Missing The Point

Yesterday, Her Majesty’s Chief Inspector of Constabulary, Sir Tom Winsor said something extremely important in his annual review, known as the “State of Policing” report.  The main headline from the document was his argument that the police are now filling gaps in mental health services and that this represents a drain on resources which are being diverted from other policing responsibilities. It was his clear view that “the provision of mental healthcare has reached such a state of severity that police are often being used to fill the gaps.” He makes the point that the police “have often been used as the service of last resort. In some areas, particular where people with mental health problems need urgent help, the police are increasingly being used as the service of first resort.” He goes on, “We are still finding cases of mentally ill people – who have not committed any crime – spending the night in a police cell. This is because they are too vulnerable to be left alone but there is no bed for them in a healthcare facility. The provision of mental healthcare has reached such a state of severity that the police are being used to fill the gaps that other agencies cannot. This is an unacceptable drain on police resources and it is a profoundly improper way to treat vulnerable people who need care and help, not incarceration among criminals.”

He makes a comparison for mental health care with the police approach to crime prevention, “It is far cheaper to prevent a crime than it is to investigate and arrest the offender after the event.  The same is true of mental ill-health, which is not a crime.  It is an old adage that an ounce of prevention is better than a pound of cure and this is particularly true when the cure fails and an emergency intervention is required to protect the safety of an individual in distress and, often, people nearby.  By the time depression or some other mental disorder has been allowed to advance to the point that someone is contemplating suicide, or engaging in very hazardous behaviour, many opportunities to intervene will have been missed by many organisations. When that intervention takes place on a motorway bridge or railway line, or when someone is holding a weapon in a state of high distress, the expense to all concerned is far higher than it should be.  The principal sufferer is the person who is ill, especially when it is realised that his of her suffering could have been much less or even avoided altogether.”

I’m sorry to keep going, but his words are well worth reading, “There is the economic cost in terms of the expenditure of time and effort by the police and other public services, as well as the expense and trauma sustained by those adversely affected by the crisis at the time.  The economic arguments for earlier intervention intensify the health and moral ones ready in play. Furthermore, research, carried by Ipsos MORI for HMIC, shows that only two percent of people think that the police has the greatest for responsibility for the safety of people with mental ill-health or learning difficulties. With an estimate one in ten young people having a mental health problem, this is not a matter for the police alone. The inadequacy of mental health provision and the lack of parity with physical health provision in this country should disturb everyone. It should never be the case that someone who requires treaetment, for any condition, should become the responsibility of the police simply because other agencies do not have the resources to act.”

FIFTEEN YEARS

I did not know this report was coming out until it was published and I started to receive media enquiries about whether the College of Policing would allow me to be interviewed (listen from 19:55). Having downloaded the report, abandoned a colleague I was having lunch with to read it on a Tube on the way to a BBC studio, I couldn’t help but smile and shout “Yes!” to myself as I travelled down the Victoria Line in London. After tweeting the report, my reaction was to add, “I’ve been saying this for fifteen years – glad to see everyone’s catching up!” And this links to the way I’ve been recently summarising where we are with things now. We can talk all day and night about various things that have gone wrong in policing and mental health, up to and including controversial deaths in custody following restraint. When we do, we tend to find people saying “the police need more mental health training” and “the police need to work in real time collaboration with mental health services”.

Well, Sir Tom’s intervention doesn’t address either of those things, specifically – it goes far more directly to the real heart of the problem, to his credit: a problem I’ve flagged for many years now. Neither intervention even begins to address why we now rely so heavily on the police as part of our model of healthcare – what is driving people towards the police in the first place?! Professor Louis Appleby (former government tsar on mental health and criminal justice) was quite quick to dismiss the HMCIC’s assessment, tweeting –

Again, this misses the point being made. Positive collaboration isn’t addressing the reason why the police are being called in the first place and evaluations on these collaborations are known to be poor so we don’t know whether it’s decreasing police contact for vulnerable people, regardless of whether it’s improving it. Helping the police respond better is the second of the two solutions and it’s not necessarily preventing the deployment. Some so-called ‘street triage’ schemes will claim that they have identified calls coming in which don’t need the police and the triage nurses have handled callers directly, without officers deploying. But we also know that some healthcare professionals have started diverting more demand to policing because “the police have nurses now!” and the triage nurses have complained like hell but be unable to avoid deploying to situations police officers aren’t required at.  I’ve seen that with my own eyes several times whilst shadowing.

And no, we don’t have data – those who designed these things didn’t appreciate the need for it. They were told, but they didn’t listen. Can only say that I tried! … the blog posts are there to prove it!

ACADEMIC EVALUATION

We’re simply not sure whether demand because of triage is rising or falling, because it’s not being evaluated properly and in fairness to Mr Winsor, it’s not HMIC’s job to do research! — whereas it is Professor Appleby’s. Research funding for policing and mental health projects seems to be hard to come by. Professor John Baker mentioned on Twitter recently that his attempt to secure funding hadn’t been successful but that he’d be interested in doing it. I’m aware of two other academic bids for funding to take a more thorough and critical look at these collaborations which have been turned down by health funding agencies. What more can you do that try?! It’s not HMIC’s fault that ‘positive collaborations’ are collecting very limited data sets, that academics are choosing not to really look at this stuff and that research funding bodies are turning down applications. Until then, you might just have to make do with people blogging, and offering their opinions.

Of course, HMCIC’s views are not just opinions – this is the professional judgement of Her Majesty’s appointed adjudicator: he has a formal position in our society and a statutory duty to call it as he sees it, even if there are some remaining questions of detail. I hope his intervention prompts research to prove him right or wrong, then at least we’ll know, won’t we?! But however, you look at it, Sir Tom’s views will no doubt be predicated on impressive quantities of information and opinion that HMIC collect from forces in their various routine inspections around custody and around general effectivenss, amongst others. The CQC are involved in advising on some of those inspections because of the obvious overlap with health issues in custody and CQC is an organisation on whose board Professor Appleby sits and for the record, their opinions and reports don’t always survive contact with reality, either! … but I can’t just dismiss the statutory regulator for healthcare and the Mental Health Act out of hand, can I?!

Meanwhile, my good friend Nathan Constable has blogged very well and very quickly on this new report. I’d encourage you to read his views. He’s also busy working his way through a Master’s degree looking more deeply at the issues around the role of the police and his early work has uncovered much that supports HMIC’s position: that mental health professionals thirty odd years ago could see where community care was going, where the use of s136 MHA was going (up) and where the role of the police was going. You only have to look at other countries with non-public healthcare systems to see how the criminal justice agencies end up playing a massive role, because there are inadequate social justice mechanisms to stop it from becoming necessary. If some people have a problem with uneducated police officers with 4hrs of training trying to fathom out what the hell is going on and making some kind of in-roads in to handling the rapidly increasing demand faced by British policing, they should feel free to step up: do some quality research that I can’t climb through and I’ll stop blogging and go an arrest someone for something. Until then, it seems a valid use of police time to try and understand how we address some of these issues, firstly and foremostly by actually understanding them and then do what the police are charged with as their primary duty: prevention.p>


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

Winner of the Mind Digital Media Award.


The Two Solutions

No matter what you think the problem is, there are only ever two solutions in policing and mental health —

  • The police need more training; AND / OR
  • The police need to work in partnership with mental health services.

All the emphasis is on the police here, isn’t it?! It’s almost as if the only thing we need to talk about going wrong or being in need of improvement, is policing. It’s a part of a subtle narrative that is far more widespread than we realise, if we actually just look for it consciously – and it works because it’s highly intuitive: the police are not mental health experts and we’ve seen incidents where things go badly wrong when they come in to contact with vulnerable people … ergo, some expertise (achieved through training) would be good, but better still would be actual expertise (achieved through collaboration).

You can see the flaw with this, though, I’m sure – whilst the police are not perfect and no-one is pretending they are, whilst the police would undoubtedly benefit from real, good quality training on mental health (and on mental health law!); whilst the ability to call upon mental health professionals in real situations may well be of help – it’s just simply not enough to explain what we know because it’s not JUST the police who are cause the problems.

Let me pick you a real, high-profile example: the death in police custody of Sean Rigg.

MORE THAN MINIMALLY

Primarily cited in more recent years as evidence of need to improve things in policing, the tragic death of Sean Rigg is most usually thought of as a death in police custody – and of course it was. It’s not often thought of as a case which highlights lessons for mental health services or for the training and responses of mental health professionals. This is highly curious, in my own view, because whilst the events following Sean’s contact with the police bothered me enormously and raised obvious questions, I was fundamentally at least as interested in why the Metropolitan Police needed to be called in the first place – and so was Her Majesty’s Coroner. The inquest jury returned a narrative verdict which outlined two things ‘more than minimally’ contributing to Sean’s death. Yes, one of those findings concerned the police response, their use of restraint and officers’ reaction to him collapsing, but the first thing the jury highlighted was an earlier lack of care and reaction by mental health services. This included administering inadequate quantities of medication, a lack of care and crisis planning, a ten-day period in which concerns were not escalated after signs of relapse and to call a Mental Health Act assessment.  Both systematic and individual problems.

Subsequent to those omissions, the Metropolitan Police were called and yes, various things went badly wrong. Some of them were systematic issues for the police as a whole, others were individual matters for the officers involved – just like those for the trust. It was one of those police encounters where you might wonder why Sean was arrested rather than being detained under the Mental Health Act and removed to hospital. Notwithstanding that point, once the police detain someone and restrain them on the ground, a certain set of considerations need to follow to ensure the welfare of any detainee who has been subjected to such a high-intensity restraint event and in no world where I work does that involve removal to police custody without reference to NHS expertise about clinical welfare. The jury found that these issues also ‘more than minimally’ contributed to his tragic death.

But here’s the thing I can’t stop wondering: had the first set of short-comings by the South London and Maudsley NHS trust simply not occured, we have to wonder whether Sean would have encountered the Metropolitan Police at all? — so is the ‘problem’ we need to face just about police training and police collaboration? Absolutely not – it is also about how our mental health services and / or our mental health professionals operate. It is for others to get in to specifics of that but it’s hardly unfair to point out this narrative when all we now hear, years later, is how this was a failure in policing that means we need far more training and more collaboration for the police. We do – but we need more than that.

POPULATION

The death of Sean Rigg was an individual incident, but it wasn’t entirely isolated – I could have used any number of examples to make this point. And we can also look at certain things best viewed at the population level to make the same observation.:

We need to reduce s136 MHA, we are told – that is the publicly stated objective of many street triage schemes and indeed, most evaluations we’ve seen for these initiatives have as their sole metric of interest, the impact of triage upon the use of this legal power. More than once, I’ve had to protest on social media about mental health trusts describing street triage as necessary to stop ‘inappropriate’ use of s136 MHA; and more than once, I’ve protested against the over-focus on s136. (Most street triage doesn’t occur in the street and most of it isn’t triage, so s136 is irrelevant to the majority of incidents being examined.) Again, it’s the “police don’t know what they’re doing” narrative seeping out which is actually contradicted by data from within the NHS itself. It often suggests the opposite and it should be making us wonder about those same things raised by the London Coroner after Sean Rigg’s inquest.

Within s136 data and street triage encounters from some areas, the proportion of people who are currently open to specialist mental health services in their area is a clear majority. In one example, 50% of people detained in a large city under s136 MHA were known MH trust patients in that same city and we’d have to assume that at least some of the others are known patients in adjacent areas, because c20% of detainees were people who lived outside the policing and mental health trust area where they were detained. In another example, one area was concerned at high rates of usage by the local police and kept telling me that detentions included high numbers of tourists from outside the force area who came on holiday and were inappropriately detained for drunkenness and other shenanigans. A short ramble through the management board papers on the trust website revealed an internal report on s136 which included the nugget of information that c75% of those detained by the local police were local residents AND known to mental health services.

So how wrong are they getting it, these ill-informed police officers?!

Finally, in a recent discussion with one force about their control room triage scheme, which is still quite new, they sought a couple of us from the College of Policing to do a quick and dirty review of their first internal report looking at their scheme. One statistic they uncovered was that half of all the people at the centre of the ‘triage’ calls were known patients with the local mental health trust and a further third of patients were recently discharged or disengaged patients with that trust.  In total, as few 12% of those encountered were entirely unknown to the local trust, but who knows how many of those were patients known to surrounding areas? Now all those people in these last three paragraphs were patients who had a crisis care plan and in theory, had access to a care coordinator and / or the trust crisis team. Why was that not sufficient or why did it not work for them?

My own 20yrs of experience, police contact with known mental health patients includes a mix of things, both entirely unavoidable and completely preventable. I do wonder about how routinely forces and trusts are working together, sharing information and reviewing practice to work out how much of each they have? – and how do they use that stuff to improve the police responses to the unavoidable stuff and to reduce the need for the police in the preventable stuff?!  There is not only a risk to vulnerable people from inadequately trained police or police working in isolation; there is a risk to vulnerable people in criminalising them by over-normalising the police and this is where I think we need to look much more closely.

MISSING SOLUTION

We need to work out why so many people, with care plans and theoretical access to services are coming to police attention in ever-greater numbers – and why, the mental health system is evolving in ways which actively encourage this. Quite frankly, it often relies on it – as when it is expected the police will unlawfully hang on to people for days whilst we frantically bed manages resources to ensure admissions. We don’t hear too much about the community mental health teams who say their workload has increased by 100% in 12 months; the CrisisTeams whose staffing is now 1/3rd the level it was about 10yrs ago; the fact that inpatient mental health beds have been reduced by 25% over the last few years, at a time when the number of people under the care of our mental health services is up nearly half a million patients. I could go on – abolition of early intervention psychosis services, reduction in the number of assertive outreach teams, etc., etc..

No-one doubts that the police need more training for the role they play and no-one, anywhere, is arguing that the police should play no role. However, accepting that there is a role, that we need more training to do it better, is not to agree the police should be staffing mental health units for those detained under s136 or that reaction to crisis incidents is sufficient. It is accepting things like, the need to improve the way the officers respond to and investigate allegations of crime, to ensure that victims of crime with mental health problems are not discriminated against within the criminal justice system. It is about ensuring that police expertise in criminal investigation and offender management is brought to bear on mentally unwell suspects, including through a model of liaison and diversion that actually thinks beyond health outcomes and addresses the question of when it is appropriate to prosecute a mentally disordered offender.

Policing has largely been motivated to look at mental health and improve its responses because of the legal fallout from serious untoward events. There aren’t many of them that don’t raise questions at least some questions about how partnership organisations operated at the point where policing went badly wrong. It’s frequent quip of mine when presenting on this topic to joke that I still have just a few hours of training and that half of it was wrong. But I also remark that the other half of my training didn’t work in the real world because the real world doesn’t always look like the Mental Health Act or its Code of Practice. In 2014 we published a Crisis Care Concordat and this document merely reflected a load of problems that were well-known and reflected in other reports and inquiries. Three years later, the police have completed all its actions from the national action plan – but has the NHS?!

And yet somehow it’s still all about police training and police collaboration. This simply doesn’t add up, does it?!


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

Winner of the Mind Digital Media Award.


PaCA – Section 140 MHA

This blog is part of the series which will cover, in detail, the amendments to the Mental Health Act 1983 within the Policing and Crime Act 2017. This post is one of several which relates not the amendments themselves, but to the implications arising from them.

For background to the series, see the introductory post which outlines why I’m doing this and what other specific issues will be covered concerning laws that will come in to effect in the next few months. Current Home Office estimations of timescales suggest early May – but this is subject to a number of factors and may change.


It’s now a dozen years since I first read section 140 of the Mental Health Act 1983 – and I recently met some senior mental health professionals who never ever read it or heard of it. When I first read the provision, in 2005, section 140 MHA was not mentioned once in the accompanying Code of Practice (1999), or the Reference Guide form the Department of Health. It still wasn’t mentioned when the Code was updated (2008) or in the revised Reference Guide. If you read the formidable Mental Health Act Manual by Professor Richard Jones, you’ll see this book provides the full text of the Act and Code as well as a commentary on the sections of the Act, so of course it was covered in there. However, the commentary was limited in comparison to that for other provisions.

I’m not going to repeat my first post on section 140, so you can go back to that original post if you wish. This blog argues just two things –

  • We still aren’t really talking about this provision – what it says, what it means and how we actually acknowledge its existence in law by action in the real world; AND
  • It’s now become more important than ever before – it will become more important still in just a few months time; and this raises the importance of point one!

When public consultation occurred for the latest Code of Practice (for England) in 2014, the draft didn’t mention section 140. I replied to that consultation asking why not, given it was missing form the two previous editions and from the Reference Guides, so it consequently seemed that no-one had heard of it. Its implications may be widely ignored and I came to increasingly see that as a problem, not only for the police. I was delighted to find, when the Code of Practice was published in 2015, this provision finally received a brief mention (see the section commencing at paragraph 14.77).

PARLIAMENT’S INTENTIONS

When legal discussion occurs about Acts of Parliament, we often hear people wondering about parliament’s intentions, too help interpret the text of an Act. Of course, intentions is one thing, the actual wording of the Act might be something else instead, depending on the quality of how the law was drafted. Section 140 of our current Act is, in fact, just a direct transfer to the ’83 Act of section 132 of the preceding 1959 Mental Health Act.  It’s a provision that has almost sixty years of history but that, I haven’t been able to find out much about that history, despite efforts. All I can say, is I’ve made Freedom of Information requests to well over 50 different Clinical Commissioning Groups (or their Primary Care Trust predecessors) and I don’t find myself satisfied by a single, solitary answer I’ve received. I most recently did this in 2016 at which point several CCGs just replied to say they’d never heard of the provion and didn’t understand my question. And this is the law of our country we’re talking about!

The section itself says –

“It shall be the duty of every Clinical Commissioning Group and of every Local Health Board to give notice to every local social services authority for an area wholly or partly comprised within the area of the clinical commissioning group or Local Health Board specifying the hospital or hospitals administered by or otherwise available to the clinical commissioning group or Local Health Board in which arrangements are from time to time in force — (a) for the reception of patients in cases of special urgency; (b) for the provision of accommodation or facilities designed so as to be specially suitable for patients who have not attained the age of 18 years.”

So what does this all mean? … actually?! –

The 1959 Act was written at time where mental health units were not expected to considered themselves ‘full’. A local, county asylum would continue to accept and accommodate patients thought to need admission where applications to them were made under the Act or by the courts, not withstanding such modern niceties like capacity or conditions. Indeed, earlier in my career, when I sought legal advice on MHA admissions, the barrister concerned advised that hospitals were actually not legally permitted to refuse admission made to them. I haven’t heard this repeated by anyone else since(!) – and indeed I’ve heard it repeatedly contradicted – but it attends to this point: where detention or admission is required, for safety reasons, it needs to be able to happen.

MORE THAN BUREAUCRACY

Legal considerations about the need to admit someone urgently under the Act include more fundamentally important things than niceties and bureaucracy in our particular domestic law. It could also amount – and it often does amount – to a human rights consideration. We know that prolonged detention in police custody (pending admission) can contravene Article 3; we know that protracted detention in custodial settings for no other reason than mental health problems can amount to an Article 5 violation; we know duties owed to patients who are known to be suicidal can give rise to Article 2 considerations, whether the patient is detained or voluntary. And we know that no state may defend these things by arguing they don’t have the money to prevent them. As such, dependent upon the precise circumstances, the need to ensure an urgent admission may be something which triggers one or more of these various duties? – remember: no public authority may act in a way that is contrary to a person’s European Convention rights, by virtue of s6(1) Human Rights Act 1998. 

It must surely have been the intention of Parliament when writing and updating the Mental Health Act over the last sixty years that wherever AMHPs and DRs encounter people in urgent need of admission, that occurs just as it would if someone had any other serious, potentially life-threatening condition? I struggle to read section 140 without thinking about these implications: I know the section does not overtly oblige hospitals specified to receive patients where they have good reasons for needing to resist an admission because of the pressure they are under. But this, for me, is where the intentions come in to it – presumably, Parliament are asking CCGs to ensure that there are contingencies available to ensure that at least one of those hospitals is in with a fighting chance of actually receiving the person for urgent care.  Whether CCGs commission things in such a way as to ensure hospitals run, as the Royal College of Psychiatrists recommends, at 85% capacity; or whether there are other mechanisms provided for around an increased availability of staff and space, to be triggered by managers in relevant situations – either way, it would amount to a plan.

The conversation inevitably comes back to money: the NHS mental health system is under pressure and NHS commissioners can’t afford to do anything other than cut, the argument goes. But only yesterday we saw that NHS managers at national level have taken choices to use money ring-fenced for mental health in order to clear the deficits of acute trusts. There are choices being made here. I remember reading the legal documents for the MS v UK case which related to a challenge against the NHS in Birmingham over protracted detention in custody. The lawyers representing the applicant, in their submission to the European Court mentioned a case from Ukraine, which I’ll be damned if I can name or find when searching for it! – I will update this page if my queries bring it to light. But the case essentially said that no state can defend a violation of the ECHR by claiming ‘economic necessity’: you can’t argue, “we can’t afford to it in any other way” if your approach amounts to human rights violations. It’s just not (legally) sufficient.

POLICE CUSTODY

These issues are live problems that your police service often see – it’s over ten years since a police force first felt that they were in such an invidious position because of the inability of mental health services to get someone in to a bed that they referred the case voluntarily to the Independent Police Complaints Commission. The IPCC found the force and its officers had broken the law, but that there was just no way they could have done otherwise because the only alternative course of action they had available to them was to release the person from custody, whereby they would have failed on other obligations. It was one of the genuinely rare “damned if you do, damned if you don’t” situations. Only a couple of years later, I remember a murder investigation in the West Midlands that risked going off the rails because a suspect needed to be admitted to hospital under the MHA and the argument broke out about no (secure) beds being available. As with the IPCC investigation in to GMP, it took threats of legal action by the force to eventually cause a bed to be found. More recently, we saw the case in Devon of a sixteen year old girl being detained for two days which led to a senior officer tweeting about the situation to draw attention to the problem and media reaction forced an outcome that was otherwise not likely.

Those examples all relate to police custody after arrest for an alleged offence but there have been difficulties relating to section 136 detention and admission from police custody. The MS v UK (2012) case involved a 72hr time limit within which to conclude arrangements for treatment but this was not adhered to, again because of arguments about accessing a bed in a secure mental health unit. In that case, the European Court ruled there had been an Article 3 violation because of the patient’s “dire need” of psychiatric treatment. If we are about to see the timescale for s136 MHA assessment reduced from 72hrs to 24hrs, it seems only likely that there will be more cases in the future where we cannot arrange a patient’s admission within the timescales afforded by domestic law.

I’ve been repeatedly asked in the last few weeks what should happen if the 24hrs limit is reached and no application has been made? – that answer is really, really easy: you have to decide whether to release a person in to the street, knowing they are so unwell they require compulsory admission to hospital; OR you unlawfully detain them pending the identification of a bed. There is no easy, ideal and lawful option available to you. You must decide between the two things, whilst escalating to senior officers and senior health managers, citing the legal problems and demanding resolution as soon as possible. But this all comes back to he question of whether section 140 means what I think it means: that CCGs and LHBs should be specifying those hospitals which have arrangements for urgent admissions AND then ensuring they are operating in such a way that if an AMHP needs to make an application for admission in a hurry, they are not prevented from doing so whilst exhaustive and protracted searches occur for beds. Whatever it is that section 140 means, the way in which it and all the other sections of the MHA are given effect, MUST then ensure that the human rights of patients are protected. No public authority may act otherwise and they cannot defend the situation by arguing that they don’t really have the money to do it any differently.


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

Winner of the Mind Digital Media Award.