Once More Unto The Breach!

Police officers have no legal powers of detention or coercion in private premises, unless a criminal offence is attempted or a breach of the peace anticipated.  The Government review of ss135/6 of the Mental Health Act 1983 which was published in December made it clear that there are no plans to reform this aspect of the law – it’s exactly as your government want it with no unilateral role for the police to manage mental health emergencies in private premises.  So making the police into a de facto contingency plan to contain a situation and ensure safety in the short term, is likely to fail, unless the circumstances involve a criminal offence or a breach of the peace.  It could be argued that it’s therefore fairly short-sighted to rely upon this as contingency, especially where the police have no idea they’ve been set up to fail in advance of a call coming in.

Even our frequent reliance upon the fourteenth century common law Breach of the Peace power is now constrained by twenty-first century human rights law.  We learned last year that you cannot invoke powers to apprehend a Breach of the Peace unless you intend to bring the person before a Magistrate.  Although this Court of Appeal ruling is now pending a further appeal to the Supreme Court, it is the law of England and Wales as of March 2015 until any higher court ruling says otherwise.

CONTINGENCY PLANNING

So imagine a situation in which a young man, legally still a child, is in need of inpatient admission but there is no immediately available bed – we’ve heard many stories in the last few months that start exactly like this, haven’t we?!  Imagine that such a bed will be available tomorrow morning so an agreement has been brokered with the young man’s family that he will be supported overnight by his parents and that if there are any particular problems, the police should be called.

To do what, precisely?! … let’s come back to that.

So the AMHP walks away having arranged the admission, the bridging plan to get through the night with ongoing parental support and their police-led contingency plan despite the police  being quite unaware of the plan in place that now involves them.  The police are therefore quite unaware of what else may have been done via any other part of the health and social care system, like the NHS, EDT or any Crisis Team.  The officers would not be aware of the precise circumstances, the background details, any identified risk issues that may be relevant to them keeping everyone safe and they are certainly unaware of what, if any, legal framework may now exist that might plug a gap in their own ability to act, given the ordinary powers of the police.

What do we want these officers to do, exactly?! … we’ll leave the issue of what they think they’re expected to do.

If they knew, for example, that an application to hospital had been made, they may be able to establish that the patient could be detained and conveyed under s6 to the relevant hospital, in extremis.  Of course, it may not be ideal that they turn up early at the hospital, but it’s not ideal that they are being called at all.  Maybe the officers could remain briefly at the hospital to assist in improvising some arrangement or other that helps keep the lad safe until he could be admitted?  But without knowledge of this, they are dealing with a young man in a house, who is non-specifically agitated and distressed and without any relevant legal powers.  So they are being placed in an invidious position: unable to act, but no entirely responsible for a safe and humane outcome because parents will probably expect this, having been assured that calling police officers is the right thing to do.

So what we want them to do, specifically … is to have them put their arm in a legal mangle and be responsible for a situation they didn’t make, which Parliament wants them nowhere near and which is liable to see supposed police failures front any centre of any untoward outcome.

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The Mental Health Cop blog

Badgewon the ConnectedCOPS ‘Top Cop’ Award for leveraging social media in policing.
won the Digital Media Award from the UK’s leading mental health charity, Mind
– won a World of Mentalists #TWIMAward for the best in mental health blogs

ccawards2013 was highlighted by the Independent Commission on Policing & Mental Health
– was referenced in the UK Parliamentary debate on Policing & Mental Health
was commended by the Home Affairs Select Committee of the UK Parliament.

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The Blue Light Project

Today sees the formal launch in London of the Blue Light Project, led by Mind and it has been a real privilege that they asked me to be a small part of their external advisory board, contributing to the development of the project which uses £4m of LIBOR money (fines levied on banks for manipulating financial markets) to support the mental health and wellbeing of our 999 emergency services personnel.

First, I’d ask you to watch this video from Time to Change —

 

AIMS OF THE PROJECT

  • An anti-stigma campaign, working together with Time to Change, and guidance for employers to improve the way they support their staff
  • A bespoke mental health training package for managers as well as frontline staff and volunteers across the emergency services
  • A pilot approach to build the mental health resilience of emergency services staff and volunteers
  • An information helpline and resources just for emergency service staff and volunteers, and their families.

You need to have a think about this if you haven’t already – we ask very ordinary men and women to deal with some very extraordinary things.  Some of the most difficult, harrowing and devastating things that happen in society, often running torwards the danger the rest of us are fleeing and often improvising through problems we hadn’t planned for or trained for.  Many of the situations our emergency service personnel are dealing with arise from failures by others to take reasonable or necessary steps that would have prevented those situations from occuring in the first place – in that sense there is a futility to much of what we ask them to do.  They do these jobs having made a choice, of course – and they are trained for their role, but training does not and cannot cover everything.  It certainly can’t always prepare you for your reaction to the things you experience or how you manage such a demanding job alongside the rest of life on earth with all of its tribulations.

Training certainly didn’t prepare me for the stress of working in an organisation like the police – for what it would feel like to watch a man with serious mental health problems burn to death after he set himself on fire in front of me; or to watch another man bleed to death in my arms after he’d been stabbed by his girlfriend’s ex-boyfriend with her right next to us both pleading for me to save his life and me knowing I couldn’t.  I could go on but I won’t because there’s nothing special about my list: every police officer, every paramedic and every firefighter has their list, in addition to our colleagues from search and rescue.

Forgive me for any over focus on the police: it’s simply what I know best — suicide disporportionately affects men who account for 75% of such deaths and policing is still, numerically speaking, a male dominated occupation.  High risk groups for suicide are known to be men in early adulthood and men in the 40-50 age bracket.  We also know that policing, in addition to the other emergency services, is a high risk occupation with higher than average levels of clinically significant distress.   Only this week we read about the suicide of Craig PLEDGER – a young police officer who played rugby for his force and who was found dead near his family home in Cornwall after battling depression for some years.  A totally tragic loss and my heart goes out to Craig’s family and colleagues.   In the last week I have given several presentations on policing and mental health to police audiences as part of my role at the College of Policing.  Without exception, the questions that followed were focussed on internal, staff wellbeing related questions.  There is huge appetite for the things that this project aims to achieve so I want emergency services personnel to hunk about what they can add to this, individually.

WHAT CAN YOU DO?

Ask your local senior managers if your organisation is signed up to the Time to Change pledge, about which Chief Constable Simon COLE (Leicestershire) spoke at the project launch, this morning.  Speak to your staff association about their support for the project – internal relationships between officers, line managers and local managers are key to setting organisational cultures which foster positive environments and we know that 999 staff who lose days at work to mental and psychological problems cite their relationship with the manager as being at least a part of the problem – it’s not all about the work we do, it can be about the place we work.

Line managers can make sure they take time to talk about the stress of the role, to understand the lives of staff they manage and pressures they can be under outside work that may affect them.  It’s like Time to Change highlighted on the #TimetoTalk day in February – 5 minutes spent discussing something early can create the environment people need to raise problems.  Finally, something that really stuck with me after listening to a police officer who had time off work with depression:  her sergeant had assumed that because she was depressed and experiencing stress related pressure, time off work meant that she needed a complete break from things and he directed her colleagues to give her some space whilst she was off.  The isolation that inflicted upon her, without colleagues texting or asking if she fancied meeting for a coffee, compounded her problems and made things more difficult.

So none of us should feel entitled to assume what we think other people might want or need: it’s Time to Talk about who is supporting and caring for those who spend their lives supporting and caring for us when we most urgently need it.

Please support this project and raise awareness of it in any way that you can.

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The Mental Health Cop blog

Badgewon the ConnectedCOPS ‘Top Cop’ Award for leveraging social media in policing.
won the Digital Media Award from the UK’s leading mental health charity, Mind
– won a World of Mentalists #TWIMAward for the best in mental health blogs

ccawards2013 was highlighted by the Independent Commission on Policing & Mental Health
– was referenced in the UK Parliamentary debate on Policing & Mental Health
was commended by the Home Affairs Select Committee of the UK Parliament.

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Sectioned

This is one of those posts I’ve done before but I’m now writing again in a different way because the situation just keeps on happening.  In the last weeks and months I’ve heard police officers say countless times that someone had become ‘sectioned’ when they absolutely had not!  This would rarely be a grave matter, except where this misunderstanding is then the basis for what are sometimes protracted, illegal detentions in custody —

  • When some enters custody and detention is authorised, they remain in custody subject to the timescales and caveats of their original grounds for detention until any Mental Health Act application is made.
  • Someone becomes ‘sectioned’ (informal language, not a legal term) when an application is made to the hospital for their admission under whichever section of the Act is relevant, usually s2, 3 but it could less occasionally be s4.
  • Strictly speaking, the person is not even ‘sectioned’ at that point – they are actually just ‘liable to be detained’ and they become ‘sectioned’ when they’re are accepted as an inpatient on arrival at that hospital.
  • So if the were originally arrested for a crime, you have 24hrs to hold them, then you must charge the person or release them, unless an Appeoved Mental Health Professional’s application gives you new grounds on which to hold someone.
  • If the person was originally detained in custody as a Place of Safety, you have 72hrs in which to make any necessary arrangements for that person’s treatment of care.  After that, they must be released unless new grounds are provided by which to detain someone.

So what happens if you reach the 24hr or 72hr time limits and there is no application for admission?  Well, strictly speaking, you must restore the detainee’s liberty and a failure to do so gets you directly into Article 5 ECHR territory – detained quite arbitrarily in a process not prescribed by law.  Of course, even within legal timescales for detention, there could be other ECHR issues – as we saw in the Article 3 case, MS v UK (2012).

AN INVIDIOUS DECISION

So do you release a vulnerable person who is, by definition an obvious risk to themselves or others, or do you keep them detained pending the eventual making of an application?  Well, the situation should not come about in the first place.  So there are two things to say —

1. What should have happened?

Clinical Commissioning Groups are responsible for ensuring adequate health provision for their areas and this includes commissioning sufficient inpatient beds for admissions to occur in a timely way.  NHS England is responsible for commissioning more specialist beds like CAMHS and adult forensic services.  Their duties to do so extend to having civil contingencies around the management of these important resources and section 140 makes it clear that CCGs have a legal duty to specifiy hospitals that are in a position, from time to time, to receive patients in circumstances of special urgency and those designated to receive children. (Interesting that s140 doesn’t mention NHS England’s commissioning responsibilities.)

So old advice use to be: if you need to make an application and can’t immediately find a bed, go to the list provided under s140 and take it from there.  Unfortunately for us all, I found out when I made about three dozen Freedom of Information applications for CCG s140 lists that they had all failed in their duty to comply with this requirement.  Section 140 was totally unmentioned by the MHA Code of Practice (2008) and by the accompanying Reference Guide but has now started to emerge, in the new Code (2015) and in CQC MHA reports.

2. How do we manage this when it happens?

Firstly, flag up the potential for this situation to duty inspectors, the AMHP and the first-assessing DR as soon as it looks likely to occur. Point out the legal constraints to your ability to lawfully detain.  Flag it up again when it actually occurs and ask for an application to be made or the invidious decision must be taken.  Remind the AMHP and DR about the s13 criteria that determine that applications ‘shall’ be made and the duty of CCGs under s140.  Document all of this.

You then have to decide! – in circumstances not of your making, you become responsible but you need to know at this point about section 139 MHA.  This section basically protects people from legal liability for any actions they’ve done “in pursuance of an objective under the Act” as long as they’ve done it in good faith and with reasonable care.  So if you start relentlessly challenging and escalating to senior police officers and health managers, you will have some wriggle room.  Document all of this!

In one case back in 2004, Greater Manchester Police took their challenge on this issue to court, seeking a Judicial Review in the High Court of alleged failures by the AMHP / DR and wider NHS.  Oddly enough, the found a bed quite quickly when legal action was about to start.  Police officers have a positive duty to ensure the European Convention rights of those in their custody and we are very used, professionally speaking, to handling situations in which people break laws. Don’t let yourself be fooled into viewing this situation as anything else, it’s just that these laws are enforced in a different way, if they do need enforcing.  Document all of this!!

FINALLY!

Then! – record this as a Health & Safety ‘near miss’ and ask that it be referred to whichever oversight group reviews the joint police / mental health trust protocols and ask that CCG commissioners be invited to that review.

But remember this: no-one is ‘sectioned’ or liable to be detained until that AMHP makes that application to a hospital and any detention up to the point where that is done has to be justifiable under PACE or s136 and subject to the ECHR.

Hold The Line!