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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 it 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! Hardly 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 – 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 become ‘sectioned’ when they are accepted at the 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 detainees 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 impatient 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 soecifiy 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!

Criminal Sentencing under Part III

It’s a couple of years since I first wrote an explanatory post about what some people call ‘hybrid orders’ under s45A of the Mental Health Act. These are still comparatively rare, combining a period in hospital under the Mental Health Act with the possibility of being transferred to prison if inpatient care is no longer required. The fuller post goes into various details that I won’t repeat here as well as giving some real examples of where such orders have been used.

This post covers an Appeal Case from last year – the case of R v POOLE (2014). In it, we saw a very technical legal argument about when such orders can be imposed, but it’s an argument I thought I’d summarise for those amongst you who like this sort of thing! —

Matthew POOLE is a man with a long history of criminal offending totalling 90 convictions. He had also previously been a s3 inpatient. At the point of committing further offences leading up to this Appeal Court hearing in 2014, he was a s37 (hospital order) patient after being found unfit to plead after being charged with burglary. It is worth me emphasising, in order to explain this case, that he was not a s37/41 (restricted hospital order) patient. As a result of the hospital order for burglary, he was detained in a medium secure unit in Bury, Greater Manchester where he stole bank cards and money from three other patients, amount to over £7,000 in total. He was charged alongside a care worker from the hospital who was also convicted and sentenced to almost two years in prison for his part, whilst Mr POOLE was given the same 22 month prison sentence and a ‘hospital direction’ under s45A of the Mental Health Act.

HOSPITAL ORDER v HYBRID ORDER

The argument being put forward on Mr POOLE’s behalf concerns the technicalities of s45A. If you’re so interested that you’ve read this far(!) it may be worth you opening the text of s45A Mental Health Act in another tab or browser, if you can. If not, might want to click into it and back again as you continue. I re-read the damn thing about five times trying to digest what this Appeal was about! You need to keep in mind what a ‘hospital direction’ is under this section; as well as what a ‘limitation direction’ is.

A hospital direction – this is the legal order which means that the defendant in question will spend time in hospital before any consideration of the prison sentence that has been imposed.

A limitation direction – this is the legal order which means that whilst the defendant is in hospital prior to any period of imprisonment, they shall be subject to the restrictions outlined in s41 of the Act, making them a restricted patient.

So this is the legal question for the Appeal – when the judge is imposing a s45A order, must they impose the limitation direction in addition to the hospital direction? Mr POOLE’s lawyers argued that they were under a duty to do so and had failed in that responsibility. They went further, arguing that consideration of s45A as a whole requiring the original court to impose the limitation direction, they trial judge could not legally impose the s45A hospital direction either. No-one had argued at any stage argued that the defendant posed “a serious risk of harm” to the public – his offending had been largely acquisitive in nature, not violent and so the grounds for imposing a limitation direction to ensure s41 restrictions were not met. The Appeal Court ruled that the original trial judge was correct and the appeal was denied. It is legal to impose a s45A hospital direction without a limitation direction to make the defendant a restricted patient. In that respect there are two kinds of ‘hybrid’ order: the restricted and the unrestricted versions and in that respect, this ruling confirms that these orders are like s37 hospital orders as well as those transfer directions under s47 and s48 for those sentenced to imprisonment who need to be transferred to hospital whilst serving their sentence.

All clear?! Excellent!

Incidentally, do you remember the “Sorry? … What?!” post from a week or two ago. I was trying to draw attention to the fairly horrific idea of a “Part III Place of Safety” where a court can direct that a police station be used for up to 14 days pending the identification of a bed in hospital. This can follow from a judge sentencing a defendant to a (s37) hospital order; a (s38) interim hospital order; or a (s37/41) restricted hospital order. In researching this post, I re-read section 45A for the first time in a while and realised, to my further horror, that where a Part III place of safety is required pending the admission to hospital of someone who has been made subject to a s45A order, they may be detained in a police station (as well as a prison or other location) for up to 28 days. Again – it’s a fairly medieval idea that has survived into our twenty-first century law.

But can you just imagine the custody sergeant’s face?! … “What?! … 28 days?!!”

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The Mental Health Cop blog

– won 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

– 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.

Five Hundred Blogs

To the Tune of 500 Miles by the Proclaimers —

“I would write 500 blogs
And I might write 500 more
Just to be the man who’d wrote a thousand blogs.
On policing, mental health and law.”

500 BLOGS, but only really saying these same five things, over and over again in different ways —

Police officers lack clinical qualifications beyond a basic first aid certificate and some of the clinical complexities we come across in mental health emergencies are way beyond our skill set – we need paramedics, consultants in emergency medicine and / or psychiatry as well as AMHPs, social workers and mental health nurses to get involved in help us get this right.

No-one at the interface of policing and mental health seems to have sufficient legal knowledge to survive proper contact with it and I certainly include myself in that statement, as I’m making this up as I go. I have absolutely no qualifications whatsoever for anything I’ve spent the last decade banging on about so I could well be wrong about all manner of things on here!

We are currently policing a twenty-first century, deinstitutionalised model of mental health care using laws that were conceived when British adults carried ration books and Buddy HOLLY sang live music – it remains my view that the the structure of our mental health services don’t always take account of the implications of our laws, which is a problem from whichever angle you view it.

There has been a deliberate agenda over the last twenty years to deflect those in contact with mental health services into ever greater contact with the criminal justice system – and for a variety of different reasons. This is something we need to be careful about as well as something we need to be outraged about because no-one asked the criminal justice system to prepare itself – so it consequently didn’t.

Finally, there needs to be far greater compulsion directed towards our public services – NHS and police alike – because it seems that no amount of deaths following contact or custody; no amount of children detained in jail for the crime of being ill or distressed; and no amount of human rights violations being noted seems capable of motivating sufficient change at sufficient speed.

There! – said it (again).

Not sure what else to say or how else I could re-write what I’ve already written over the last three and a half years. I’ve long since run out of any significant new ideas for this BLOG and I’m now just commenting on new reports, new cases and reminding us all (again) of things I’ve already said before. And if that sounds slightly weary, then it should – I’m genuinely quite bored by the sound of my own voice and I can type ‘psychiatric‘ without having to look at the keys or check the spelling! In the coming year, we will see a new MHA Code of Practice, which I don’t think will have a significant impact on the policing / mental health interface and we may see the Mental Health Act amended to take account of last year’s Government review. Whilst this will bring certain benefits that need to be welcomed, it would also bring practical problems because we know that NHS services are not currently positioned to deliver what the MHA review would require of them.

MY REFLECTIONS

As I approached 100 BLOGS I started preparing to wind this all up – I wasn’t sure there was much more to say! Since then, new idea and developments as well as new reports and individuals cases mean that I’ve now written well over half a million words, helped in part by the fact that mental health as a subject within policing has become more prominent since I was first involved in it. To put that into some kind of context: half a million words is more than six PhD theses at my old university (I must getting ’round to doing a PhD) and far more words than is contained in War and Peace by Tolstoy, whether you read it in English or in Russian! It’s three posts a week, which does make me wonder what else I should be doing and we’re knocking on the door of the BLOG having been used 900,000 times in 175 countries around the world – we should hit the million mark by the time I go on holiday in May!

Writing this blog has been literally life-altering for me. It has taken me into rooms I never thought I’d get into and brought me to a new job where I actually now get to try and put my ideas into some kind of reality – all the things I’ve been banging on about for the last decade or more. Ironic, given that I started the BLOG in the first place because there was so much more to be said and done at the point where my last posting on mental health ended. But it was always my operational experience as a police officer that allowed me to see these issues from a certain angle so I’ve always been proud to be a frontline 999 response officer, having to deal with these issues day-to-day.

I’ve had various criticisms whilst writing this BLOG too. One man complained that it isn’t about mental health – it was never, ever intended to be. It was always about policing and how we could do it better – which means safer, faster, more humanely … better deciding how and on what terms the police become involved in responding to mental health crisis incidents. I’m not a mental health professional and never, ever will be.

So I’m grateful to the hundreds of people every day who take the time to read my stuff and I’m always grateful to learn the stories of where it has helped someone make an impact or overcome a problem: I only ever hoped that professionals would find it useful in their work. That members of the public have said they find it useful in understanding their rights and why public organisations do various weird and wonderful things when they’re interacting with each other around incidents involving those of us in distress, is an unexpected bonus, quite frankly but all the more surprising for all that.

So I mark and end this 500th BLOG by stating my largest current concern – perhaps this is something I need to learn and write more about? Some of the things we are doing to take us forward are in many respects taking us backwards – I am concerned about the extent to which our whole system’s approach to mental distress seeks to criminalise and coerce vulnerable people when that’s probably about the worst thing we could do – criminalising and coercing anybody rarely provides more than a short-term intervention, although it is occasionally required. We need to put humanity at the heart of our response to people in distress and bear in mind what Desmond TUTU said —

“Eventually, we need to stop pulling people out of the river, get upstream and work out why they’re falling in.”

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The Mental Health Cop blog