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Twenty Seventeen

Some thoughts ahead of the New Year, after sitting recently and wondering where on earth we’ll be with things by Christmas 2017! —

THE BOSS

Firstly, Commander Christine JONES QPM, the National Police Chief’s Council lead on mental health will be retiring in early 2017 after a distinguished career. She has been the NPCC lead on mental health for the last four years and was a driving force behind the creation of the Crisis Care Concordat which was published in 2014. A fierce supporter of the operational officers who face and take tough decisions every day, often whilst finding themselves in far-from-ideal contexts, I know that she has challenged partner organisations around the extent to which commissioning and fragmentation in health contributes to the extent to which the police service is called upon. What some perhaps haven’t seen is how challenging she is within the service to improve the leadership, oversight and knowledge of the detail around this area.

I remember in 2013 being asked to assist Kent Police with their early work around mental health and they asked me to speak in their lecture theatre to a group of senior and operational officers as well as partners. At the last moment they told me that Commander JONES was attending to listen and it’s one of those rare occasions I suddenly became very nervous indeed! Those who know me well know I just keep my mouth shut rather than say stuff I don’t believe: I think Commander JONES has led us exceptionally well – she’s been a passionate advocate for vulnerable people and for frontline police officers, often saying the things I know many people were only thinking and I’ve watched her standing up to senior healthcare professionals and politicians alike, challenging assumptions and saying things they didn’t always enjoy hearing.

I’m especially grateful for the support she’s afforded me personally, in terms of arguing for my secondment to the College of Policing and in encouraging and supporting me to keep chipping away at issues when she knew I was taking flak. I’ll always be grateful for that, because when you feel like you’re one of the few in a room saying certain things, it’s helpful to have such backing from someone who really understands these agenda.

I wish the Boss nothing but the very best for the future – it’s genuinely been a proper privilege.

NEW LEADERSHIP

Therefore secondly, you should be aware that the NPCC lead on mental health transfers in late January to Chief Constable Mark COLLINS, of Dyfed-Powys Police. Mr COLLINS has already met Commander JONES to start the process of handing over and I’ve already sent him a couple of pages of A4 outlining some headlines that I would recommend he looks at. Top amongst them are the initiatives which fall under the name ‘liaison and diversion’ and ‘street triage’ – there is still more to be understood on both of those issues; from better understanding and defining the concepts through to more thorough research and evaluation of things that go beyond the supposed benefits to the health system.

Mr COLLINS takes over the national lead at a point where forces will be starting to deliver training to officers based on the College of Policing packages that we’ve spent two years developing; he takes over as demand on the police connected to mental health is rising quite sharply but at a point where we still know the overall data we have to understanding that demand and the particular problems is not as comprehensive as it needs to be.

I think it’s great that the lead will transfer to Wales – land of my grandfather(!) and where I studied criminology – because there is plenty of work to do there and the devolved political system for health in Wales, but not for policing, provides a slightly different dynamic to things. Wales published a Crisis Care Condordat at the end of 2015 and are just adjusting to introduction of a new Code of Practice for Wales, which took effect in October 2016. Obviously, Mr COLLINS’s responsibilities for NPCC will cover both England and Wales and as he’s worked at senior level in both countries and overseen various developments around mental health in his last force – he seems ideally placed to lead on this and very keen to become involved.

FORTHCOMING HIGHLIGHTS

Keep your eyes open next year: we’re going to see various things worth watching! This will include –

  • The Angiolini Report – a review ordered by the Prime Minister in to deaths in police custody will be published early next year. We know that mental health will be one of several important areas of focus and I’m keen to read it, having met with the review team to discuss these matters.
  • The Policing and Crime Bill – once this becomes an Act of Parliament, it will be introduced in the Spring and will reduce the use of police cells as a Place of Safety, limiting the time someone can be detained. I know some areas of the country are worried about their ability to work within these new frameworks, but laws being what they are, they’re going to have to find a way.
  • New Regulations – the Policing and Crime Bill does not make explicit the ‘exceptional circumstances’ in which police cells can be used as Place of Safety under the MHA: these will emerge in the first quarter of next year and discussion can start about how to give effect to those regulations, given that there doesn’t seem to be a settled, agreed answer about when the use of police cells is acceptable.
  • Health Guidelines – the National Collaboration Centre for Mental Health and the National Institute of Health and Care Excellence (NICE) will each publish new documents about commissioning standards for emergency and crisis mental health care; and mental health in the criminal justice system.
  • Restraint Guidelines – the Expert Reference Group chaired by Lord CARLILE will publish it’s first Memorandum of Understanding on police-related restraint in mental health settings in early 2017. It will essentially remind us of the obvious: restrictive healthcare interventions are a matter for the NHS; crime and mitigating unforseeable serious risks can involve th police. Everything else is about managing the gaps and overlaps.
  • Coroners’ Inquests – at least two high-profile deaths in custody related to mental health matters. I suspect we’ll be told again to learn lessons that have already been highlighted in previous high-profile tragedies.
  • IPCC Inquiries – at least another two high-profile inquiries relating to mental health that should be finalised.
  • Criminal Trials – there are two trials due where police officers are accused criminal offences connected to deaths following custody or contact. This is as serious as it gets and the justice system take its course – regardless of outcomes, there will be things we can learn here. It’s important that we do.

MOVE THINGS FORWARD

Finally, some news affecting me amidst all of this! – I am totally chuffed to have been invited by Mr COLLINS to work as his mental health coordinator on his NPCC portfolio for the next couple of years. My secondment at the College of Policing was due up at the end of March anyway and I had started discussions with West Midlands Police about an operational posting for April 2017. Whilst I do intend to end my career in an operational police role I still have at least twelve years left to serve so I’m delighted to be given a chance to keep chipping away at this agenda around mental health when there is still so much left to do. 

In fairness, evidence shows that demand on policing connected to mental health is rising – up at least 26% over the last three years – and I’m grateful to West Midlands Police for still affording me the opportunity to push this agenda. So from April 2017, I will be seconded to NPCC via Dyfed-Powys Police working directly to Mr COLLINS, albeit 25% funded by the College of Policing so I can continue to support the work they will need to undertake to keep APP and training materials up to date, in light of all of the above.

I hope you all had a Merry Christmas, that those emergency and health services workers who worked didn’t take too much of a bending and that you all have some chance to enjoy some time with family or friends – Happy New Year!


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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A Theory of Stuff

I had a recent conversation about a policing and mental health issue, relating to the role the police may play on inpatient psychiatric wards where nursing staff are seeking support for some restrictive intervention under the MHA. In passing summary of the relevant legal issues at play during such requests, I said, “It’s the responsibility of healthcare providers to plan and prepare to mitigate foreseeable risks connected with their activities; and it is the role of the officers to investigate allegations of crime and to respond to serious risks which arise from unforeseen circumstances which have gone awry to the point where safety is seriously compromised.”

This has become more or less my standard summary of the work we’ve been doing under the chairmanship of Lord CARLILE CBE QC, which should emerge early next year. I usually add one further point: “Where the police do attend because of unforeseen or more serious risks, it is their role to create safe conditions within which healthcare staff can re-take control of the restrictive intervention unless it needs to become a criminal justice intervention, for example by arresting someone.” In other words, because MH staff may want to administer medication, this does not mean it is the role of the police to assist in that process just because a ward is not able to do so. If it were a matter of life and death, then the law would probably would allow for the police to support this process, but it often isn’t quite so serious.

The recent conversation revealed disquiet at this statement. Surely if a patient needs medication and the ward cannot muster enough staff to administer it, it falls to the police to help, right?  No. Let me give a real example to show why.

CAN YOU IMAGINE?

Imagine a 999 call where a patient is ‘smashing up the ward’, with demands for urgent help. The police arrive to find a group of nurses and a doctor holding a patient in a small room off the ward, physically leaning on the door to stop the person from leaving. There is shouting coming from within and through a small observation panel, it is obvious the patient is highly agitated and distressed. The first police officer to arrive is the duty sergeant – concerned he is on his own, the staff immediately shout, “You need more officers, get more officers!” and the sergeant explains that two constables are just arriving and will be here within a minute. The doctor explains that staff have attempted to persuade the patient to receive medication over a long period and it has all failed. She is a s2 MHA patient and they have taken the decision to administer medication without the patient’s consent. They ask the three male police officers to enter the room, take hold of her and place her in a prone position so her trousers and underwear can be pulled down and an injection given.

Meanwhile, the patient is pacing around room and hitting the walls, but not causing any damage. Prior to police arrival, some damage has been caused on the ward, but that cannot now be undamaged by anything the police do or don’t do and nothing more is at risk as the patient is contained in a side room.

Can you imagine the furore if three male police officers forced a vulnerable woman to the ground and pulled down her underwear in any other context? – imagine if we learned that had taken place in police custody, even at the direction of an FME for some medical reason or other?! If it didn’t make the mainstream media as an outrage, it would probably still make the Professional Standards Department and / or the IPCC as a complaint and police officers have been disciplined for less. Why such urgency to have three male officers, partially strip a female patient? – she’s now in a room, contained and not causing herself any further harm in the short-term. The damage is now history, it needs repairing and there can be a criminal investigation in to that if anyone is alleging it should be considered for a prosecution. But in terms of the immediacy of entering the room to undertake a restrictive intervention to administer medication – there is no obvious immediacy (or at least, none was being made clear) such that the dignity of the patientneeded to be compromised in this way.

THE ROLE OF THE POLICE

This is what we’re getting at when we discuss the role of the police, not just within inpatient settings, but more generally – how do we frame some broad principles which would allow officers to understand how to judge their role in any mental health related incident; how do whole police forces understand how to judge their role when framing policies and procedures? I’ve recently spent a lot of time around the country, talking to forces in order to help their learning and development staff understand the legal material within the College of Policing’s Authorised Professional Practice (APP – guidelines, to you and me) and to prepare for the reality of standing in front of a room full of operational officers to deliver the training. Of course, the complexity and difficulty of this topic is reflected in the almost-700 posts on this BLOG and in outlining how the College of Policing are asking forces to approach this topic, I have outlined what I would say is a theory of policing and mental health.

This is not an attempt to sound grandiose, but to use the word ‘theory’ in its scientific sense: the explanation we offer to what we (think we) know from the world around us. Scientists throughout history have observed the world around them and sought to explain it with reference to theories that take account of those observations and the results from their work. If you find a persistently troubling fact that disturbs your theory, you have to refine the theory by changing the explanation, not insist that the troubling information can be dismissed. So the theory used to be that the sun and moon revolved around the earth and various people including Copernicus suggested otherwise. This alternative was eventually proved, in the sense that the best explanations for what we know is that the original theory was only half right: the moon does revolve around the earth, but the earth around the sun.

So in policing and mental health, how do we explain the role of the police? Well, you take all of what we (think we) know and provide an overall explanation that fits.  Things like —

  • We know, legally speaking, the police have no Mental Health Act powers in patients’ homes, yet we also know that most of the crisis incidents the police attend are in exactly those locations. Many such incidents can be professionally resolved without resort to legal powers but where they do become necessary to keep people safe, this cannot be for the police alone, because we don’t have powers that others do posses. To suggest that it can always rely on the police, is to miss both the legal thing and the policy thing we know or to fail to take them in to account.
  • We know mental health crisis presentations where patients are so distressed and frightened that they exhibit very resistant and aggressive behaviours, can be attributable to underlying medical emergencies. We know that any restraint thought necessary can exacerbate that situation and medical guidelines exist in relation to this: so any suggestion that people presenting in such must be taken to police custody and until they ‘calm down’ or specialist inpatient beds are available is to miss that thing we know about medical and restraint risks.
  • We know that 30 cases of assault on NHS staff have been privately prosecuted in the criminal courts by NHS Protect after the police and / or CPS declined to do so – this is why officers who say, “We can’t prosecute a s3 patient who punches a nurse” is not explaining that professional issue in a way that survives contact with what we know, because NHS Protect won all thirty of their cases. To suggest that inpatients in mental health units cannot be prosecuted is to miss that thing we know, about the history of criminal allegations from inpatient mental health settings.
  • We know the mere fact of police involvement in a mental health or crisis response can be criminalising and frightening for some patients involved. That may even be because caring, empathetic officers had limited options available and had to do something regrettable, like detaining someone. To think the police can always be a reassuring presence when someone is in crisis, is to miss that thing we know about human beings all being unique, sometimes frightened and with different needs; and police officers being police officers, they don’t always have the skills or the options.

A THEORY OF STUFF

So look around you: see the legal frameworks we have in this country and the international frameworks we’ve brought in to our domestic law; see the various judgments of the courts in civil, criminal and human rights cases; look at the medical, nursing and care guidelines; read the books that academics and professionals have written; look at the way the police fit in to that wider system of 999 and of emergency mental health care; but most importantly – listen to what patients say about their needs and about the role of the police; read what they say on social media about how the world revolves for them.

Then, you can start working out how to structure a wider social response to those of us with mental health problems which must involved the police to some degree – mental health is core police business. But by better understanding those things, you’ll see where the police fit in to that wider response … and where they don’t.

For what it’s worth, about twelve years in to my efforts to do so, this is where my head is: if you disagree, please do so in the comments below as I’d enjoy discussing it –

  • The police should be as uninvolved as possible in providing responses to mental health crisis care incidents – this is not to argue there is no role for the police: mental health is core police business, but not all crisis events are predictable or preventable and some will require the skills and legal powers that only police officers possess. This is about wanting to minimise the potential that police officers will unwittingly criminalise people; and inadvertently provide the wrong response to the circumstances, despite their best efforts.
  • The police should ensure a more consistent response to crime involving those of us with mental health problems – living with mental health problems means we are more likely to be victims of crime;  we are more likely to suffer criminal justice ‘attrition’ with our cases not being taken forward; and we need much greater consistency of whether we prosecute a vulnerable suspect or divert them from the justice system, especially where the offence is alleged to have occured against healthcare staff in a clinical environment.

Whatever specifics I’ve learned over the last twelve years – legal material, medical guidelines, Coroner’s outcomes, IPCC inquiries, etc., etc.; – all of that feeds in to those two conclusions. Every time I read a new case, study a new report or think about the various lessons that we’ve been told we must learn, I re-test whether these two things stand up to what we know about how the courts and lawyers say we can act; and to how healthcare professionals say we best serve those of us in distress. Every time I hear of initiatives that go against these ideas, I wonder whether that means we end up going in to conflict with things we know about the real world: and I invariably find we do.

We need to remain open minded about how we make the world a better place; and we need to ensure we ask questions when new information arises – does this information reinforce this working theory or do we need to re-think our overall approach in light of this new information? Then, in the end, it comes down to what we’re trying to achieve. I suspect that’s where some of next year’s conversation needs to focus but we need to find the best explanation for now about what we know whilst acknowledging we always need to know more.


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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When Time Stands Still

When does the ‘clock’ start ticking, after someone is detained under s136 or s135(1) of the Mental Health Act? Straight-forward enough type of question: under the Police and Criminal Evidence Act 1984, the ‘relevant time’ is subject to considerable explanation, for the avoidance of any doubt. When you are arrested for an offence the police may detain you for 24hrs before deciding whether to charge you or not and this is calculated as 24hrs after you arrive at the first police station you are taken in the force where the offence is under investigation; or 24hrs after your arrest, whichever is sooner.

What about s136 and s135(1) MHA? – nobody seems to know!

This hasn’t massively mattered in the past, because each of these two provisions allows for someone to be detained for up to 72hrs in order to ensure they are assessed by a DR and an AMHP and for the making of any arrangements for that person’s treatment or care. It is rare, although not unknown, for someone to spend as much as 72hrs in a Place of Safety for these purposes. But in (roughly) April of next year, the Policing and Crime Bill will have become an Act of Parliament and this 72hr figure will be changed to 24hrs. There will be just 24hrs to arrange an assessment by an AMHP and a DR and to then arrange for inpatient admission in many of those cases.

Over the last years and decades we’ve seen the number of inpatient psychiatric beds in England and Wales diminish significantly during a time when the overall number of detentions under the MHA has been rising significantly. Recent figures from NHS Digital outline for the first time, the number of MHA admissions has exceeded 60,000 – I remember only three years ago, when massive concern was voiced the figure had initially exceeded 50,000! So whilst MH services are somehow having to figure out how to fit ever more admissions in to ever fewer beds, the use of s136 is rising significantly: to over 28,000 this year, compared to around 18,000 a decade ago. We also know it can be difficult to find inpatient beds in a timely way – especially specialist beds for children, those requiring intensive care or secure services. This will only get more difficult if there is less time, legally speaking, in which to find them.

So this issue of the ‘clock’ becomes important, because we need to know exactly how restricted we are, if someone needs admission after being detained by the police under the Mental Health Act.

THE PoS ‘CLOCK’

It’s fairly easy to work out when the 72hrs begins if someone is taken to a mental health unit Place of Safety or a police station – it is calculated from the time of arrival, because s136(2) MHA makes it clear “they may be detained there for up to 72hrs”. It usually gets confusing when Emergency Departments become involved and this is made manifest in the two views expressed in the English and Welsh Codes of Practice to the Mental Health Act 1983.  Because Wales has devolved political responsibility for health matters to the Welsh Assembly Government, they issue their own Code of Practice for Wales and separate Codes were first issued in 2008. The English updated theirs in 2015 and a new Code for Wales was published in October 2016.  From a policing point of view, the most recent Codes simplified things for policing as there are now far more similarities between the two documents than there were after the 2008 updates.

However, on this point of the ‘clock’, they appear to just flatly contradict each other!  In the English Code of Practice (2015), it states (in paragraph 16.26) –

“The maximum period a person may be detained under section 136 is 72 hours. In practice, detentions should not need to be this long. The imposition of consecutive periods of detention under section 136 is unlawful. The maximum 72-hour period begins at the time of arrival at the first place of safety (including if the person needs to be transferred between places of safety).”

In the Code of Practice for Wales (2016) it states (in paragraph 16.46) –

“If, in exceptional circumstances, a police officer needs to take a person to an emergency department after detaining that person under section 136, for the emergency medical assessment or treatment of their physical health this should not be treated as an admission to a place of safety. Detention under section 136 will begin when the person is taken to the appropriate place of safety for the assessment of their mental health.”

There are various things to get picky about and I usually find it can be helpful to get picky. You may already be thinking that my bold emphasis in the Welsh Code is wrong: detention begins when someone gets detained! – you can’t have a situation where you are detained in a street but are somehow not yet detained, until the detention you have experienced takes you to a particular mental health unit, via an ED department. I’ve deliberately complicated that explanation to highlight how ridiculous it is – detention is not a legal phrase in this context, it is just a word that has an ordinary English (or Welsh!) meaning. You can either walk away from that officer, or you can’t because they’ve detained you; and none of this is relevant to the ‘clock’, because s136(2) makes it obvious that the time from detention to arrival at a PoS is not counted.

If you still want to be picky, you’ll may ask yourself, “Is ED a Place of Safety?” … the English Code is saying that the ‘clock’ begins when the person arrives at a PoS … so is ED a PoS; or not?! Well, there are a few arguments about that, too – the police power, once used, is to remove someone to a PoS and s135(6) defines hospitals as a Place of Safety under the Act.  It makes no distinction between EDs and other kinds of hospital, it makes no reference to that status as a PoS being subject to any designation or to any agreement on the part of the hospital. By way of analogy, only certain police stations would be used as a PoS, usually those designated for receiving detainees and holding them for 24hrs (or more in certain circumstances). But if a rural officer did remove someone to a local police station and use the front office interview room as a temporary place to hold someone, they have been removed to a police station, which is also in s135(6), so s136(2) kicks in, arguably.

THE LAW IS THE LAW

Of course, one point broader legal point is: it’s not for Codes of Practice to define the law itself, that is already done in the Act of Parliament. As one notable mental health lawyer once said to me, “Nothing in a Code of Practice will make lawful something that is unlawful under the Act – and vice versa,” So a Code of Practice can say what it likes: it won’t alter the law of England or Wales if the Act makes the point clear.

So what does the Mental Health Act 1983 actually say?! –

It says that police officers who are satisfied the criteria are met in s136(1) may detain the person “and remove them to a Place of Safety”. In s136(2) it makes it clear that where somebody has been removed to a PoS, “they may be detained there for up to 72hrs” etc.; this will reduce to 24hrs next year. Place of Safety is defined in s135(6) and includes “hospital” in the definition and most importantly: it is often the case that when someone enters the ED department, no-one can say with any confidence whatsoever whether that person will leave ED during the time that s136 remains in play.  If we cannot be certain what function the ED will play, how can we confidently say at the point of arrival that it is only acting as a place to receive assessment or treatment of their physical health. What if the patient being detained there lacks the capacity to take decisions about their physical healthcare treatment and what if those problems are associated with mental health problems to the extent that treatment could be given under the MHA?

I can think of at least a few scenarios –

  • A person is thought by officers to have a mental disorder, is detained under s136 but paramedics advise that something else appears to be wrong and assessment in ED is required. If assessment requires a more prolonged stay in ED or even admission to the acute hospital, what does this mean for the ‘clock’? – examples have included patients who turned out to have meningitis, brain tumours or patients who attempted to overdose where it took 12hrs or more to run blood test and ensure treatment.
  • Someone was removed to ED under s136 but the legal process concluded before they were able to leave that hospital; or the 72hrs even ran out! – this has been known to happen with overdose cases where assessment and treatment can lead to admission lasting several days.
  • There are problems with accessing any other kind of PoS after initial removal to ED – sometimes, MH unit PoS facilities are full at the point where you might hope to transfer the person and occasionally, police custody sergeants may decline to accept a s136 transfer from hospital; and they are legally quite entitled to do so. It may simply not be possible to move the person.

What the Welsh Code of Practice seems to be saying, is that someone who is detained by the police in Cardiff, having taken an overdose, can be taken to ED and spend 24hrs or more detained against their will whilst doctors assess their condition and offer treatment, only then to be taken to a health-based Place of Safety where a further three-day detention period can be relied upon. It means, in theory, the overall maximum period of detention is limitless because no amount of time in ED for physical care counts. Do we presume four days of detention would be OK? … or five, or six?!

YOU CAN’T BOTH BE RIGHT

Of course the most obvious point is, these two things can’t both be right, unless you accept the argument that ED departments, despite being ‘hospitals’ and despite no-one being certain about how and to what extent ED will be used in any given situation, can divorce itself from the notion that it can act as a Place of Safety under the Mental Health Act and that in most areas it occasionally will need to do so.  The English Code gives one answer; the Welsh Code gives another – the answer is actually in s136(2) itself, which makes it clear that the time commences when someone arrives at the Place of Safety they are taken to. Hospitals are a PoS under the Act and no-one can truly know what will happen to any particular patient’s journey at the point where they first arrive at an ED.

Finally, there’s the practical point that if you adhere to the viewpoint given in the English Code, you are never going to found wanting, legally speaking. If you follow the advice in the Welsh Code, you could end up finding it difficult to defend a detention that exceeded the maximum time permitted. It’s all the more likely the maximum will be exceeded after April of next year as AMHPs struggle to secure beds for admissions after use of s136.  (Not connected to my main point: but there will be provision to extend the new 24hrs maximum up to 36hrs in some circumstances, but it still represents a halving of the available time!)

I’m guessing and hoping the Department of Health and Welsh Assembly Government will be issuing new Codes of Practice in 2017, less than a year or two after having updating the 2008 editions – the Policing and Crime Act 2017, as I suspect it will be called, will change several aspects of the police’s powers under the MHA. It would be great if they could clear this up for us all so we actually know what the law is and what is expected of us when we subject the public to the operation of these powers!


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

Winner of the Mind Digital Media Award.