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Locked Up

A man was arrested recently for an alleged offence after he went in to a large store brandishing some weapons that he’d improvised from household items and this included several razor blades.  Quite naturally, it led to a 999 call for the police to attended and contain the situation before any got hurt. The man was arrested and taken to the police station. After being seen by the Force Medical Examiner (FME) a full Mental Health Act (MHA) assessment was requested and after this was conducted the custody officer was informed that it was the intention to admit the man on a voluntary basis to the local mental health hospital. There was then some professional conflict between the custody sergeant and the professionals about how to resolve the incident, the sergeant feeling that the man shouldn’t be going anywhere on a voluntary basis, given what he felt were the risks of absconding or of the patient just changing his mind whilst travelling or upon arrival.

So a discussion broke out, can you ‘section’ someone so they are detained under the MHA itself, if they are consenting to  admission, with capacity to make that choice? Well, it’s clear that you could, legally speaking – see chapter fourteen of the Code of Practice to the Mental Health Act 1983. It therefore raises the question of when you should? The Code outlines –

14.14 – When a patient needs to be in hospital, informal admission is usually appropriate when a patient who has the capacity to give or to refuse consent is consenting to admission. (See chapter 19 for guidance on when parents might consent to admission on behalf of children and young people.)

14.15 – This should not be regarded as an absolute rule, especially if the reason for considering admission is that the patient presents a clear risk to themselves or others because of their mental disorder. 

14.16 – Compulsory admission should, in particular, be considered where a patient’s current mental state, together with reliable evidence of past experience, indicates a strong likelihood that they will have a change of mind about informal admission, either before or after they are admitted, with a resulting risk to their health or safety or to the safety of other people.

14.17 The threat of detention must not be used to coerce a patient to consent to admission to hospital or to treatment (and is likely to invalidate any apparent consent).

COMPELLING THE WILLING

The police officers asked for consideration of the man being ‘sectioned’ despite his willingness, given that the crisis incident which gave rise to his arrest and assessment involved homemade weapons being brandished towards members of the public. There was a sense that only good fortune had avoided injury being caused.  The AMHP and DRs were not satisfied: after initially indicating that the man could NOT be ‘sectioned’ where he was consenting with capacity to admission, they admitted being unaware of the above provisions which had been shown to them by the duty inspector involved. They stood their ground and requested that the police assist services to convey the man on a voluntary basis to hospital which then raises further questions, both for them and for the police: if the man is willing, why does he need a police escort; and do the police have a duty to become involved in the conveyance of a man who is not legally detained and who could not be prevented from leaving the vehicle or refusing to enter the hospital building?

I admit that I’m not sure I would want to be involved in it, if I’m honest – and I suspect I could argue no obligation to do so. Why would I want my decision-making intensively scrutinised by the IPCC for failing to prevent a situation unfolding that I had no power to prevent until the man attempted to commit a criminal offence? … it’s not a criminal offence to change your mind about admission to hospital on a voluntary basis. When the question arose about what would be expected if problems did emerge en route, mental health professionals suggested the man could be “arrested by the police” to prevent him ‘absconding’ … precisely what he would be arrested for, remained unspecified and unclear but perhaps more importantly, this seemed to betray a belief on the part of those who assessed him that the situation should not be allowed to develop in such a way as to allow him to exercise his legal right to liberty. Perhaps this was because of the risks, involved?! Either way, it would be a de facto detention; in addition to putting the police into a predicament.

TRANSFERRING RISKS AND LIABILITIES

This all raises an important debate: does it demonstrate a tendency to prefer risks to be borne, tolerated and absorbed by police officers who have been somewhat cajoled in to a situation they cannot control? Legal responsibility for the consequences of decisions arising in the MHA assessment sit with the AMHP and DRs involved, not the officers who originally arrested the man. If it is legally possible and occasionally necessary to ‘section’ someone who is willing to attend hospital and has capacity to decide, then what are those situations if they are not those related to ensuring a legal framework is wrapped around people who, because of their illness, represent a risk to themselves and also to others if they do not remain?!  I’m struggling to think of one.

When I discussed this incident, it reminded me of an interview given by the medical director of Southern Health NHS Trust about repeated escapes from hospital premises of people who are in fact detained under the MHA. Dr Lesley STEVENS said of patients in mental health units, “We don’t lock people up.” Even allowing for her deliberate choice of language to which any of us could take exception when referring to people who are unwell, it does remain true that our mental health system is responsible for detaining people against their will and stated cases make it clear that this duty extends to keeping people detained in circumstances where the risk of them leaving is too great to tolerate. Pick another term that ‘locked up’ by all means, but let’s not pretend that services for those made subject to the MHA should be a revolving door where people can come and go as they please. The flip side of this is, where patients like the man with the homemade weapons is, in fact, detained; he should be afforded the courtesy of this being formalised so that he has legal rights within the system that is detaining him, he can have those decisions reviewed and can challenge them if he feels the need.

Learning points here – those who consent with capacity to MHA admission can be sectioned if there is a reason to do so; the police have no obvious legal duties to convey voluntary patients and we create risks and liabilities for the public and the officers if we insist upon doing this in circumstances where the AMHP / DR would expect the police to keep the person against their will until admission is achieved.

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We Need To Talk …

I suspect forces and their mental health partners are going to need to have some properly serious discussions later in the year about the role of police services on psychiatric wards: it’s one of those discussion I alluded to in a previous post that we often dance around or try not to have but incidents connected to it keep coming quick and fast. You’ll remember that the Policing and Crime Bill is making its way through Parliament at the moment and obviously, MPs from all parties are entitled to suggest amendments to the Bill during it’s passage. Yesterday, the those amendments so far received were published on the Parliamentary website and two MPs – Charles WALKER and Norman LAMB – have tabled proposals which mean this discussion really needs to happen. What is the extent and the role of police officers on inpatient mental health wards, should ever Taser be used and if so, what degree of scrutiny should it receive – these are all questions that arise for discussion within the amendments. And let’s not forget, this is the most serious, sensitive business: people have died in police and NHS contact on wards; NHS staff have died during disorder and disruption on wards – all of it is affected by staffing levels, approaches to Health & Safety risk assessment.

The College of Policing has been working on this for over eighteen months with professionals from other organisations, professional bodies and Government departments. I find it exceptionally interesting, so we need to start discussing what we’ve found out, accepting that data – as ever – is not adequate to allow a proper understanding.

Mr Charles WALKER MP has proposed that the Home Office should mandate the collection of data about every instance of police being deployed to wards; he further proposes that every use of Taser should be reported to the Chief Officer of police and reviewed after the fact for the appropriateness of the deployment and the use of Taser.  Mr Norman LAMB MP goes further: he has proposed that no police officer should ever be allowed to use a Taser on a psychiatric ward.  So there are two issues here –

  1. The deployment of officers to wards in the first place
  2. How officers who are deployed to wards then undertake tasks in connection with that 999 call.

WHAT WE’VE LEARNED

I’m going to simplify what I think I’ve learned in this process in to four key sentences, summarising

  1. Mental health wards are often not able to draw upon sufficient staff to undertake the restrictive practices that most people would imagine fall under the purview of NHS responsibilities to administer the Mental Health Act – the police are called to NHS wards hundreds of times a month across the country in connection with what I will call ‘disorder or disruption’ linked to ‘therapeutic security’.  In other words, situations which have become difficult or impossible for NHS staff to manage but which are not obviously incidents of offending that require arrest or even investigation.
  2. In most of the situations where the NHS call upon the police, they are not calling in connection with what they are regarding as criminal activity because in the majority of incidents where a crime has occured, the NHS’s own data shows they take the view that the patient’s actions were caused by or contributed to by their condition. That’s a whole other debate in itself, which I’ve covered elsewhere.
  3. Therefore what the NHS are usually asking for, is police ‘muscle’ to help them attend to legal responsibilities that most of us would understand to be theirs: the restraint, seclusion or medication of patients under the MHA – obviously, if you are in the business of providing mental health care that involves detaining other humans against their will and preventing them from leaving your building and taking medication you think is necessary whether or not they want it, there will be few people who would suggest this will be without.
  4. No-one is saying here, that there aren’t situations in which police support for this ‘MHA stuff’ won’t b necessary – if a patient becomes agitated because they are told medication will be given to them despite their objection and they damage furniture and fashion and improvised weapon from a chair leg or broken piece of glass, then the risks are such that the police will be required. No problem.
  5. But the police legal responsibility is to mitigate that unforeseen risk NHS organisations would not be expected to manage – and where officers attend and contain a situation, then remove a weapon or barricade in whatever way, the situation should revert as soon as possible to being one for the NHS; to make decisions about restraint, seclusion or medication, as they see fit and both health & safety law and human rights law would potentially have things to say about their inability to do so.

THIS WEEK AT WORK

Only this week, I have had five different queries from police forces about this topic of the police on MH wards and it’s only Thursday morning. Both of my meetings when I get to London this morning are about this topic – I’m not sure whether it feels like the issue is getting more frequent because I’m doing particular work on it at the moment, or because forces are experiencing more requests and queries.  Anyway, North Wales Police, South Yorkshire Police, West Midlands Police and the Metropolitan Police have all raised queries this week alone – asking “what are our legal duties; our legal powers and those of the NHS?”

In one case, officers were called to a psychiatric intensive care unit in the afternoon, at shift change over time. NHS wards often plan to undertake restrictive practices at change over time because they have more staff available to do it. On the particular occasion, twelve members of staff were reported to be tasked with giving medication to one patient, albeit someone with a significant risk history. The police were asked to be on standby on the ward, but out of sight, in case their efforts to administer medication went awry – it was agreed that they would and seven officers attended.  Nineteen professionals to give medication to one person. When the man was told he would have to receive medication, he stormed off to his room making verbal threats and all twelve staff were reported by the sergeant in charge to back off and refuse to act because of the risks involved. The police were asked to restrain the man for medication and then transfer him to a seclusion room.

Now, let’s descontruct this: a man on a PICU (for patients who require intensive support because of their condition and the way in which it manifests) required medication and made verbal threats. Even if they amounted to an offence of threatening behaviour under s4 of the Public Order Act 1986 of Threats to Kill under the Offences Against the Person Act 1861, those offences weren’t the main point behind police support being requested: it was about police ‘muscle’. And final point about deploying the police to that incident from a legal point of view: the hospital’s legal duty of care under Health & Safety law is owed as equally to the police officers who attend as it is to the NHS staff who work there. Nothing in law particular prevents the police from doing this. However, it should be recognised that nothing obliges them to do so either, especially where they have contained a situation that only they can manage and / or where no offences are being committed or threats to life being made out.

This creates the potential of a stand-off and it is that, right there, which we need to discuss – properly.

WHAT AM I NOT SAYING?

Is this a point about mental health staff? – no! It’s a point about how organisations approach the management of this kind of risk. Actually, a man in his room verbalising threats in circumstances where we are never going to consider immediate arrest and removal to police custody for the offence, is never going to be a legal responsibility of the police service. It remains an NHS legal responsibility to administer the MHA and until the situation becomes so serious because of raised risks, the response to these kinds of operational problems needs to be reflected in mental health trusts’ risk assessments and contingency plans.

Is this to say there is never a role for the police? – no! It’s about everyone understanding that the police do not have legal responsibilities to patients on wards, or staff, until situations are sufficiently serious to trigger what we expect the police to do in society as a whole. I’m often told that mental health staff have the same right to protection in law as members of the public who are shopping in Waitrose and if someone thought they were about to be assaulted whilst picking up their quinoa and pomegranates, they would be able to call the police. Unfortunately, this is not as simple a comparison as you might think: Waitrose also have to risk-assess the situations in their shops which are forseeable: their staff and customers are owed a duty of care in that same regard. But somewhat obviously, Waitrose are not obliged to consider how to coerce a vulnerable individual as part of their forseeable business – it’s just not what they do.

Now, as a society we could all take a view, that we don’t want mental health professionals undertaking this – we could, as a country, legislate to make coercive practices in hospitals the responsibility of the police, when directed to do so by the NHS. If an MP wishes, they could table such an amendment to the Policing and Crime Bill and it could be considered. It strikes me, based on their amendments, that neither Charles WALKER nor Norman LAMB think that is the way to go forward and their views could yet, be reflected in law depending on the debate that emerges around the Bill in the House of Commons next month.

IN THE REAL WORLD

Some final points: some times these debates lead to the discussion about cuts, funding and resources. Well, I’ve never believed that this argument is the right one to have, but if you insist: between 2001-2011 the NHS’s own data shows a real-terms increase in funding of 59%; over the same period, the police received 31% increase. Since 2011, the NHS have cut mental health services by 8%, whilst the police have been cut by around 20% – some would say it’s nearer 25%. So if you do want to have the discussion based on resources and cuts – the police are having to rationalise far harder. This is probably why in one of the other incidents I’ve discussed with a force this week, part of it involved an NHS manager reacting with incredulity that ‘only’ two officers were provided after a request for assistance. Again, a request that didn’t trigger any legal duty on the police, incidentally. When the manager protested to the duty inspector asking specifically for another ‘three or four officers, the duty inspector said, “How Many officers do you think I have at the moment?!” Pressed for an answer the manager said, “Twenty?!”

“No – nine, you’ve got two; another two are at A&E with a s136 detention we’ve been told you can’t assess until morning and of the other five, two have prisoners and there are three officers left dealing with all the 999 calls – crack on!”

We need to talk … and more importantly still, we need to talk to patients themselves, which is exactly what I’m spending this afternoon doing.

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The Police as Contingency

Many times in my career, along with every other police officer in the country, I’ve been called upon to do something as part of someone else’s contingency plan – can the police support paramedics in attending an address, because it’s flagged as being connected to violence; can the police attend an address on their own to undertake a ‘safe and well’ check, also known as a ‘welfare check’ on a patient who has rung the crisis team. We know that many patients, or parents of younger patients, have been told to ring the police if things become difficult at certain times – usually connected to the non-operating hours of the service giving that advice; and we know that many patients have had ‘ring the police’ written in to their crisis plans without their knowledge.

There are a few things to say to this, that I thought were worth focussing on –

RISKS ASSESSMENT

Firstly and most importantly, I’ve never known these plans be put in to any kind of action with anything like an adequate amount of information being relayed.  “Can you back up an ambo crew, patient with a history of violence.”

Well, frankly, what on EARTH does that mean? – did this guy shout at the previous crew and threaten to hurt them, did he try to hurt them; did he succeed in hurting them, but fortunately not too seriously; or did he cave in a paramedics head using a wooden fence post and then stamp on and break their hand (real example)?!  And when, did this happen – if it was in 1997, should we review the approach? – if he was only ever a bit shouty, and we’ve been there a dozen times since without problems, maybe we should review it when it’s so historic; if it was in 2015 and we haven’t been there since, it seems fair enough that the police are involved. If he did brutally attack a paramedic, then the age of the incident may not matter at all because of its seriousness.
Secondly, the control room or the duty sergeant is going to have to make a decision about police resources: do we send one, single-crewed officer or a double-crewed car? – maybe a Taser officer would be a good idea if the previous incident involved wooden fence poles? Maybe the nature of the ambulance job also effects this decision – if this incident involves a person who is experience a mental health crisis, we might want to send a sergeant or a street triage resource (if available). I once received a call like this and initially took a sergeant and six Constables; once there I ordered another sergeant and another seven Constables in a van with riot gear, releasing one of the double-crewed cars.  Understanding risks is not about just curiosity, it’s directly relevant to decisions that are ultimately legal decisions about Health & Safety law – we are still under a duty to risk-assess jobs to ensure safety to the maximum degree: yours and ours!

LEGAL CONTINGENCIES

Finally, where the police have been structured as the individual crisis response by a mental health organisation, we can occasionally create this 999 exchange in reverse. I remember an incident where a family were struggling to meet the needs of their 14yr old son at home and he had been ‘sectioned’ one evening by an AMHP and two DRs. However, the bed wasn’t available until the following morning and the family had been asked to convey the lad there at 9am with someone saying as they left the address, “Any problems between now and then, just ring the police.”  All of points one and two, above, remain relevant here but there is an additional reason to be frustrated: what are the legalities here? Assuming this incident was ongoing in private premises when the police arrived, they have no legal powers at all unless there is a criminal offence going on! Do the parents realise this? – or have assumed or been told the police will be able to resolve whatever is happening in a way that seems logical, caring and appropriate?!

The eagle-eyed amongst you will have noticed I’ve been deliberately ambiguous in the sentence that talked about legalities: if there is no bed available, I usually get really pedantic in asking whether or not the AMHP has completed their application for admission or not – because the answer alters the legalities for the police. If they have completed it, and the police attend a crisis incident, then we can start having a think about s6 MHA by ringing the out-of-hours AMHP and discussing things. If they haven’t, then it will have to be a different discussion. Of course, either way, the police will be waking in blind to a situation that involves laws that I’ve known MH nurses and AMHPs misunderstand so my final point is that putting the police in to this unprepared and un-briefed is just bloody unfair on the officers who have no legal powers to ensure that can come across as being logical, caring and acting appropriately!

WHAT THE POLICE DO

Remember what the police can do: we can talk to people or use force – I’m guessing that if talking to people we’re going to be successful, the police wouldn’t have been called! If we are going to be called, we need the chance to do a good job by being given the right information and where it is known that the police are going to be the back up plan at some stage in the future, why not ring the police in advance and let them know they’ve just become part of a plan?  “Hi, this is the CAMHS CMHT – I just want to let you know that we’ve advised two parents to ring you tonight if things become difficult.  Their 14yr old son James has autism and a learning disability and will be going in to hospital at 9am tomorrow. If the parents call you, you should be aware that James occasionally has a form of meltdown and can be aggressive towards his parents and others but the best way to deal with it, would be for officers to just contain a situation to stop it getting worse, make the situation as calm as possible by turning off blue lights, sirens or radios and try to give him time.  You can ring this number when you get there and speak to [name] about what’s going on and they can talk the officers through the options. An MHA application for admission has been made so s6 MHA will apply in the situation, but you will need to think about whether that is the appropriate way because the hospital are not expecting him until 9am tomorrow.”

Now – whether or not I agree that this is an appropriate role for the police – at least I stand half a chance with that information calmly explained by a control room operator. “This is what CAMHS told us this afternoon” … imagine if officers arrived and were having to be told this by a distraught father whilst they were already in to some form of restrictive intervention because they worried James would hurt himself or someone else?


IMG_0053IMG_0052Winner of the President’sMedal from the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award