OK, Let’s Try This Again! …

Around nine months ago I started writing a series of BLOG posts, in the three-month build up to the introduction of the amendments to the Mental Health Act 1983, contained within the Policing and Crime Act 2017. The original idea was that the changes would kick in during May 2017 but you may remember a snap General Election got in the way of that and an outcome that probably wasn’t the expected outcome got in the way of a suggestion that the commencement order – a necessary Parliamentary process to bring the changes in to effect – might get concluded before the Summer recess for MPs. Parliament only reconvened in early September and we’ve already broken again for the political party conference season, so it’s now going to be October before the order can be introduced to the Commons. The jokes have started on social media about whether this will emerge during 2017!

So, despite everything and way more than half a year down the line from the posts, we are still in a position where we probably have three months to go until the changes take effect! If you are an frontline police officer, this operational summary is aimed directly at you. Twelve bullet points that put the amendments in a shortened form, with links to the fuller posts. Might I recommend you click the link from a smartphone, save the page and bury it somewhere at the back of your phone for reference when this stuff takes effect?! The full posts I’m referring to, written earlier this year are here –

  • Amendments
  • No child may be taken to police stations as a Place of Safety (PoS) under ss135/6 MHA – full post.
  • The police will now have a specific power of search for those detained under ss135/6 both at the point of detention and at arrival in a Place of Safety – full post.
  • PoS detention under ss135/6 may only last 24hrs, unless authorisation extends this to 36hrs in specific situations – full post.
  • Section 136 will be able to be instigated anywhere other than a home – bringing new opportunities and challenges – full post.
  • There will be a requirement, where practicable, for officers to consult with a DR, nurse or AMHP prior to using s136 – full post.
  • Adults may only be taken to police stations in ‘exceptional circumstances’ (yet to be defined) – this post will appear once the Regulations are published.

Finally, if you want to read the new laws for yourself, there are three further posts, one each for the three sections of the MHA which will be amended soon –

EMERGING MYTHS

Certain things have emerged as myths over the Summer and forces have been contacting the College to seek clarification as they’ve continued work to prepare for this.  A short list of the main myths I can recall, just to shoot them down in flames in case they’ve taken hold or risk doing so! –

  • The consultation requirement means officers must consult – no, it doesn’t.  It means the officers must consult, where practicable – those words show the law doesn’t make this strict requirement and if officers simply must act to detain and keep someone safe, the lack of consultation doesn’t render this unlawful. Fine judgements will have to be made here!
  • Officers must search all patients upon arrival at the Place of Safety – it’s not a routine power of search. The law demands that the officer (not the staff) must have “reasonable grounds to believe” the search to be necessary. ‘Belief’, in law, is a much higher threshold than ‘suspicion’ so you can’t just go on a fishing expedition to see what you find!
  • Children can still be taken to police stations as a Place of Safety as long as they’re not in the custody office or the cells – this is not correct. The ban in the Act is on the use of police stations as a whole and not just on the use of police custody. You can’t use the front office or the more comfortable interview room used for vulnerable victims of crime, etc..
  • The extension to 24hrs of detention can be used if there is difficulty finding an AMHP or Doctor to undertake the assessment – if only this were true! Extension can only occur in connection with the condition of the person, not because of a lack of professionals or because of a lack of beds for any admission required.
  • The debate is running about where the new version of s136 can be used – the law says it cannot be used in any “house, flat or room” where that person or another lives; or any “garden, garage, yard or outhouse” connected to it, unless it is communal. So individual homes made from buildings and its land and outbuildings are (still) out-of-bounds.

FINAL COUNTDOWN

Finally, over the coming weeks, I will try to add a couple of posts which are half-baking in my head after conversations over the Summer about unintended consequences. I suspect not everywhere will be fully prepared, notwithstanding the extra time this delay has afforded; and I also think it will be quite lawful to act in ways that weren’t necessary considered as these laws were progressing through Parliament and granted Assent. The major one will be around police custody, I suspect. It will be lawful to use s136 in police custody and I see this having two impacts: pre-release risk assessment; use after a Force Medical Examiner calls for a statutory assessment in custody, but prior to the MHA assessment being conducted. This latter point is the thing I don’t think has been fully considered yet.

After all that, we now seem to be back at the point where we have three months, but perhaps a bit less, until this stuff will become law.  Time to think again about whether we’re ready and for individual front line staff to get their heads around their version of the obligations that will follow and how we will handle the problems that are bound to emerge in due course.


IMG_0053IMG_0052Winner of the President’s Medal from
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.

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Six Missed Chances

I want to ask you to put all your preconceptions to one side for the five minutes it will take to read this and for a short while afterwards. If you use the links below and read the Six Missed Chances report from the IPCC, which is published today and follows the death of James Herbert in Somerset in 2010, your instinct may be that some of it is not practical. I fully and freely admit, that was my instinct when I read a draft copy of it last year and I’ve had to really think about this because it’s challenging us to think again about whether we can think differently. I suspect and do understand some officers may wonder whether the IPCC actually understand police work at all or live in the real world – social media shows these questions are emerging as people read the media coverage that is coming out. I would suggest they read the report instead, because it’s not the longest thing of this type you’ll ever see.

A man died here – the report merely asks the service to think again about whether we could think or act differently: in how we respond to crisis incidents and consider or undertake restraint as a tactic. I admit I don’t think it’s a big ask and would argue we all owe it to James and all those who have been affected by his death to think again about whether it’s possible for us to think differently about the use of force in handling a mental health crisis.

THINKING DIFFERENTLY

Tony Herbert, James’s father, spoke earlier this month at the NPCC / College of Policing conference on mental health. I admit to sitting there, watching this man speak for his dead son to an audience of people doing the same job as those who were with him in the hour or so prior to his death. I sat there thinking about Harrison, my “nearly-13” year old son, simply unable to conceive of any situation where he has already lived more than half of his life and not with us in another 13 years – I admit I dream some non-specific dreams about the life he may be able to lead.  And there was Tony, having lived that nightmare, saying out loud that he doesn’t think officers acted maliciously and that he is absolutely confident no officer came to work that day aiming to hurt anyone. But regardless, James died in police custody and it appears there were lots of complicated reasons as to why he did. These issues are not just about frontline police officers: it is about senior police officers and their responsibilities around policies, joint protocols and effective training; it’s also about healthcare partners who must be able to deliver on their side of the deal: the ambulance service, the emergency departments and the mental health system.

The report is about trying to help the police understand how those various factors combine and need to be addressed in their totality – unless I’ve entirely missed the point. It’s about asking whether the police – at all levels – can think differently, given that James’s death is not the most recent death in police custody involving someone in mental health crisis and the lessons it offers are not unique to James’s circumstances. You can look at the death of Thomas Orchard in Devon in 2012, Sean Rigg in London in 2010 and many, many others and see similar issues: this is about frontline police officers, but it’s not JUST about them – it’s about creating a context in which they stand a chance of thinking that the ideas in this report are possible.

  • As long as they believe it’s unlikely an ambulance can turn up at all, the more likely they are to think we should “get on with it” by conveying people in police vans.
  • As long as they are told by joint protocols that people who are resistant, challenging or even violent should be detained in custody, they are more likely to go to custody.
  • As long as they hear that “A&E is not a place of safety”, the more likely they are not to take someone there who needs it for emergency psychiatric reasons to which published medical guidelines relate.

We could go on.  Last night, I did some Google searching of MH trust websites, in an area of England where I know the ambulance service will not agree to comply with the Crisis Care Concordat requirements for ambulance services, where Place of Safety services still insist that anyone who is intoxicated, aggressive or under 18yrs old still cannot access the NHS Place of Safety and where A&E are openly resistant to the idea of anyone going there purely in preference to custody. So the toxic circumstances that existed in Somerset in 2010, still exist in some parts of England in September 2017. Just imagine if there was another death in custody where officers had used a police vehicle to convey someone to custody?!

WHAT IT DOESN’T SAY

The report itself says what it says: it doesn’t necessarily say what the media are purporting to have it say. Read it for yourself, if you’re going to get in to the discussion: it’s less than 40 pages so anyone with a specific interest in this won’t have to spend too much of their time – and if you do just you want a summary, read the IPCC press release, because it covers the salient points. But what this report does NOT say, contrary to the BBC News headline, is that “the police should not restrain people in custody with mental health problems”.

No, no … the report simply did not say that!

It acknowledges in various places that the police have difficult judgements to make and that restraint when it is used, merely needs to be proportionate to the situation. All over social media this morning, officers are putting up hypotheticals about scenarios they’ve dealt with, then reflecting on the (inaccurate) BBC headline that restraint should not be used as if to ask, “So what do they want us to do here, then?!”  This is why it’s important to take time to read this and reflect: the IPCC are not saying officers should never restrain: but to justify inflicting a fatal restraint on someone, you need to be managing a pretty serious level of risk and threat to justify that as proportionate.

We need to remember this: a man died here and a family’s life is still in turmoil as processes connected to this concluded only this month, more than seven years down the line. My own view is we owe it to James’s parents and family to take a small amount of time to think again about whether we can think differently. We absolutely need to accept, if nothing else, that the strategic and partnership context in which the operational decisions were taken, was inadequate. I was formally commissioned by the IPCC a few years ago to review the multi-agency s136 policy in play at that time. It is correct to say, as mentioned in the report, that if any police force had asked my advice about the policy, I would have advised against signing it.

No-one is saying that the ideas in this report will make a difference in every case, because this is complex stuff with fast-moving factors and no-one is saying it is never relevant for officers to use force and we know, when we do, that is sometimes on people who are medically very unwell. But we do need to show we’ve not just defensively rejected the ideas amidst an immediate sense that it’s not practical and then, this may make a difference to just one or two families who will not have to experience the utter trauma of losing a son and perhaps that can afford Tony and Barbara a small measure of peace.

I just think we owe all them at least a small amount of our time to think on it. 

WHAT IT DOES SAY

And what is there to disagree about?! —

  • Prioritise safety and wellbeing.
  • Try to de-escalate things to prevent or reduce the use of force.
  • Aim to contain, rather than restrain, wherever possible.
  • Ensure robust, effective local protocols across police / NHS so we know what to do and when.
  • Proactively share and better disseminate information about vulnerable people to influence all of the above.

I’m not sure we’re allowed to disagree with this, are we?!  Most of it is the just law of the land in operation and it always has been but it will be really easy to look at this report and say, as Avon and Somerset Police has: much has changed since 2010. New national guidelines for the police on mental health, new training packages, new national standards; a Crisis Care Concordat, some street triage and liaison and diversion; nurses in control rooms, nurses in police cars, nurses in A&E departments, greater collaboration – LOTS of meetings. My biggest fear is that most of those things don’t actually address the key issues which emerge during incidents which can lead to deaths in police custody (or suicide following contact) incidents: if a police officer believes they must get ‘hands on’ with a vulnerable person, how do we bring everyone together in quick time and what are the pathways we’re choosing from? 

This is what was missing in 2010 (and in 1998, when I joined), this is what is still missing in too many areas today – this is what street triage won’t touch because, frankly, they will almost usually not be there to take a view on what is necessary. And faintly, whether or not an NHS service provider does or does not agree or aspire to what the Crisis Care Condcordat sets out, the legal responsibilities for police officers remain. Where s136 of the Mental Health Act, assuming all attempts to de-escalate have been tried, someone presenting like James needs to be removed only to an A&E department because his presentation to the police was such that any number of things could have been going on, medically, and as a police healthcare doctor once said, “Officers seem too keen to try and medically manage challenging patients in custody that no junior doctor would go anywhere near without bleeping for a consultants.” 

We have a first aid-certificate – we are police officers – we have limits. It’s not illegal to call for an ambulance – it’s not illegal to take someone to A&E if that’s genuinely where you believe they need to be. Seek help – both for the patient you’ve detained and yourself because you will usually lack the skills needed to know what’s right. And if the worst does happen, you can look Mr Herbert in the eye and promise him you did nothing less than your very best.


IMG_0053IMG_0052Winner of the President’s Medal from
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.


Mark and the Mental Capacity Act

I didn’t watch the second episode of #Ambulance last night – I won’t bore you with the reasons why, but my iPad was flashing at me towards the end with people tagging me in conversations they were tweeting as they went – all questions about the story of “Mark and the Mental Capacity Act”. So I got it up on iPlayer and watched the final 15 minutes to see what the chat was all about, not least because the tweet I saw first read, “Watching #Ambulance on BBC1 and witness West Midlands Police refuse to attend to assist with Capacity Act … awful.” – and we’re back to the police again! But first things first: I’ve worked alongside West Midlands Ambulance Service for my whole career and I give freely of my own time to help train student paramedics at several universities – my respect for them is limitless. I thought this crew came across really well and it’s obvious that Maya in particular was trying to go the extra mile for this guy. Nothing that follows detracts from my respect for their humanity: it’s just me on my hobby-horse about how blue and green need to work together when legal issues arise about mental capacity in operational situations.

Give the programme a go for yourself, but if you want to focus on what I’m covering here: the story of Mark doesn’t begin until 35 minutes in to the programme, so don’t just watch the last 15 minutes as I did last night! … fortunately for me, the first part of Mark’s story that I missed before tweeting about it, only adds to the points I want to make:

Essentially, two paramedics are called to my old patch in south Birmingham where a forty-year old man has fallen in his house and hurt his back and shoulder. It becomes clear quite quickly that Mark is an alcoholic and he has already consumed six cans of cider before the crew arrives. After a few minutes summarising a 30 minute interaction, Mark refuses to attend hospital and the programme cuts to another story.  At 45 minutes in to the episode, we’re back with Mark and the ambulance service are asking for the police.  “Can we have police rolling on this one, man lacks capacity and is refusing to be conveyed to hospital.” This is where it gets interesting for me because there is nothing like enough information in that request on which to make a good decision about coercing someone to hospital.

I’d encourage everyone in blue / green to read sections 1-6 of the Mental Capacity Act 2005 – at least twice!

So, using the ID a CURE mnemonic, let’s go through the legalities of all this —

DIAGNOSTIC & FUNCTIONAL TESTS

ID – has the patient got an impairment of disturbance of the mind or brain?  << This is the diagnostic test.

  • Unless someone does suffer an impairment or disturbance of the mind or brain, an intervention under the MCA doesn’t get off the ground.
  • Well, the ambulance service were first called by Mark’s partner for physical injuries connected to a fall.
  • When they are exploring the matter of alcohol consumption, it’s made known he has consumed six cans of cider and that ‘normal’ for him is as much as twenty.  His speech seems slurred and there is mention of him having four seizures a day, albeit there is no seizure during the part of the film we see.  The narrative from paramedic Maya focusses on Mark’s addiction and her concern for him is predicated upon that, rather than on physical injuries.
  • So what is the impairment of disturbance that is vital to there being an ability to get the MCA intervention off the ground? – it’s not clear, but seems loosely based on alcohol and addiction.
  • Obviously, we weren’t there and the programme was edited so it maybe something off camera happened that was relevant or which wasn’t broadcast for confidentiality reasons. So let’s run with the crews assessment for now, albeit social media shows I’m not the only one questioning whether he had an impairment or disturbance of the mind.

AND! –

CURE – is the patient unable to communicate his decision; or to understand, retain or evaluate information, relevant to his decision? << This is the functional test.

  • Mark was communicating clearly throughout this clip, albeit with slightly slurred speech. He was absolutely crystal clear in his refusal to attend hospital, making this clear several times.
  • What was it that he failed to understand? Paramedics made it clear that they wanted to let the hospital give him “a full MOT” and that they wanted to get him help with his addiction.  “They can only beat it when they’re ready” which raises an interesting question about forcing him to hospital in connection with his drinking issues if he’s not ready, as was obviously the case.
  • I didn’t hear anything being said to Mark about the risks of not attending, beyond the potential that a seizure could be very problematic if it went on too long. It wasn’t explained to him (unless off camera) how likely this seemed to be. So there was no evidence he failed to understand anything relevant to his decision.
  • Paramedics were on scene for over three hours: no doubt, having been in situations like that, they tried way more than once to explain, persuade, etc..  Was there any evidence in that time that Mark failed to understand anything or that was unable to evaluate any information he was given? Even when the paramedics outlined the risk of a long seizure preventing him breathing, it’s not at all obvious that he failed to use that information in his continued decision to stay where he was.

Everyone over the age of 16 is presumed by law to have the capacity to take their own decisions about issues like medical care, alcohol consumption and so on. The law makes it absolutely clear that no-one can be deemed to lack capacity simply by virtue of having made an unwise decision. So to be confident that we should be ringing the police in the first place, we have to be confident, on the balance of probabilities, that Mark has an impairment OR disturbance of the mind or brain and that as a result of that, in respect of a specific decision, he cannot communicate his decision or that he fails to understand, retain or evaluate information relative to making it.  This programme caused a lot of social medica debate: suffice to summarise, there were a number of paramedics questioning the decision to declare a lack of capacity and amongst the AMHP community of their Facebook group, there was a thread running within the duration of the programme and not one of them was arguing for an MCA intervention.

INVOLVING THE POLICE

But again for the record: we weren’t there, so let’s run with the judgement made. How awful was it that West Midlands Police refused to attend? Well, based on the information given by the ambulance service controller who first rang through, not that appalling at all – nothing like enough information was supplied to enable West Midlands Police to form a proper view and my own opinion was, having two controllers discussing the finer points of the MCA when it seemed likely neither of them was massively familiar with it was probably not the best way to proceed.  Might have been better for someone at the job to discuss the matter with a control room supervisor.

What is clear is that both controllers were wrong about the law, based on things they said.  It is simply not true that paramedics or ambulance service crews more generally have “no powers under the Capacity Act”. The Mental Capacity Act 2005 doesn’t have ‘powers’ – it provides a framework for acting in someone’s best interests after an assessment that they lack capacity and provides that people will be protected from legal liabilities for what they have done, as long as they’ve acted in accordance with the act. To put it bluntly: if you kidnap someone to hospital, you can’t be prosecuted or sued for that, if you’ve done it because they’ve just had a heart attack and can’t make decisions for themselves, etc..

Legally speaking, paramedics have exactly similar scope to act under the MCA as a police officer – they are no more empowered or restricted and before any paramedics say “It’s not our job to coerce people”, it absolutely is. I lecture on this very topic on paramedic training across the West Midlands (ironically enough!) and every session I ask the students, many of whose are experienced technicians making the step up to paramedic whether they see it as their role to coerce people – most of them shake their heads. I then ask whether they’ve ever thrown a blanket around a confused elderly person who is frightened and given them a ‘tactical cuddle’ or engaged in some ‘therapeutic blanketing’ to restrict their arm movements, whilst strapping them in to a chair? Just one example of low-level coercion: but coercion nonetheless and often done because patients lack capacity and the paramedics are doing a sterling job acting in people’s best interests.

PROPORTIONALITY

Of course, Mark was an adult man and it may well have been thought beyond the ability of our heroes in green, which is fair enough – because nothing I’m arguing here suggests paramedics should be rolling around the floor trying to restrain people (albeit a paramedic and I did exactly that in the early hours of Christmas Day 2012, trying to stop some bloke bleeding to death). Once you’ve done the diagnostic and functional tests, you can declare someone to lack capacity: but this doesn’t then tell you anything about what you can do next. It certainly doesn’t mean that anyone can just take them to hospital when they don’t want to go. We need to consider more things first.

  • Will waiting change the situation – perhaps capacity might return, for example because alcohol wears off? Seems unlikely in Mark’s case, given his alcoholism, but it needs to be considered when weighing up how to proceed.
  • Is removal to hospital to only way to meet his needs? – the journey to hospital seemed predicated on a precautionary “full MOT” and the need to get help for alcohol dependency. Forced removal to A&E wouldn’t be justified for a precautionary medical and alcohol services can be access in a number of less restrictive way,s through someone’s GP, for example.
  • What is the consequence to Mark of not acting – it’s fair enough to say he lacks capacity but so what?  “So what” isn’t a flippant phrase: it’s about assessing the proportionality of forced intervention. If a patient is likely to die without acting now, then crack on officer – you can use most of the tools in your legal kitbag from manual handling, to handcuffs or leg restraints. There have even been incidents where Taser has been used to stop people who lack capacity from killing themselves.

The law on this stuff is sections 5 and 6 of the Mental Capacity Act 2005 – section 5 provides that there is general defence to anything done under the Act as long as it is consistent with the principles of the Act: that everyone is assumed to have capacity unless assessed otherwise, that an unwise decision doesn’t amount to a lack of capacity, etc., etc..  But where coercion comes in, we also need to consider section 6.  This states that any restraint must be proportionate to likelihood and seriousness of the harm that would otherwise be suffered – this section specifically makes it clear that restraint is the “actual or threatened use of force”, so when the West Midlands Police officers turn up and tell Mark that staying at home is ‘not an option’ and start taking his cider off him, we’re straight in to s6 territory, (which means we must also be satisfied of section 5). West Midlands Ambulance Service tweeted during the show that ‘after some convincing’, Mark finally agreed to go to hospital. If he agreed to go, why did he need a police escort all the way there?!

In reality, Mark was forced to go, because his choice was ‘agree or be taken’ – that’s not really a free choice, is it?! I’ll end with this observation: when asked by anyone else to act coercively in respect of someone who lacks capacity, I tend to want answers to the following questions –

  • What is the impairment or disturbance here?
  • What is the decision you say they can’t make?
  • Why do they lack capacity?
  • What happens if to this person is we don’t act now?

And using that information, I have to be satisfied that my restraint of another human being represents a proportionate response to the risks and threats outlined: the police are NOT there just to do as they’re told and they are not just entitled, they are obliged by law to satisfy themselves that the action they are taking seems legally justified and is the ‘least restrictive thing’ in that person’s best interests.  I repeat these points: the paramedics were obviously diligent, caring professionals and my admiration for West Midlands Ambulance Service is limitless – but the blue/green interface of the Mental Capacity Act needs more work, in my opinion. From what was broadcast, everyone in the handling of that job, from the paramedics to the controllers to the cops who turned up, needed to be much more in to the detail of things and communicating much more.

Update – following publication of this post, Maya has undertaken further work on social media pointing out there was more to this job than was made clear in the programme. She wasn’t willing to outline what that was, so it could well have been confidential things, unable to be broadcast. This adds weight to the point already made – we only have a part of the picture, here. That said, I admit to thinking it would have been advisable to make that known in the programme itself rather than aftewards because we now  have police and paramedics guessing without relevant facts as to whether this murky area of law was correctly applied or not.


IMG_0053IMG_0052Winner of the President’s Medal from
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.