No-one involved in the discussions and debates around mental health care provision can have failed at one point or another to have bumped up against the question of whether we have enough psychiatric inpatient beds for the country’s needs. There are loads of reasons to wonder about this and plenty of time has been spent discussing it: formal reports, print media and no doubt in mental health units, GP surgeries, police custody areas across the land. If you go back a few decades, there were over 67,000 inpatient psychiatric beds in England – we now have fewer than 18,500 and this reduction needs to be seen against a backdrop of a growing population, increased psychiatric morbidity in the population and increased demand for mental health services.
A bit of background before I get to the point of this post: I have no objection to the principle that we need to reduce the number of inpatient beds to the minimum and reserve compulsory hospitalisation for those situations where nothing else will do. I often hear people say we need more beds and to bring back institutions and whilst accepting we don’t always get the balance right, I do agree compulsory hospitalisation should be minimised as far as possible. We do need much more and far better mental health care in the community.
My concern is about why we’ve gone for the reduction without ensuring we compliment the change of approach with relevant community care? Social media is full of statements that [1990s] care in the community “doesn’t work”, because of the untoward events I’ll come to shortly. But as the journalist Jeremy Laurence observed in his (award-winning) book Pure Madness (2003), we don’t know whether care in the community works because we’ve never really tried to do it. What he meant by this, was that we didn’t fund or staff it properly to give it any chance to succeed – so we can’t really know its potential, it’s never been given a fair chance. And yet we reduced the bed numbers notwithstanding. Great …
The most recent formal report on this – the Crisp Report (2015) – was an attempt to answer the question of whether we had sufficient inpatient beds. I was involved in that as a commissioner and it was obvious at the first meeting of the commission, the answer to this closed question could neither be ‘yes’ or ‘no’. It was always going to be ‘it depends’. And it depends upon the balance of services which are offered as alternatives to inpatient care. Simplifying enormously, the commission found that there were plenty of people occupying inpatient beds who either didn’t really need hospital care to start with, or who could be medically discharged if only the relevant social supports existed for them afterwards. Things like housing, community MH services, drug and alcohol support, supervised living arrangements as a ‘step down’ to autonomy and independence.
THE POINT BEING?
This week, we saw a call from Wendy Burn, President of the Royal College of Psychiatrists, for 1,000 more inpatient beds. The media coverage wasn’t massively detailed, so for ease, I’ll assume the call for more beds is for roughly similar reasons: the community alternatives and post-discharge support aren’t in sufficient supply hence we need more hospitalisation. I’ll tell you now that this goes against the direction of travel on mental healthcare in the NHS Long-Term Plan (2019) so it’s probably not going to happen.
But what bothered me about it all, was the focus on the distress that is caused to patients by travelling out of area to access care, often to private mental health hospitals, for treatment which should be provided to them locally. We know that long-distance placements affects patients’ recovery so it’s important people can remain proximate to their lives and their relatives. I’ve no doubt, being admitted to a psychiatric hospital 300 miles from home would be distressing – we also know that distance increases the need of coercion because I’ve known cases where people agree to voluntary admission to hospital until they learn the hospital is 100 or 200 miles away. They then decline admission and end up sectioned, told it’s happening anyway … raising the ethical question about how voluntary the offer of admission really was, if it was going to be forced upon them anyway, should they refuse?!
But nothing in these articles touched upon the big issue, as I see it – this stuff is not just about distress, important though that is. It’s about unnecessary deaths which are caused by a lack of timely access to beds. The examples are numerous and concerning for reasons that go way beyond distress. Think, for example, of the inquest in to the death of David Stacey. David was assessed under the Mental Health Act 1983 and should have been admitted to hospital shortly afterwards. Instead, amidst confusion about the apparent lack of beds, no MHA application was made and before the bed confusion was rectified, he died in a road collision. The Coroner ruled the overall circumstances amounted to neglect by the NHS and highlighted various breaches of the law in a Preventing Future Deaths (PFD) report. Last month, we saw the Birmingham Coroner issue a second PFD in the inquest in to the death of Nigel Abbott – that PFD made reference to eight others issues by that same Coroner’s area, highlighting suicides which were thought preventable, but for the difficulty accessing beds.
So my point is a legal one: because those PFDs highlight a lack of compliance by Clinical Commissioning Groups with section 140 of the Mental Health Act and given those difficulties led to deaths highlighted as preventable, we can imagine there could be Article 2 ECHR liabilities for the organisations involved. Remember: s6 of the Human Rights Act 1998 makes in unlawful for a public authority to fail to ensure the EHCR protections to which all citizens are entitled. So a lack of beds is not just about long journeys and out of area placements causing ‘distress’ – it’s about a lack of beds being directly linked by courts to preventable deaths; and sitting behind that systemic non-compliance by major NHS organisations with domestic law that has existed for 60 years. (Section 140 MHA 1983 was first introduced to domestic law by s132 MHA 1959.)
NOT ABOUT POLICING
This is not about policing, except in certain specific, indirect ways. We know from various sources that where police officers have started the process which gives rise to Mental Health Act assessment by either arresting someone or detaining them under s136 of the MHA, there can be long delays before ensuring admission. Research done a couple of years ago indicated thousands of cases a year where the delays in identifying beds were so great, that the law was violated (including breaches of ECHR protections) until the MHA processes could be completed. On 1st November 2019, the UK Government published guidance on the application of s140 MHA and, quite intriguingly, that guidance was then removed from the internet after it gave rise to certain responses. They have committed to republishing it in due course – I can hardly wait, having bored myself and other people witless about s140 for well over a decade. And don’t forget the ECHR case MS v UK (2012) which found an Article 3 violation by the NHS amidst another (and thankfully non-fatal) bed delay.
For me, I think we miss a trick if we don’t discuss the inpatient beds issue in its fullest implications: we don’t want to distress anyone and minimising distress is, presumably, a key objective of a modern and humane mental health system. But given some of the implications are not just about long journeys but about systematic erosion and of the fundamental human rights of vulnerable people, I admit to being amazed regulators haven’t started looking at it in those terms. Imagine if concerns about police custody involved unnecessary preventable deaths and systematic violation of the Police and Criminal Evidence Act? I genuinely think we’d see very different types of response, so as a someone used to the structures of accountability which sit over Chief Constables and frontline constables, I admit to wondering.
Distress should be minimised, of course it should – but so should unnecessary deaths and focussing on the legal compliance and safety which achieves the latter help with the former. I’m not sure that’s true the other way around and whilst both are important it is surely amongst the most basic and fundamental of all requirements on state agencies to keep people alive when we know their life is threatened (by suicide) or the lives of innocent third parties by homicide? Preventable deaths are the tip of the iceberg, but they are also where some of the keenest learning lies. For each of them there must be many more incidents which end, thankfully, non-fatally; but I’m not sure we know those numbers.
MORE THAN DISTRESS
Ultimately, the law is the structure to guide how we do things:
- Section 13 MHA – applications for admission need to be made when the grounds are met, and those grounds do not include use of the word ‘beds’. Applications for admission can and do occur – in extremis – without beds necessarily being available. I had to point this out again, only yesterday.
- Section 140 MHA – the responsibility of Clinical Commissiong Groups (and Local Health Boards) to specify hospitals which can receive patients in circumstances of special urgency. Non-compliance with this provision has been cited in at least two Preventing Future Death reports that I’m aware of.
- Articles 2, 3 and 5 of the ECHR – the right to life, the right to be free from inhumane and degrading treatment and the right to liberty, except where constrained by process in domestic law – and section 6 HRA outlines how it is unlawful for a public authority to conduct itself in a way that fails to ensure those protections.
So the task is work within that – what does a system look like which ensures applications take place when the grounds are met, to a system set up to ensure admission can occur before someone dies by suicide and in a way which ensures they weren’t unlawfully detained or subjected to degrading treatment whilst beds were sought? << There is case law on all of this stuff: these are not hypothetical points.
I keep hearing that the NHS Long-Term Plan is the vehicle by which this will change. I will admit: I’m personally not convinced and in any event, even if I’m wrong (it has been known more than once and I do hope I am, on this issue!) the impact of that strategic plan is years away from delivering – the clue’s in the name. The plan says nothing about increasing bed levels and senior health managers are on record and on social media saying this won’t happen. The solution, which I’m sure we can all understand, is to better invest in alternatives to hospital admission in community and crisis care. As the Crisp Report found, if this were to materialise it would go some way to ameliorating the stress that existing bed capacity is under. But the initiatives which need to emerge to delivery that are in years 3-5 of the plan because it requires recruitment and training of NHS staff and that takes time. Until that time and if it works, the pressure on beds will remain and the risks continue to exist. These are risks the police will be expected to manage when someone, somewhere needs to ‘do something’.
This is about so very much more than human distress, important thought that may be.
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 