The Obvious Contradiction

It’s been a feature of the national conversation about policing and mental health for a while: we learn of partner organisations struggling to secure police involvement in mental health incidents which they believe require it or where the law demands. I’m not getting involved in this post with the debate about whether all of those requests are, in fact, legitimate requests which really do need police support – most of them are so let’s just assume they all are, for the purposes of focussing on something else all too often undiscussed and actually much more important still:

We know Her Majesty’s Coroners have had to flag concerns about police forces being unable to send officers to execute s135(1) warrants. It’s worth remembering that only police officers can do this – no point telling them AMHP to ‘do it yourself and ring us with any problems’ (it happens) because the AMHP is not lawfully allowed to execute a warrant and wouldn’t have a warrant in the first place if the MHA assessment could be conducted without one and without police support. So it’s a point of frustration for partners, no doubt – for AMHPs. We also know that other legal situations requiring police support see forces being unable to find resource in a timely way – requests after a MHA assessment in private premises to assist in the onward conveyance of patients to hopsital; similar requests for conveyance after the recall of a CTO patient or the revocation of s17 MHA leave. << All recent examples in my own operational experience.

Two weeks ago, we saw debate in the inquest in to the death of Sasha Forster about returning her when she was AWOL with the hospital arguing that it should be a police responsibility because they didn’t have the staff. Never mind that the Code of Practice to the Mental Health Act 1983 states very clearly that where the location of the patient is known, it’s primarily an NHS responsibility to do this – the argument was still put forward by senior doctors that this statutory Code should just be set aside because they don’t have the staff – the implication being that’s this ended the debate and “crack on officer” because the doctor has ruled on it. In fairness, the actual Coroner ruled, following a jury verdict, that the hospital or trust were in breach of their legal responsibilities and issued a Preventing Future Deaths notice, but even since that verdict, I’ve heard this same point argued. If something needs to be done and the NHS lack the staff, then the police should just crack on because it must become their job to fill that gap.

This is just legally wrong.

WHOSE TIME IS MORE IMPORTANT?

Notice what just happened there? – we started talking about police being unable to resource responsibilities and how this leads to protest, then moved to NHS being unable to resource responsibilities and how NHS complaints about police difficulties are legitimate and should be heard; whereas police highlighting NHS difficulties (which can amount to a breach of law or statutory guidance) are just arguments that can be disregarded. What happened to partnership working? – not much of a partnership if it tends to flow one way. No-one’s time is more important than anyone else’s and guess what?! … the needs of the public should be at the centre of this, not the needs of organisations.

In Sasha’s case it was well documented that she became very distressed by the police. One might imagine the Code is written as it is (paragraph 28.14) precisely to ensure that vulnerable people are not frightened or stigmatised by over-policing, precisely to minimise distress and the feeling of being criminalised for being unwell. But there’s another aspect to this, too. The other day-to-day, ongoing frustrations in policing which go unheard are the unresolved expectations that police resources can be consumed somewhat endlessly in other areas AND that it’s legitimate to complain about them being unable to resource other incidents.

Here’s a fact: if PC Brown and PC Smith are in a mental health unit Place of Safety for 24hrs (or more), they cannot – by definition – be sent to an address in their city to help an AMHP execute a s135(1) warrant. They literally cannot be in two places at once – and this example if not hypothetical. Police forces do have situations on the go at the same time where they are frustrated by ongoing requirements in one situation which should not (according to laws, guidance and local protocol) by left with them to resource; whilst simultaneously taking escalating phone calls from AMHPs and NHS managers to resource something which has been sitting for a while and which really does need resourcing.

Do you see what I’m saying here?!

INHERENT CONTRADICTION

Your police service has finite resources – this has always been true and I was saying it out loud fifteen years ago, quite honestly. But as demand with all its variety and complexity has increased the burden on an ever-smaller number of officers, things like 2-3 day delays in finding a MH bed have to be shouldered by someone or people left at risk. And you can choose. But if you choose not to leave person A at risk by releasing them from s136 detention or arrest because there’s an inability to comply with the law, and if the police feel they cannot in all conscience let that person come to obvious harm; then something somewhere is going undone.

This is, in some situations, the execution of s135(1) warrants or the recall of CTO patients. On other occasions, it is the completion of other policing tasks – like the need to make arrests for outstanding offenders. Already since returning to operational policing, I have had to decide to postpone the arrest of a named offender for crime that was by no means trivial (and certainly important to the victim) because we did not have officers available to do it and where that was partly due to officers remaining in a mental health unit, coping with our broader inability to comply with the Mental Health Act.

The inherent contradiction of our current practice is: we want the police to do things they shouldn’t be doing and then complain when they’re not doing things they should be doing, without seeing that the one thing contributes to the other in very general terms, but on occasion is the direct cause of this lack of service. My general impression after exactly two months back in the real world, now I have my operational qualifications back and have been out at night, in the dark, policing night time economies, domestic abuse incidents and various demands related to mental health is quite simply this: officers are increasingly expected to personally burden responsibility for problems which sit way outside their professional competence and their legal authority.

And I don’t think it’s very fair on them, frankly.

DEPTH AND COMPLEXITY

The final point I’d like to make on this relates to the officers – most of us are fairly intuitive, common sense type people – even if we’re not especially immersed in this area of policing, we still know we shouldn’t always be remaining with patients for days on end and that this is often unlawful anyway.. Indeed many officers feel they shouldn’t be remaining with patients beyond a minimum handover period where it is known and agreed the patient is low-risk. I doubt many officers would realise or be able to quote the fact this is the exact view expressed in the Royal College of Psychiatrists Standards on s136 (2011 / 2013) – and frankly, why should they be able to?! Operational cops shouldn’t have to repeatedly explain strategic partnership guidance to senior doctors and nurses in mental health services!

Over the last few years and recently, there has been frustration expressed about officers not knowing enough about Community Treatment Order recall processes – or for not having heard of CTOs at all, quite frankly! But ask yourself this, why would they?! CTOs are issued a few thousand times a year and not all patients on a CTO are recalled – so the number of recalls per annum will be very, very low, relative to the number of operational officers in response, neighbourhood and other roles like to be the lucky recipient of an exciting career development opportunity to show the depth of their knowledge of s17E MHA. << I wonder how many mental health professionals reading this see the reference “s17E MHA” and have a small moment to themselves wondering precisely what it was; how many read that and knew exactly what it means? We know the answer to this last part is not “all of them”.

So why would a response sergeant know? And in fairness, this comes to a point of clarity about communication. All the police need to know, legally speaking, about a mental health patient who has been determined to need return to hospital is whether or not the patient is, in fact AWOL or absconded under the Act and able to be re-detained. But again: how many MH professionals realise the difference between AWOL and absconded and could explain this different to a police officer? How many have heard of s138 as a method of re-detaining absconded patients, instead of the more familiar s18 MHA for AWOL patients. How many know that if a Part III patient has absconded from s35, s36 or s38 MHA, there are individual powers of redetention under s35(10), s36(8) and s35(7) which only a police officer can exercise – and that patients re-detained under these three specific provisions must not be returned to hospital, but returned to court?

Not all of them.

TWO FINAL THINGS

I’ll leave you with these thoughts –

  • People who are ‘here’ at the moment, cannot also be ‘there’, simultaneously – the laws of physics prevents this so if you are complaining of this fact, it’s going to be a hard one to reconcile for you.
  • People who specialise in something, should be able to help those who don’t – to survive contact with the partnership work alongside our mental health system, it’s necessary for operational officers to have legal knowledge way in excess of those who do this every day because too many examples of exist of the wrong advice being given.

Sorry, it’s demonstrably true … and it just cannot be right.

Operational and senior police officers need to understand what a strategic threat this is to them as professionals and to the very reputation of policing overall, because things are going to go wrong again in the future. Recent inquests suggest: unless we have done the right thing, potentially on our own terms, based on our understanding of our duties and responsibilities, we may end up in professional difficulty. Our duties and responsibilities are very often misunderstood (and I’m afraid to say it, but sometimes misrepresented) by others and we risk ending up liable for problems we didn’t create. Much more importantly, we’ll be unable to look the public in the eye and claim we did our very best.

The most important partnership the police service has and must maintain is with the public.


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