I doubt many police officers reading this will spend much of their time lurking around mental health forums for nurses, AMHPs and others. A few who work in this area do, and of course there’s also an email based MH law forum that includes a lot of legal professionals who specialise in mental health law. You see interesting stuff on there because although the groups are rarely secret or closed to non-MH professionals, they tend to be occupied mostly by people from such backgrounds and I can only assume it’s easy to forget that members of the public with experience of the mental health system, carers and the odd police officer (pun intended) may be watching and listening.
On the Facebook mental health nursing group, for example, I’ve been repeatedly invited by admins to join in, because discussions are going about issues affecting the police and they wanted my contribution. It’s fair to say my contribution has been sometimes been welcomed about as gladly as the police doing a drugs raid, but there we go. It allows me to learn from discussions that affect policing and attitudes towards policing. Yesterday, I came across a prime example of something I found quite stunning, yet there it was on a professional discussion forum as a serious suggestion. Of course, I’m sure the question was hypothetical(!) and it was all about learning and open discussion –
A community treatment order (CTO) patient in Trust A had begun to deteriorate and moved from his home area to live temporarily at his family’s home in Trust B, some 200 miles away from his own home. Because of concerns about this health, Trust A in his home area had formally requested Trust B in his family’s area to provide support for him and for risk assessment reasons, it had been determined that this would only occur if the patient attended Trust B’s premises – they were not willing to attend his family home. The patient refused to engage and the concerns about his wellbeing persisted.
What should happen now?! – the questioner wanted advice. ‘Hypothetical’ advice, obviously.
THE RECALL PROCESS
The only answer offered? – post CTO recall papers to his family address, wait for them to take legal effect (it takes two working days for such papers to legally ‘kick in’) and then ring the police in area B to report him AWOL, so he can be ‘transferred to hospital’ under s18 MHA by the police officers. No mention of the ambulance service, no mention of mental health professionals from Trust B, no mention of collaboration or support for the officers involved or by the officers involved to others. Just ring the police.
Some caveats, for the avoidance of all possible doubt about what I’m saying here! –
- Nobody, anywhere is arguing the police never play a role around AWOL patients or CTO patients returning to hospital.
- Nobody is arguing that mental health services should just ‘sort these people out’, or anything similar – we need to work collaboratively.
- Nobody is saying that the police play no role in supporting mental health services if there are risks in the community around work they must do.
- Nobody is suggesting anything other than this: just dumping this on the police is entirely unacceptable.
But it’s also more than that: there are good reasons to argue this is a breach of the Code of Practice MHA (on more than one level, actually); and perhaps even more importantly, that it leaves so many variables uncontrolled that we could easily see this end up in a nightmare we all come to deeply regret and which will always look like a predictable risk, when viewed in hindsight, perhaps by a Coroner or the Independent Office for Police Conduct.
The suggestion in the case had been the police would transfer the person to a hospital in area B, in the private sector. So let’s imagine the bed is authorised and available on a Monday when the plan is conceived and CTO papers are posted. Let’s imagine the postal system works well and by first-class post, the papers arrive on Tuesday morning. They legally don’t take effect until Wednesday so s18 AWOL powers can’t be used by anyone in any circumstances until at least then. So I have questions! –
PREDICTING PROBLEMS
You might ask yourself, what could possibly go wrong here?! I think there’s a lot that could do wrong and we need to get serious —
- We have a patient who is known to be refusing to engage – what do we think about this period of time between notices landing in the post and whether he’ll still be a the family home if or when the police turn up?
- Will the man still be there – will his whereabouts be known at all – given we know he’s deteriorating and we know he not engaging, what kind of risks will he face or pose to himself? … or others, given MH professionals won’t attend his family home?
- Assume the police do turn up (with or without support – more on that point, below), this will be no sooner than Wednesday when the CTO recall takes effect, if not later if he’s not immediately there – will the bed in area B still be available?!
- If area B police turn up at area B (private) hospital and there is no bed, will the hospital lead the process to sort the situation out and help to support the patient and the officers whilst someone resolves the situation?
- Or will they just close the front door after refusal and leave the cops to sort it with a MH team 200 miles away?! – I’ve had this happen to me and to some of my officers in the real world.
- What if that all ends up happening out of hours because of the way in which the police finding the patient ends up unfolding?! … where is the support from someone coordinating this?
- The Code of Practice states (chapter 17 in both the English and the Welsh Code) conveyance should be a by non-police vehicle method – who is sorting that and what form does it take?
- If the officers are having to sort it by ringing the ambulance service for a paramedic-technician crew with a yellow truck, will they respond within 30minutes, within 4hrs or as and when?
- How do police supervisors liaise with them Trust B mental health professionals to coordinate attendance at the family home? – are Trust B staff agreeing to attend with the police at all?!
- Will Trust B (who had declared somewhere in the earlier discussions that they had no legal duty here) be assisting officers locally, given the main MH team is 200 miles away?
- If we’re shouting about legal duties, the police don’t have an explicit one either – section 18 MHA does not list the police first as having primary responsibility for AWOL patients and the Code of Practice (para 28.14 makes recovery of AWOL patients whose location is known) states it’s primarily a healthcare responsibility.
- If it’s OK for Trust B to just declare ‘no legal responsibility’ and leave a situation to fester, why will it be irritating to some that I’m point out this also applies to the police? – pointing it out ‘hypothetically’, of course.
- Are we aware of paragraphs 28.14 of the Codes of Practice in both England and Wales? – NB: it is the same paragraph number in both Codes. These provisions make it crystal clear that the recovery of AWOL patients whose location is known is a matter for mental health services.
- Nothing prevents police support to that process where it is required, but there should be ‘cogent reasons‘ for departing from the Code by police acting alone in doing this – what would they be in this non-urgent case where it’s OK to post off a letter which takes effect days later?!
I’m at a loss and I write this particular post, not just because of one question on a discussion forum. I’m seeing more and more assumptions made in discussions that don’t involve the police about what the police should do – discussions which seem entirely uninfluenced by things like statutory guidance. I’m amazed at the number of times that I and other police officers around the country who are having to try to improvise our way to almost post-graduate levels of understanding about mental health and capacity law in order to argue with professionals who are formally qualified to this level for, quite frankly, ignoring it.
RESPONSE AND NEIGHBOURHOOD POLICING
You may remember a previous occasion mentioned on this BLOG where a police sergeant had misunderstood police powers where a CTO patient had been recalled – not the sergeant’s fault: he’d had ZERO training on what CTOs were and these issues come up less than once a career for officers. A complaint had been made about his error and I was simply the duty inspector at the time the complaint was made, so dealt I with it. As part of resolving it, I agreed to do a range of things, but one of them was attend a meeting with a community mental health team to discuss police support for their work. After the complaint was made but before the meeting took place, another incident occurred involving my own response team where a nurse wanted support for recalling a CTO patient. I got involved in it directly and asked, “When was the recall notice served and how was it served?” The nurse replied by asking, “What’s a recall notice?!” So I sorted that job and later in the month went off to the meeting about the complaint incident involving the sergeant.
The first thing I was asked to do was give assurances that this ‘shocking’ lack of knowledge and support from the police would never happen again!! Errr … OK. Let’s think about this:
What are the chances that with thousands of police sergeants and tens of thousands of police constables working on response and neighbourhood policing functions that we will never, EVER again see a misunderstanding by the police about CTO recalls when nurses who work all day long in community teams managing these patients don’t know what they are and how they work?! What POSSIBLE chance is there, the police will NEVER, EVER get this wrong again?! I suggest there’s ZERO chance and that this reality needs managing because CTO recalls are a less than once a career event for most response sergeants! How effective would training be if I gave it this week to all sergeants and then one of them doesn’t need the training until the middle of the twenty-first century?!
The worst news for frontline officers is this: you are operating in sub-optimal partnership environments where the lack of legal knowledge amongst those who are being pushed towards you as ‘experts’ is often found to be lacking – as with the MH nurse above who didn’t know what a recall notice was and why me asking about it was legally important. Inherently, our mental health system relies upon its ability to get you to do things they know they shouldn’t be asking for you to do or not to do alone; and if you are to spot these exciting career-development opportunities to create massive problems that may well be crawled over, you’re going to have to read and learn the MHA and MCA to a standard you probably never thought necessary. I hope this BLOG helps with that – it is the original intention of this BLOG that cops read it and find the material synthesises and makes easy the complexity of the law and its supporting regulations and statutory guidance.
Please tell me if I can do that better or differently for you.
LOOKING DOWN THE TRACK
The reason paragraphs 28.14 of the English and Welsh Codes are vital is this? – can no-one suggesting the casual placement of this on the command and control system of the police see the difficulties that could arise when the police pitch up, unannounced to recover someone to a hospital which may or may not still have a bed available at the point where the officers arrive with the patient? And if it’s not available (real examples of this happening, available on request) then what we asking two fairly junior police officers to do, potentially out of hours with a patient in an area where the MH trust itself is distancing itself from responsibilities?! At the risk of being accused of over-dramatising this: it’s almost as if we haven’t had deaths and human rights violations arising from AWOL recovery jobs led by the police which should have involved healthcare support for the patient and the officers dealing; it’s almost as if we haven’t had examples of hospitals saying they’ve got beds and then suddenly deciding they haven’t; it’s almost as if the lessons learned from death in custody thematic reviews are learned in policing and not learned in the healthcare system.
And you can just imagine it: the patient becoming violent or distressed, being restrained and the police bouncing around a system trying to resolve a situation they didn’t create and which has been placed upon them by other agencies who’ve decided that statutory guidance doesn’t apply to them or that it’s too difficult to navigate across two mental health trusts so far apart. There is almost no way a Coroner or IOPC investigation is not going to conclude that there were obvious risks with the approach that should have been anticipated by health or resisted by the police. Which is why I will end, by thinking this through from the point of view of being the police duty inspector in area B when that job lands and the control shout up for advice, not least about what on earth a CTO is: and I’ve done this several times in the real world around the reporting of AWOL patients whose location is known or CTO patients being recalled:
Contact the caller from mental and ask the checking questions which are implied by what I’ve written above. Then, assuming nothing is added which causes me to deflect away from my instincts here: tell them that paragraph 28.14 of the 2015 Code of Practice for England (2016 Code of Practice in Wales, but it’s the same paragraph reference number) points out that recovery of AWOL patients whose location is known is a matter for healthcare professionals. I would point out I’m willing to support attempts to recover the patient if there is a level of risk that makes this appropriate (and I will need detail about that risk, to properly risk assess and risk mitigate for officer safety) but that I will not be attending on our own, because it would breach statutory guidelines. Trust A should liaise with Trust B and / or ambulance service B to ensure proper systems are in place and I’d want advance reassurances ahead of dispatching any officers that the bed is still available and knowledge of what the contingency plan is should that situation change because of any unavoidable delay in organising NHS resources or finding the patient.
And then wish them a good evening, politely end the call and get on with leading police officers in their operational policing priorities. You may have seen a few murders on the news, for example – something about a ‘knife crime emergency’ and the police putting their resources to priorities?!
This post is NOT an argument about police resources, foremostly: it is an argument about human dignity and patient wellbeing.
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
Mental Health Cop 
A thoughtful piece. Thank you.