A newly published independent care review highlights a number of points which I think are worth making about the arrangements between police forces and mental health trusts, and about the reviews of this kind which occur after a known mental health patient kills someone. It also links to issues that arise more generally about future events when local policy is considered (mental health trust policy and joint protocols with police services are often published for us to see).
In 2019, an adult man in his 40s (referred to throughout by a pseudonym, Tom) killed his father, then in his 90s, in a stabbing. He was subsequently convicted of manslaughter on the grounds of diminished responsibility and subject to a restricted hospital order, under s37/41 MHA. NHS England then commissioned a review of his treatment and care.
- The tragic incident on the afternoon of the 2nd July 2019, the patient having been seen by a CPN that morning for routine medication.
- During previous detention in hospital under s2 MHA and then s3 MHA in the months prior to the killing, the patient had been given a period of authorised and unescorted leave to his parents’ home address.
- He failed to return from this leave on time and the police were “reluctant to fetch” him, suggesting an ambulance be called.
- Two CPNs attended and he refused to engage with them, so the police were called again and returned him to hospital.
- He was discharged from s3 MHA on 10th June and in receipt of community mental health care until the incident leading to his father’s death.
The review of this incident involved contact with the police service, but no member of the panel conducting it had specialist experience in policing-mental health experience. No mention is made of various details in which I would be interested and there is mention of issues where I had wonder about relevance. It is for that reason, I thought it was worth exploring, given it is a public document.
Two main points —
- The care review open refers to misunderstanding about “protocols and the scope of the law”, yet fails to clarify statutory guidance which in fact, resolves that misunderstanding.
- There is no mention in the care review of s18 Mental Health Act (MHA) or paragraph 28.14 of the MHA Code of Practice, which apply to this situation about who should return the patient in this case.
- The review, whilst outlining these concerns, makes recommendation about clarity for s136 MHA procedures.
- I cannot see why this is relevant to a case which was nothing to do with s136 MHA and everything to do with s18 MHA.
THE CARE REVIEW
The published review states in paragraph 5.2 —
“Tom was admitted on s2 MHA (130218) which was lt converted to s3 … he was granted approved (unescorted) day leave to his parents house. However, he failed to return to the ward later in the day as required. The police were contacted, but they were apparently reluctant to fetch Tom, suggesting that an ambulance should be called instead. There was also some uncertainly as to whether an arrest warrant would be required when a patient is already legally detained.”
There is no obvious reason, on that wording, why the police shouldn’t suggest the NHS undertake to remove Tom back to hospital. This is where paragraph 28.14 of the MHA Code of Practice and legal powers for hospital staff under s18 MHA come in. The power available to the police under s18 to return an AWOL patient is available to an AMHP, to staff of the relevant hospital or anyone else authorised by hospital managers.
Para 28.14 states —
“The police should be asked to assist in returning a patient to hospital only if necessary. If the patient’s location is known, the role of the police should, wherever possible, only be to assist a suitably qualified and experienced mental health professional in returning the patient to hospital.”
Of course, the police can support that, where appropriate, but such support would need to be proportionate to the risks and threats involved, ie, violent or dangerous. All coercive state intervention in people’s lives needs to satisfy those criteria. In this particular case, two CPNs attending did find Tom unwilling to engage, pacing around and aggressive, so they rang the police again. No problem: but it shouldn’t be routine to think “AWOL – must ring the police”.
The care review goes on to state at 5.3 —
”It is not uncommon for misunderstanding (about protocols and the scope of the law) to occur in such circumstances. We would urge the Trust and the police to discuss together how they might consider developing knowledge, understanding and improving practice when patients are detained under a Section of the MHA and are threatening or needing help to be returned such as in these circumstances. This might usefully also clarify arrangements for detention under S.136 of the MHA and the arrangements for removal to the Health Based Place of Safety (HBPOS).“
All areas should, according to the MHA Code of Practice, have a jointly agreed policy for a number of issues, including AWOL patients. The care review is ambiguous about whether they did, whether it was adequate (presumably not, given their findings) otherwise why make the point? It goes on to make suggestion about agencies holding training or seminars to ensure relevant legal matters are understood. Those would and should include s18 and paragraph 28.14, in my submission: entirely unmentioned by the review.
But a final curiosity is their mentioning why it would be useful to clarify arrangements for detention under s136 MHA when nothing in the care review suggests that’s relevant to this case. Why is it there? No idea without further explanation but I can find no trace on the Leicestershire Partnership Trust website of a policy on s136 MHA, which is also a topic the Code of Practice says should be covered.
PARTNERSHIP POLICY
Leicestershire Partnership Trust does have a published policy on its website on the subject of “Missing and AWOL Patients”, dated January 2022. I don’t know whether this is a revision of a prior policy or a new document, nor do I know whether it is supposed to take account of findings in the review just published, which was actually completed in 2020. Having quickly glanced the 2022 AWOL policy, I would say there are ambiguities and legal difficulties within it. As with my concern about the published review, the protocol makes no explicit reference to chapter 28 of the MHA Code of Practice (despite the bibliography claiming the policy is written with reference to it) and specifically again, paragraph 28.14 is unmentioned. Given the heart of the review is about clarifying understanding, I would expect both to make reference to a paragraph of the statutory guidance which actually does illuminates the very problem of who should be returning AWOL patients to hospital where their location is known. I will leave other points alone and flag my questions and concerns internally.
The substantive and broader point remains: this is a care review which raises questions about expectations agencies have of each other, it leads to questions about the protocol on which local practice is (or should be) based. Along with inquests in to the deaths of patients such as Sasha Forster or Jack Taylor and the Preventing Future Death reports which resulted from them, it also raises questions about how well ingrained statutory guidance is to local policy and practice, given it is, in the end, entirely unmentioned in policy and in review of it.
NB: for various reasons, I have recently been reviewing a number of joint policies and procedures which are publicly available: I find very few which seem to take account of the even the main lessons which have emerged in history from Coroners’ Courts, trials and independent care reviews.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2022
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