commissioners should be commissioning in such a way as to ensure designated hospitals can, in fact, receive real people in the real world, urgently. I’ve heard it argued that s140 doesn’t oblige hospitals designated under this provision to admit patients, which I can agree with. Please find me the legislation which says the police must carry guns or investigative your burglary. Just because something isn’t explicit, doesn’t mean it isn’t the law. The s140 provision does not expressly go on to impose specific duties upon hospitals which are designated by the CCG or LHB. But ask yourself: what would be the bloody point of requiring CCGs and LHBs to designate hospitals if those locations were not run in such a way a patient could be admitted when they would otherwise be at ris, if left?!
- Irrespective of legal inference, human rights matter – even if I am wrong in the previous point and the MHA had, in fact, been written so that CCG managers would undertake pointless bureaucratic exercises to specify hospitals for absolutely no purpose at all(!), the CCG, the provider mental health trust and the local authority MUST ensure that they way in which they discharge their duties ensures the human rights of the patient. This is where previously, patients or their families have brought actions against the mental health system: we have seen article 2, 3 and 5 violations found where patients’ fundamental rights have not been protected by the operation of domestic law. Perhaps this is what David’s family will argue? – that his death in an accident caused by neglect is a straight-forward article 2 violation?
- We cannot ensure safety, unless this interpretation is roughly correct – in David’s case, there has been an inquest, teaching a legal conclusion. That was reached after considering the question of the role of the police and the Chief Constable. Evidence was heard that the mental health trust thought the police could and should have done more because of their inability to urgently admit David to hospital. In addition to the obvious parity arguments here, there is also the observation that our police service does not have legal powers for everything the mental health system may prefer it to do arising from their own interpretation of their legal responsibilities.
DRAWING A DIAGRAM
At the risk of setting this out all-too-plainly, then: we need to be able to admit people to hospital urgently, from time to time; we know this will mean AMHPs have to be able to make applications under the MHA to hospitals for that admission to occur; we know that hospitals which are full cannot always take more patients so we need to run our mental health system where hospitals are not at 99% or 100% capacity and are capable in the real world of receiving patients in urgent circumstances. Imagine a police custody system where all the cells are full, the vast majority of the time – further imagine your family or your home were attacked and the police called: what would you do if the officers said, “Sorry, we can’t arrest these offenders because the cells are currently full – I now they’ve just stabbed you or burgled your home, but there is no capacity to detain them, so you’ll have to manage as best you can and we’ll come back when there are cells free.” I suspect all hell would break loose. Frankly, I would expect frontline staff to care about this, I’d expect them to arrest people who need arresting and make the problem about cells one for me as a duty inspector.
The problem is: hospitals are often having to operate at capacity or beyond. And if you’d like some up-to-date and fairly depressing news about this, the NHS Long-Term plan, published as recently as January 2019, does not involve any intention to expand the hospital bed base. Those aspects of the plan which relate to community mental health care, crisis teams and 24/7 crisis access are all plans which are in years 3 to 5 of the long-term plan, dependent as they are upon recruitment of staff who take time to train. So given there are thousands of potential s140 situations every year, it may mean the NHS may remain in breach of statutory duties and I wonder if other patients like David may lose their lives or face violation of their fundamental legal rights, before we see some respite from the pressure? I’m not trying to be alarmist here: I’m trying to set out what I’ve seen and contextualise it for police officers who may well be asked to pick up the slack, and not always in situations where they have the powers or ability to do so. This is about preparing for reality by thinking things though before they become very difficult indeed.
It is estimated between 3,900 and 4,500 cases occur each year in police custody where individuals in need of hospital cannot be admitted in a timely way and the police are expected to care for people in the cells until beds are found. Every one of those detentions is an Article 5 ECHR violation, by default: detained by the state outside the parameters of domestic law. In addition, some detentions will amount to an Article 3 violation, as seen in the MS v UK  case before the European Court. Add to those numbers, the similar situation which emerges after use of s136 MHA where patients are assessed in a Place of Safety and require admission, but where no bed can be found within the available legal timescales – if we struggle to find beds within 24hrs in one-half of occasions where it is required (hence the previous figures), then you can easily add another 2,500 problems to the pile. Then of course, situations like David’s: assessments in the community where individuals are neither under arrest nor detained under s136. We don’t know how many of them there are, but some NHS trusts have over 50 people at any given time who are post-assessment, awaiting a bed. We do know that David’s is not the only appalling case where a life has been lost before a bed is found.
BRACE FOR IMPACT
So operational police officers need to prepare for the reality that many CCGs are unaware of s140; even those who are aware are usually not commissioning or operating in a way which ensures urgent admissions are possible when they are necessary. The fallout of the long-term plan is that respite for this pressure is at least 3yrs away and by then there could be easily be more than 20,000 situations where fundamental rights are compromised, if not violated and it seems likely more deaths may occur. There are various reasons why police officers of all ranks need to be tuned in to this.
They are extremely straight-forward –
- The interpretation I’m applying here is very far from agreed by all! – in the course of my career, I’ve witnessed NHS managers shouting at police officers in order to vehemently disagree with this and once had to invite some to calm down.
- The counter-arguments previously offered didn’t survive contact with the Coroner’s Court in David’s case and contributed to the reasons behind why a ‘neglect’ verdict was returned – the old Mental Health Act Commission viewed the delay in making MHA applications as a breach of the Act.
- In many cases where no beds are available, the pressure on police officers to act unlawfully as a stop-gap has been considerable – in David’s case, an ‘expert psychiatrist’ wrote a report and offered evidence-in-chief that officers should have removed him from his house under the Mental Capacity Act.
- There is no power at all for officers to do this, as was clearly demonstrated in the court by counsel for the Chief Constable; in other examples, the expectation has been the police would just keep detaining people in hospitals or police stations for hours, if not days, on end.
- It also doesn’t really matter whether I’m right or wrong about the interpretation that I apply to this: because no matter, human rights trump everything – you can’t detain people against their will, outside the scope of domestic law; you can’t subject them to inhuman and degrading treatment and you can’t fail to protect them when their life is at risk by breaching the law!
Operational officers, custody sergeants and duty inspectors should always remember to escalate these cases to silver and gold commanders who should, in turn, give thought to the content of the NPCC escalation process for these very matters. Force mental health leads all have copies of this. There are various things that need doing in all of these cases which are outlined in the policy. I’m very aware that some partners who do not share the interpretation outlined above may feel the escalation policy is promoting conflict where it should not exist, but I offer this one reminder by way of conclusion: the neglect which contributed to David’s death in late 2017 was that of NHS organisations who were found to have been in legal breach of statutory duties. The court did not offer the jury any option to find neglect by the police during their deliberations. Because there wasn’t any. It’s important that police officers do fully understand what legal responsibilities are theirs and distinguish them from those belonging to others. You need to do may need to be able to do this amidst uncertainty, confusion and occasionally, shouting.
In other words this: operational officers are sometimes required to decide whether their professional decisions will be guided by partnership policy preferences OR the law, where these things are not the same. We all took an oath of office so whilst everyone would prefer to work in cooperative partnership with other public organisations, the reality of being a police officer in the modern world is that you’re often obliged to police in another kind of context altogether. By default, whether you like it or not, you may need to identify those situations in which you need to choose and my advice is, your accountability mechanisms expect you to police according to the law and you should ensure escalatation of the difficulties in doing so to the more senior police managers who are paid to take up those arguments on behalf of frontline officers. Some legal responsibilities belong to the NHS and will never, ever become something the police can do anything with. To quote one of the country’s most senior Chief Constables in a recent comment about the police service being required to fill in for other services, “I can’t fix that for them”.
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