What’s Missing – and Why?

Having spent plenty of time reading Preventing Future Death (PFD) reports from inquests, I’ve recently been reading through independent reviews of NHS treatment and care.  I hadn’t realised quite as many of them are easily gathered in one place and they are providing fascinating, for largely similar reasons.

In this post, I want to highlight two paragraphs from a recently published review which were drawn to my attention by Julian Hendy from Hundred Families – a charity which supports those bereaved by mental health homicide and I recommend looking at their website which is a mine of information.  The two paragraphs come from a very sad case in Leicestershire where a man in his forties killed his very elderly father.  The man was ultimately sentenced for manslaughter on the grounds of diminished responsibility.  I have blogged about this case before, having read in paragraphs 5.2 and 5.3 of the review and it comments about the return of this patient once AWOL.  Julian drew to my attention other paragraphs later in the report which are more expansive and which justify some re-treatment.

They are, in full —

11.35 – One other area which our team thought merited attention concerned an event in April 2018. Tom had been admitted on S2 of the MHA (13th February 2018) which was later converted to S 3. He was hostile and aggressive during this admission and on 15th April 2018, 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 him; they suggested that an ambulance should go. Other notes suggest that there was some uncertainty as to whether an arrest warrant would be required. Two staff from the ward then attended the family home to persuade Tom to return, but left when he refused to engage with them, when he became threatening and aggressive. Elsie and Frank said they did not feel safe; Elsie said she felt too frightened of her son to ring the police herself. Police were informed and they then returned Tom to the ward. On his return to the ward, Tom was angry, verbally aggressive and pacing.

11.36 – It is not uncommon for misunderstandings (about protocols and the scope of the law) to occur in such circumstances. We would urge the Trust to work with the police to develop a policy or memorandum of understanding to cover the occasions when a patient detained under Section of the MHA (when a warrant for a S.135 would not be needed) has to be returned and is behaving in a threatening manner. This might usefully also clarify arrangements for detention under S.13611 of the MHA and the arrangements for removal to the Health Based Place of Safety (HBPOS)12.”

ABSENT WITHOUT LEAVE

So, the patient was absent without leave, having been authorised a period outside hospital and having then failed to return to the ward, as required by law. Where a patient is AWOL, any Approved Mental Health Professional, staff from the relevant hospital, any constable or anyone else authorised by the hospital can exercise the power under s18 of the Mental health Act, to return the patient safety, using reasonable force if necessary.  It obviously invites the question, if various types of professional (and ultimately, anyone) can be empowered to return a patient, who should do it in the various types of circumstance that can unfold with missing patients? Given parliament expressly authorises forced return to hospital by non-police state agents, in what circumstances should they do this without reference to the police?  A larger question for another day, perhaps but we do know the answer cannot be “none”.

What fascinated me most about the above two paragraphs:  what is not there and what is not being said – and I’d love to know why.

The paragraph makes no attempt to discuss the question of who should do this; it makes no reference to the Code of Practice to the MHA which says something about it and moves straight to the question of police being requested and their “reluctant” response which involved declining to assist.  We know NHS staff then attempted this alone and were unsuccessful to verbally persuade.  Subsequently, the police returned the patient after NHS and the second paragraph makes a  reference to the patient being threatening upon return to hospital with a recommendation about the need for a policy or MoU to cover this.  In all fairness to the authors, all police forces should have a joint protocol with their statutory partners about the return of AWOL patients because this is required by the MHA Code of Practice (as well as on other topics affecting the operation of the Mental Health Act).

PARAGRAPH 28.14

This is small but important part of the MHA Code of Practice in chapter 28 has been relevant in inquests before.  It’s one of those little nuggets of statutory guidance which I committed to memory years ago and have quoted out loud many times, not just in training but in operational situations where others seem unaware of it.

The paragraph 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.”

In this case, albeit the report is not absolutely specific on this point, it seems the patient was known to be at home with his parents.  The fact of him being threatening is unmentioned in paragraph 11.35 and only raised in 11.36 in respect of him being threatening when back on the ward, after the police returned him.  I was therefore left wondering what the objection was to the suggestion NHS staff should follow the recommendations in statutory guidance by returning the patient themselves?  You may wonder about things like staffing levels or training, but there are things we can say about that too.  As the Surrey coroner made clear, it is the responsibility of NHS managers to ensure staffing for tasks which sit with them, by law.  It obviously follows that in order to ensure compliance with Health & Safety law, staff should be appropriately trained to carry out such tasks so we can’t simply argue (as an assistant medical director in the Surrey case did during inquest) that the police are just going to have to do it because the NHS didn’t have enough staff.

Of course, the eagle eyed will have seen the words ‘necessary’ and ‘wherever possible’ in 28.14, to point out there can be a role for the police.  We could debate all day what these words might or could mean, but I submit it can’t just mean “things which arise because of NHS non-availability or a lack of preparedness”, because that was at the heart of the PFD in the Surrey inquest.  Remember what a PFD is: it flags “issues of concern” which are relevant to the prevention of death.  Of course, the police have a role to prevent crime and to prevent a Breach of the Peace, but it’s equally arguable that only kicks in when things are legitimately beyond the ability of NHS staff, properly deployed and trained, to complete tasks which sit with them, in principle.

LEAST RESTRICTIVE OPTION

This stuff is not just pedantry – it’s at the heart of everything that mental health professionals have spent time telling me is at the essence of good mental health care.  The law demands the least restrictive approach – this is a bedrock principle of human rights law about the interference of the state with liberty (and other rights), but it’s also expressly articulated in the MHA Code of Practice.  Two or more nurses removing someone back to hospital or two uniformed officers with all the accoutrements of their profession like handcuffs, batons and increasingly, taser.

This is important for more reasons:

We’ve seen what can happen when those of us affected by our mental health are policed or over-policed.  We also know people who don’t want to be detained have fled, we know that mention of the police can cause people to flee.  We know that even unavoidable policing, done carefully within the limits of the law, has been cited as a contributory factor in at least one death.  Now none of this means anything for this particular case and it’s not an argument about the particular case: it’s about the general principle of reaching for policing – it has risks and it should therefore be proportionate and defendable.

When Leicestershire Police were exhibiting their “reluctance” to return a patient, who’s to say whether or not they were attempting to put in place the importance of principles outlined in the Code of Practice and ensure paragraph 28.14 was being considered?  Even if they didn’t articulate it in this way, it still amounts to the same thing.  And look at it like this: once the police knew the NHS had tried and failed (discussion aside about training of NHS staff or the numbers available, etc.) officers turned up and resolved it all, better able to justify why they had become involved in the first place.

THE REPORT

What I was left with at the end of reading the two paragraphs and then the report itself, was why the authors hadn’t mentioned this expressly.  It’s relevant material from statutory guidance it’s been a point of discussion in previous inquests.  I’ve tried to make all allowances but can’t get beyond how the tone of the paragraphs, at least for me, is somewhat frustrated (and I might dare say, patronising) on the point of police reluctance, without acknowledgement of any kind that there is, in fact, a sound basis for reluctance in some cases.  Of course, I didn’t conduct the review and have not seen the material to which the authors had access so perhaps there is information not made known which means such frustration would be perfectly justified.  I obviously can’t say otherwise but surely, if commenting upon this point in this way, recommendations to organisations in public documents should make the rationale clear?

Why not expressly reference that the Code of Practice pushes in the general direction of the police position, unless otherwise justified.  It should only be set aside where there are “cogent reasons for departure”?  This phrase comes from a House of Lords ruling (replaced by the Supreme Court) about the importance of a Code of Practice – for what cogent reason would services in this case depart from the thrust of paragraph 28.14?  Such reasons should be documented of course, because breaching statutory guidance, whilst not unlawful in itself, can from part of the justification for legal action and it’s of relevant to coroners when cases go awry.  The inquest for the patient’s father has been held and I’m not aware of police reluctance being flagged as a matter of concern.

But it comes back to this: all police forces and their statutory partners should have joint protocols in place that cover five topics to ensure the MHA operates effectively —

  • Section 136 and Places of Safety.
  • MHA Assessments in private premises, including s135(1).
  • AWOL or missing patients, including s135(2).
  • Conveyance of MHA patients.
  • Section 140 MHA and urgent admissions.

Treat yourself to half an hour on Google and you’ll find many areas don’t have such policies in place and many who do, have problems with their policies when you look at the detail.  Again, I’m not casting aspertions: Coroners have said this in many PFD notices.  Add to all this, the finding of HMIC in 2018 that training is not where it should be and you can start to see the problems.  But when we then have care reviews which seem to leave out mention of relevant material from statutory guidance, which one could argue leaves open and interpretation that the police are at fault when it’s arguable the opposite is true and you start to see inside some of the cultural difficulties opened up by the complex interface between policing, mental health and criminal justice.

It’s almost as if omission of this legally relevant perspective is part of constructing a narrative about the role of the police service that isn’t properly grounded.  I wonder why?  It’s also an argument about having police expertise in the writing of reports about policing, which is something we’ve seen before with independent NHS reviews which decide to wander in to the domain of policing.


 

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, 2022


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

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