Can’t Fix This For You

I would like to attempt to slay one of the biggest fallacies in all of the debate about how the Mental Health Act should operate, not least because it often happens in connection with operational policing.  And I’m going to fail – because I know that the very proposition I’m about to tackle will lead to the proposition being repeated as proof that the attack on it is fallacious!  You’ll have heard it said many times, especially by Approved Mental Health Professionals (AMHPs) – “you can’t section someone unless you’ve got a bed”.  Also, “You can’t make an application [under the MHA] unless you know you’ve got a bed”.

We’ve seen this play out in Coroner’s courts, most notably in recent times in the death of David Stacey where this whole ‘bed’ thing ended up with a finding of legal neglect contributed to David’s death.  There was discussion in that case and a Preventing Future Deaths notice about legal compliance and like David’s case, this stuff often unfolds in connection with policing.  It arises in two mains ways –

  • in police custody for suspects where someone was originally arrested for an offence; and
  • following use of s135 or s136 MHA after someone has been removed to a Place of Safety.

The expectation often is the police will be willing and able to plug a gap, even if doing so is straight-forwardly unlawful.  Research last year suggested that this phenomenon of unlawful detention pending admission occurs up to 4,500 times year in custody for suspects and I estimate it happened at least a few thousand times more in Place of Safety situations.  And don’t get me wrong: the police service exists to plug gaps and act as a safety net, mopping up and providing urgent contingency for things gone awry, but I will freely acknowledge that I’m way, way beyond fed up of being asked to plug that gap and be that contingency whilst putting myself and my profession at significant risk of liability and reputational devastation – and at the cost of eroding the other statutory service the public is entitle to demand from the police.

Please note before going any further : this openly frustrated and very obvious push-back against a prevailing view of the law is a pushback against non-police agencies and cultures, not against specific non-police professionals who operate within those cultures. This distinction is absolutely crucial – AMHPs and individual s12 doctors are often left in one hell of a position, in my own view; and I’ve every sympathy for each of them as people. But the law demands their professions and their organisations integrate seemlessly to allow the MHA to operate quickly and effectively and, frankly, it doesn’t.  Yet again last week we saw journalism evidencing the increasing demand on policing connected to mental health.

SO LET’S GET ON WITH THIS …

I’m blogging about this again because I see nothing at all in the NHS Long-Term plan to fix this problem and I’ve been struck by what a time and resource consuming thing this since returning to 24/7 policing.  I dealt with incidents like this twice last week alone and have been contacted to day whilst off duty by an NHS professional about such matters. It is my view that frontline officers and police supervisors will continue to face professionally invidious predicaments around “can’t section: no bed” type stuff unless they are sufficiently skooled in mental health law, with real examples to back them up, to be able to ensure they push back against a system which would place them and the public at various kinds of risk.

Bluntly: this line “you can’t section someone unless you’ve got a bed” is nonsense, quite frankly!  And I’d argue I can prove it.  I’ve been contacted after recent social media discussions about this by AMHPs, mental health nurses and lawyers in agreement about my argument and I’ve got examples from the real world to prove it – so put the kettle on and buckle up!

The facts of the case are these – objectively verifiable things, for you to consider.  I could demonstrate each and every one of them with documents and / or witnesses, if I were ever asked to do so –

  • The words ‘bed’ and ‘beds’ do not appear once in the Mental Health Act 1983 – not even once.
  • The relevance of these words emerges from Chapter 14 of the Code of Practice, as well as from policies and practices, formal and informal.
  • We all remember from the 2005 Munjaz case in the Supreme Court (it was then called the House of Lords): you can depart from the requirements of a code if you have a ‘cogent reason for departure’ – we’ll come back to this point at the end.
  • People are admitted to hospitals under the Mental Health Act, not to ‘beds’ and there are plenty of admissions in the real world recently and regularly where there is no bed available – this happened last month in my force area.
  • So there’s really no point insisting “you can’t make an application unless you know there’s a bed” because it actually happens, in the real world.
  • It’s happened dozens and dozens of times over the last year to absolute certain knowledge and there’s no doubt at all there will be other examples I know nothing about.
  • In one case I know of, a patient was admitted to a hospital which had a Place of Safety under s2 MHA and held in the PoS, not in a ‘bed’ or on a ward, until such time as a bed could be found.
  • This only happened after extensive lobbying and threats of legal action by a police force who had this patient in their custody for almost five days, under absolutely no laws whatsoever because the argument was being put, “Can’t section: no bed”.
  • And then they sectioned the patient without a bed – just like they did in my force area last month.

So what on EARTH is going on here if it did actually happen and yet it cannot happen.  Of course, “cannot happen” and “should not happen” are two very different things.  << And this is our conflation, and I think it’s often deliberate to keep the responsibility and pressure on officers to handle the situation, taking advantage of the fact the officers probably won’t have a knowledge of the law and of counter-indicating examples as I’ve been lucky enough to develop.  And why wouldn’t the police believe MH ‘experts’ when they say things about mental health law?  We’ve just spent a decade telling them all that nurses and AMHPs are experts – doesn’t matter the Coroner’s cases are there to show the problems.

  • People are sometimes just admitted to a ward that is ‘full’ and they run over-occupancy; sometimes patients are ‘admitted’ to hospital under s2 or s3 MHA but temporarily cared for in a non-ideal location, like a Place of Safety normally used for those detained under s135 or s136.
  • There have been many more examples of s2 patients in a Place of Safety as a solution to there being no bed and some patients remained there for a week – this is not ideal, I recognise. I’m not saying this is a good thing, that it should be encouraged or happen more often.
  • But I am saying it happens in the real world when other options are in short supply and that it’s an option which could occasionally be considered as the least worst option.
  • Some NHS organisations (which I’m not going to name on here, but trust me: I can name them) have a formalised policy about the admission to hospital of patients under s2 or s3 of the Act in circumstances where there is no bed immediately available.
  • Some NHS organisations (which I’m not going to name on here, but trust me: I can name them) have been known to admit patients (or to re-admit AWOL patients who are unexpectedly re-detained) in circumstances where there is no bed available.
  • I can name and have met AMHPs who have made applications to hospitals when there are no ‘beds’ who have made it clear they felt it was the least worst option from a range of rubbish options and that they were just trying to keep the person safe. 
  • Section 140 of the Mental Health Act is a real thing, it actually exists in the Act is no more or less significant, legally speaking, than the implied requirements of other sections of the Mental Health Act.  It has existed since the 1959 Act (see s132 MHA ’59).
  • I can name solicitors and barristers who have provided opinion (admittedly informal), which supports the proposition that applications to hospital which do not have ‘beds’ would be lawful, if done in extremis where it represents more defendable action than leaving someone at risk. A solicitor agreed with me on this point only this week when it was necessary to discuss the matter.
  • Of course, nothing obliges that hospital to receive the person, but refusal in that desperate context is still a decision taken on the record and may require justification.
  • Section 13 of the Mental Health (the duty of AMHPs to make applications) contains three things which must be satisfied before which the AMHP “shall make the application”.
  • Several Coroner’s Courts in this country have issued Preventing Future Deaths reports (PFDs) about failures to comply with ‘statutory duties’ arising from the failure to admit someone in a timely way, after MHA assessment – David Stacey in Leicester was one of the most recent examples I’m aware of, but there are others.
  • The Birmingham & Solihull Coroner has issued eight PFD reports in recent months because of failures to admit patients who have subsequently died. My best guess is, there will be more in the future with other inquests pending in a number of areas.
  • People have died because of the inability to admit people in a timely way and in accordance with the Act – several of them have, quite frankly. Many hundreds and thousands more have their legal rights, including their fundamental human rights, eroded during MHA admissions procedures.
  • Such examples are far from being isolated – they are everyday events, literally.

THE LEAST WORST OPTION

Finally – and this is the BIG one for me: some readers will no doubt be thinking that the above is, quite simply, wrong – fair enough.  I did say it would be objected to and we all have opinions.  But as I said: the above bullet points are demonstrable things in the real world and I had cause last month to raise some of these matters with mental health professionals.  I was categorically dismissed as if I were being ridiculous.  Again, fair enough – we’ve all got opinions but I’m not entering a popularity contest here and I’d quite happy stick this in to a Coroner as part of explaining myself, cite those very real examples from the real world which back up these points and take my chances.

And that’s the point: whether or not the argument persuades and improves the outcome or not isn’t the only point: it’s also interested in having a better audit trail for those occasions where I would be called to account for my policing of events.  Even if raising this again and again fails to make a difference for the public, it will help make a difference when accountability mechanisms kick in and it may protect the cops I’m tasked to lead and my Chief Constable’s corporate liabilities.  I’m not trying to fix the world: I’m trying to police it – and that’s all I’m trying to do. If the latter achieves the former, so much the better – but if not, I’m quite relaxed about how policing is merely the anvil on which we beat out so many of society’s problems (Sir Robert Mark, former Commissioner of the Metropolitan Police).

Regardless of objections or protests about the specifics of the above, including s13 and s140 MHA – and no doubt they can be made: they simply don’t matter, not one tiny, teeny jot.

And here’s why –

By virtue of s6 of the Human Rights Act 1998, it is unlawful for a public authority to act in a way which is incompatible with someone’s European Convention rights – and Articles 2 (life), 3 (degrading treatment) and 5 (liberty) are all engaged by considerations alive during Mental Health Act assessment and admission. A failure comply with domestic law leading to a suicide could easily engage Article 2, and it does; a failure to get someone urgent psychiatric care in hospital could engage Article 3, and it does (MS v UK, 2012 in particular – something we had to cite at a manager recently to argue that lessons haven’t been learned in 15yrs and they just agreed); and detaining people for days and days in Emergency Departments, police stations or Places of Safety could engage Article 5, and it does.

So ask yourself this: someone is in police custody for a minor offence. They are actively suicidal, implying they may harm themselves upon release and there is EVERY reason to take this extremely seriously. The police have detained the person for almost 24hrs and time is running out to keep them held in police custody under arrest. A Mental Health Act assessment has occurred and admission is indicated.  The grounds for admission under s13 are satisfied and it states “the AMHP shall make the application”.

What do you want ‘the system’ and specifically the police to do? –

  • Should public authorities working together to improvise through the least worst option as a temporary solution which is all about nothing more than keeping people safe; and in a legal way?

OR

  • Should we leave someone unlawfully detained pending the emergence at some unspecified point in the future of ideal circumstances for an admission application may be made, even if that may be 7-10 days away?
  • Should we simply release someone from a safe place in the full knowledge they should be detained, thereby placing them at risk of neglect or harm to themselves or others on the basis that technically, there is no legal application for their admission?

And these are your choices: there is no fourth choice and there is no ideal circumstance because I don’t police an ideal world.  You either improvise, you unlawfully detain or you release someone to a condition of risk.  The law allows for the first option; it prohibits the other two.

And so now you must choose, even if only by omission – and no matter how much we might wish to do so, the police can’t fix this for you.


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


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