In 2018, Professor Sir Simon Wessely concluded his review of the Mental Health Act 1983 and recommended certain actions. In early 2021, the Government published a White Paper with their suggested following that review and today, they have published their response to that consultation.
This is an early post after a relatively light read. It highlights the main points of the review as they seem to affect the police service.
There are only two main issues emphasised, in addition to the general need for ‘awareness’ and improved focus in policing and the broader criminal justice system (for example around neuro-diversity).
But the two particular points are —
- Mental health holding powers for Emergency Departments —
- Currently, no-one in EDs perceived to be at risk can be subject to a ‘holding power’ under the MHA.
- There is endless, unresolved debate about the extent and applicability of the Mental Capacity Act in those circumstances.
- The Government White Paper therefore proposed ensuring clarification that ED staff could detain people they thought would be at risk if they left, instead of having to rely upon the police to attend and use powers under s136 MHA.
- Today’s response (see p65) confirms the Government intends to proceed with a legal mechanism to ensure ED can act
- Implications? —
- My view on this was different and if you read p65 onwards, you’ll see little mention of the concern I had.
- If ED staff have a holding power (of whatever kind) and decide to use it, who is going to go ‘hands on’ to give effect to that legal decision? My point is just that it will need planning for.
- Police won’t be there (by definition) and if the idea is that the power exists to prevent the police being called, that raises Health & Safety considerations around preparing for forseeable events as well as staff training and awareness, possibly including review of contracts with private security.
- It also raises the question of whether ED staff want these powers – my best guess is that some may feel, having trained as an ED nurse or other professional, they don’t see it as their job to restraint a vulnerable person at risk of walking out.
- There are answers to this: it just all needs thinking through in advance otherwise the answer will be “call the police” which is exactly the problem the proposal seeks to resolve.
- Mental Health Act principles —
- The White paper proposes four clear principles on the overall use of the Act, to be written in to the Act itself and included in a new Code of Practice.
- Today’s publication states that there has been recommendation for the police to be included in formal training of those principles.
- Implications? —
- Firstly, it should be borne in mind what HMIC said about police training in 2018 in the first thematic inspection of policing and mental health, Picking Up The Pieces – see recommendation 4 of the report.
- I’d have to presume this also means how to put those principles in to practice and I suspect this point might be a point of consideration because of its inherent reliance upon partnerships.
- For example, the Code already says certain things about the principle of least restriction and dignity and we also know that police services receive requests to act outside the Code (ie, not the least restrictive principle) because there has been no planning for how something would otherwise be done without recourse to policing.
- This can affect whether or not something is genuinely done in the least restrictive way.
- My favourite example is always this one:
- The Code says conveyance to hospital after someone is ‘sectioned’ should involve the police only where necessary, when someone is ‘violent or dangerous’.
- We know that inquests have examined conveyance or potential conveyance where patients could not fairly be described in this way as either ‘violent’ or ‘dangerous’ and yet it happened or was suggested anyway.
- The ability to give affect to noble, more fundamental principles of this kind is contingent upon the system as a whole being set up to allow for it and its regrettable this isn’t always the case.
When I’ve more time, I will cover some of the stuff that’s not about these policing issues. If you’re going to try to read all this, be aware it’s a long and dense read, so put the kettle one first – and good luck!
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 OBE, 2021
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 – www.legislation.gov.uk