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Pushing the Envelope

I’m going to start with a disclaimer! – this post is thrown together to prompt discussion. I am not (yet!) putting this forward as a position or suggestion; I’m not even saying I’ve finished thinking this stuff through or that I believe every point made below. This stuff is not settled in my mind and is written purely to prompt discussion of a couple of things we seem to be taking for granted. All views very welcome in the comments section below.

On Monday of this week, I was asked to present to the PACE Strategy Board at the Home Office – this is a regular gathering of interested parties who oversee and discuss the issues that arise from the administration and application of the Police and Criminal Evidence Act 1984the Police and Criminal Evidence Act 1984. It is attended by the Police Chief’s lead on Custody, Chief Constable Nick EPHGRAVE (Surrey Police); Emeritus Professor Michael ZANDER, the UK’s top legal guru on PACE; and other representatives of bodies like the Crown Prosecution Service, the Law Society, and so on. The problem I presented on is one that will be familiar to regular readers of the BLOG: a person in custody for an alleged offence has been assessed by professionals under the Mental Health Act and is deemed to need admission to hospital but no bed is available and question arise about the legal governance of their detention.

There have been some high-profile examples of this –

  • You may remember a Tweet by Assistant Chief Constable Paul NETHERTON which made national news headlines in October 2014 after a 16yr old girl was in custody for almost two days.
  • An application for Judicial Review was made by Greater Manchester Police in 2005 and they referred themselves to the IPCC after a man was in custody for over three days.
  • In 2012, a West Midlands Police case involving use of s136 of the Mental Health Act led to detention exceeding the 72hr permitted maximum in a case which was subsequently ruled by the European Court of Human Rights to have violated the Article 3 rights of the man involved.

Well, this morning I woke up to find a tweet had been sent to me and many others, highlighting yet another situation where a child was being held in custody pending the identification of a bed that didn’t appear to exist; and in a great piece of work by journalist Andy McNICOLL we seem to have information confirming what most of us working in this area already know: problems with timely admission to hospital are getting worse. That being the case, it seems highly likely that the number of police related problems will be rising too.  That’s certainly what my emails tell me!

LEGAL REMINDER

In case you haven’t seen the previous posts I’ve done or want a summary reminder, the legal problem is essentially this –

  • When someone is in police custody under PACE for an alleged offence, they can only be detained to charge them with the offence for which they have been arrested; OR detained because it is necessary to allow for efforts to secure such evidence.
  • Until an Approved Mental Health Professional (AMHP) makes a written application for someone’s admission to hospital under the Mental Health Act, PACE continues to govern the detention of the person detained.

These two provisions of PACE are absolutely crucial to this situation –

  • Section 34 of PACE – general limitations on police detention: in particular, you should look at s34(2) –

“If at any time a custody officer (a) becomes aware, in relation to any person in police detention, that the grounds for the detention of that person have ceased to apply; and (b) is not aware of any other grounds on which the continued detention of that person could be justified under the provision of this part of this Act.”

“Subject to section 41(7) below, if the custody officer determines that he has before him sufficient evidence to charge the person arrested with the offence for which he was arrested, the person arrested shall be (a) (i) released without charge and on bail, OR (ii) kept in police detention for the purpose of enabling the Director of Public Prosecutions to make a decision under section 37B below, (b) shall be released without charge and on bail but not for that purpose, (c) shall be released without charge and without bail, or (d) shall be charged.”

PUSHING THE ENVELOPE

In previous posts on the ‘no beds‘ problem, I’ve alluded to the fact that worry about the legalities of detention on the part of the police only kick in when the PACE ‘clock’ reaches the 24hr mark. This is not strictly correct, though – as two provisions of PACE show us and they follow on from the custody officer’s duty to keep grounds for detention under constant review –

  • If the person was originally detained because there was insufficient evidence to charge the person and the custody officer reaches a view that there is now sufficient evidence to charge the person, they must charge them or release them on bail (for CPS advice or other reasons, as they see fit) – this is in s37(7) of PACE.
  • If the person was originally detained because there was insufficient evidence to charge the person and the person is held because it is necessary to secure evidence, then the custody officer must release the person (either with or without bail) once that necessity ceases to apply – this is in s34(2) of PACE.

Nothing in PACE itself provides grounds to detain someone for a Mental Health Act assessment – so a vital question is ‘does conduct of that assessment contribute to the gathering of evidence, relevant to determining whether someone should be charged? Unless the answer is that it does, it returns us to our quandary!

MEDICAL NEEDS

Obviously, PACE Code C covers the detention and treatment of someone whilst they are held in custody and it has various things to say about those detained whilst suffering a mental disorder. It covers the need for appropriate adults, amongst other things. However, in keeping with the legal issues for physical healthcare problems, there are a range of options for the custody officer to secure assessment from an Approved Healthcare Professional – an AHP is usually a doctor or nurse working for a contracted healthcare provider to assist the police with medical opinion about those in custody and shouldn’t be confused with AMHPs mentioned above!  AHPs are generic healthcare staff who do fitness to detain / fitness to interview assessments in custody; AMHPs are (usually) mental health social workers who coordinate Mental Health Act assessments.

If someone in custody was arrested and then discovered after detention in the cells to have an injury, the police must either call for an AHP to attend custody and assess that person; or transfer the person to hospital (by ambulance if need be) should the situation not be something that can wait for the attendance of an AHP. So if the guy in the pub fight has possibly broken a finger whilst punching people, the AHP would assess that and may give him the option of waiting until release to attend hospital, having some painkillers whilst in custody or the arresting officers being asked to run him to the Emergency Department for an assessment / x-ray or whatever he requires.

If, following the call to the AHP or whilst that person was at ED, the grounds for detention change or no longer apply, the custody officer would act accordingly by ending or changing the grounds for detention. I’ve been the PC at the hospital who had taken someone there from custody and was told whilst waiting for treatment that the person was to be released from arrest for various legal reasons. Maybe the person arrested for assault is detained pending enquiries, statements and CCTV recovery and whilst waiting in ED, it is established that the victim of the offence does not with to complain of any assault and there is no other evidence? … the person is released from custody and he can then take his own decisions about his broken finger and whether to go to or remain in the ED.

PARITY OF ESTEEM

So is mental health any different, because of the potential that a person arrested may lack capacity to take their own decisions if released? We start from the position of presuming someone has capacity but we know the police encounter and arrest people in crisis and bear an obvious duty of care to ensure that person’s welfare to the extent that they lawfully can. But the PACE point remains: if the grounds for detention cease or change, the custody sergeant is obliged to act accordingly and then any subsequent questions about the welfare of a mentally vulnerable person become something that should be subject to other decision-making. So it is potentially quite possible that someone detained without charge for enquiries to be completed, could be released from custody if the grounds cease to apply notwithstanding that they are mentally unwell to an as-yet unassessed degree.

Imagine, for example, a young adult who lives with a relative: the police are called to a crisis incident in the home they share and upon arrival it is obvious the person is unwell and has assaulted the relative, quite seriously.  They are also in immediate need of care and because officers in private premises have no powers under the Mental Health Act itself, they arrest the person for the assault and take them to custody. MHA assessment is requested by the AHP because of the concerns about their health and the relative is giving information that supports the need. However, the relative is merely grateful for the police turning up and safeguarding the person, refusing to make any complaint of criminal conduct because they believe this has only happened because the person is ill and in need of help.

What are the grounds for detention now? – on what basis is the person detained for MHA assessment?! Assuming there are no further enquiries which could realistically be done to ensure there is evidence for an offence, s34(2) applies and the person should be released, either with or without bail. What happens around mental health assessment will depend on circumstances and goes back to the same kinds of considerations as officers would apply if the first encountered the person where there is no criminal allegation.

IMPLICATIONS

I re-stress the point: this is a thought-piece and I’m still thinking this stuff through after two very separate conversations following the PACE Strategy Board forced me to think about some stuff that I realised I’d assumed or taken for granted.  But all this begs a lot of interesting and potentially complicated questions for me, I must admit – and it does appear to have rather major implications, I’m afraid! – if PACE obliges the custody sergeant to release someone (under either s34 or s37, for whatever reason), should the officers then consider the need to rely upon s136 MHA after release?!

I can already hear objections to this: and I’ve acknowledged them myself in the discussions I’ve had before writing this BLOG with an AMHP friend of mine, some force mental health leads, etc.  The objection is normally, “How would you regard that person has having been ‘found in a place to which the public has access’ if they are only in that place because the police released them from custody. There are two points to immediately make here –

  • If this is a problem at all, it will only be a problem for about six months or so – the Policing and Crime Bill will change s136 to ensure it can be used in any private place that is not a dwelling. So it will be able to be used in police custody in the near future and the person can then be removed to a Place of Safety for the assessment, assuming other aspects of the definition for the use of s136 are satisfied.
  • But it may not be a problem! – some argue police custody is a place to which the public have access because it is expressly set up for receiving the public and lots of other locations are still such places despite access being controlled or restricted – like the ‘airside’ in airports. And even if it’s not, the circumstances of someone being in the police station front office or road outside are not because of any subterfuge by the police to create the situation – they were obliged to release the person from arrest!

And if this point is right: what would that mean for the use of s136 MHA, especially when the law changes next year?  But then what this does do – if it’s even vaguely right! – is ensure that people in police custody thought to be mentally unwell are not detained in police custody, where that is not necessary in terms of the criminal justice process. So this is an argument about de-criminalising the process of ensuring the health and wellbeing of people who do not need to remain in police custody, for reasons around investigation and prosecution.

FINAL THOUGHT

Of course, there will be some situations in which conducting a Mental Health Act assessment is a part of the overall criminal investigation and relevant to issues around securing evidence and potentially interviewing the suspect. I would suggest these will tend to be the more serious cases where there may be a need to prosecute someone in the public interest notwithstanding how unwell they may be. It is occasionally the right thing to do.

As said: this is a discussion piece – all views welcome, below.

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

Winner of the Mind Digital Media Award

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Para 16.16 to the Code of Practice

It turns out I didn’t read the new (2015) Code of Practice to the Mental Health Act 1983 as closely as I thought I had! The @LovelyClaireyA from Twitter said something recently about the execution of warrants under section 135(1) that didn’t sound right to me and I was grateful to learn something new after she pointed me to the Code of Practice – paragraph 16.16. This paragraph has no equivalent in the preceding Code, hence it gives rise to a few new questions; and so having made a mental note to consider this a topic for the future, I got on with my weekend. Within 36hrs of speaking to Claire, I received an email from a police control room inspector seeking clarification on the execution of s135(1) warrants after an operational incident in his force area. The job had caused a disagreement with the AMHP who was accompanying the officers in executing the warrant and I therefore thought I’d prioritise getting this done, since my general rule is that two or more things new to me in the same week means it’s probably occurring a lot more frequently and worth covering.

It all surrounds the question of conveyance from an address where a s135(1) warrant has been executed, in order to remove someone to a Place of Safety (PoS) for assessment under the Act or for arrangements to be made for that person’s treatment or care. The warrant, which can only be executed by the police, contains two legal powers: one to force entry to the premises, if need be; the other to remove that person to the PoS, if thought fit. Once inside the premises, the Code requires the AMHP and Doctor to consider (para 16.8) whether any assessment can occur there with the consent of the patient or whether removal is necessary. Historically, removal to the PoS has been best done in a non-police vehicle wherever possible and practicable; but police officers would normally remain involved until arrival at the PoS by physically accompanying the patient in the ambulance, or in whichever vehicle is used if no ambulance is available.

So what does this new paragraph in the Code actually say? –

“When taking the person to a place of safety on a section 135 warrant, the AMHP, hospital managers or the local authority (as appropriate) should ensure that an ambulance or other transport is available to take the person to the place of safety or to the place where they ought to be, in accordance with a locally agreed policy on the transport of patients under the Act (see chapter 17). It may be helpful for the AMHP to escort the person or meet them on arrival at the place of safety, in order to ensure continuity of care and to provide information for the hand-over. The police should not normally be needed to transport the person or to escort them for a section 135 warrant.”

GETTING PRACTICAL

This is saying – if Claire and I have read it correctly! – that upon entry to the building and following any decision to remove the person to a PoS, the police “should not normally be needed to transport or escort them” [my emphasis]. So, the AMHP (and paramedics) can lawfully do this, according to the new Code. Presumably, this also amounts to a legal process whereby, the AMHP and others could use reasonable force, consistent with keeping themselves safe, if the need arose during conveyance. I can hear the objections already and I understand them! – but this will come down to a distinction between what the law and the Code say (the law and the Code, not being the same thing!) and the reality of AMHPing and paramedicine, and their professional views about what they should be contributing to these situations.

I will come back to this question: if the MHA allows restriction of people made subject to the Act by professionals other than police officers, in what circumstances do professionals other than police officers use this powers, other than in situations which occur involving detained patients on hospital wards?

  • Meanwhile, in reality  – there is nothing unusual about discussions about what role the police should play in administering the implications of Mental Health Act when it comes to conveyance or restriction upon those who are subject to it. If an AMHP had conducted an assessment in the house and ‘sectioned’ the person, there is a common debate about how to convey the person under s6 MHA to hospital. The same rules apply: it should not normally be done in a police vehicle and, in reality, the AMHP should be able to arrange an ambulance but the police still find they are all too often connected to admission conveyance because no ambulance is available or because someone is resistant to admission. Remember: the Code of Practice does NOT demand police involvement purely because someone is resistant. Only where they are ‘violent or dangerous’. This situation is little different, in many respects.
  • Drafting of the Code – having thrown this topic about on social medica after discussion with Claire, some suggested there is confusion and contradiction in the drafting of the Code itself. Paragraph 16.3 informs us what the purpose of the s135(1) warrant actually is: it is to provide “police officers with a power of entry to private premises, for the purposes of removing the person to a place of safety for a mental health assessment or for other arrangements to be made for their treatment or care.” So if the legal power belongs to a police officer, can someone else discharge it if the police also disengage from the process? Some think not; however there are other, similar examples available where others have acted on behalf of a police officer, even though they’ve disengaged (see below).  If you look at paragraph 16.14 of the Code, it also creates a touch of confusion about who should be doing what, in this context.

WIDER IMPLICATIONS

So if something is ‘not normal’, in terms of frequency, what does that mean?! We can surely start by agreeing it probably means, ‘not most of the time’? Could we go even further and agree it should happen on a minority of occasions, perhaps only where certain criteria are met? The overall idea from Chapter 17 of the Code (which covers conveyance) is the police should be involved in the conveyance of a person only where they are ‘violent or dangerous’. This is where my inspector colleague on email found that he had done what the Code suggests only to bump up against an AMHP who would have preferred the Code be disregarded in the circumstances. Having entered the building and a decision having been taken to remove the person to the PoS, the police withdrew from the incident and suggested the AMHP should make the necessary arrangements to convey the person.

So that brings us back to what a Code of Practice actually is – I remarked many years ago that we all too often see the Code as some kind of vital document that cannot be breached. Yet when it is convenient to argue so; it is something that is quickly set aside – many examples are available to highlight the contradiction this represents and this situation is just another example of the latter. Conveyance of resistant individuals all too often involves the police where they are neither violent nor dangerous because, quite simply, there is no other arrangement by which to do so. No planning takes place (that I am aware of) to ensure that AMHPs can call upon the necessary, non-police support in these situations. There are still long delays for ambulances; there are usually no other conveyance mechanisms and there are certainly no other staff who could assist in supporting a resistant, frightened patient without potentially terrifying them by calling the police. Why? – do commissioners and managers not ask themselves “If the Act or Code says this, what does that mean in the real world and how would we actually get it done?”

This kind of discussion emerged in Hampshire a year or so back when the MH Trust and the police commissioned a service to ensure that officers who had used s136 of the Mental Health Act could handover the care of someone at the point of arrest –  whilst still in the street – to trained staff who would then remove the person to the Place of Safety (on behalf of the Chief Constable) and remain there (on behalf of the MH Trust) to ensure the wellbeing of the person pending assessment. Then, as now, some questioned whether or not the first part of this would be lawful given the same argument: it is a police power to remove the person to the PoS, so can it be delegated where the Act itself does not explicitly say so? Well, there are various other situations in which police powers are delegated to others, so why not s136 MHA? – why not s135(1) MHA, especially as the Code seems to be encouraging it. The relevant services in Hampshire are certainly satisfied, on legal advice, that it can.

Let me conclude with this remark: I didn’t write the Code and as far as I’m aware, the police didn’t offer a contribution in the consultation for the Code that something like this paragraph be included! Nevertheless, it seems we now need to start talking about it because the Munjaz case (2005) reminds us that we should only be breaching the Code of Practice if there are “cogent reasons for departure”. The poor AMHP in my colleague’s situation probably thought, “How on earth do I get this done, if the police don’t or won’t help?!” That probably amounts to a cogent reason for them as an individual professional but back everything comes to strategic planning and joint operating protocols: has every area updated their local protocols on MHA assessments in private premises and / or conveyance since 2015 to specify how this stuff gets done along with commissioning managers making the necessary policy changes to ensure that AMHPs aren’t in that position in the first place? … and if not, why not?!

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

Winner of the Mind Digital Media Award

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Threatening Patients

When I was a young boy, I can vaguely remember my dear Godmother once saying something about calling the police if I was naughty, saying the police would “take you away”. Without missing a beat, I remember my mother responding quickly and firmly, “Don’t say that to him!” She went on to explain that the police do not, in fact, take kids away for being naughty; that she needed me to understand that a police officer is somebody I can go to for help if I was ever stuck or in trouble; and that she should never, ever say that to me again.  WOW! 😳

It is probably this incident that accounts for my hatred of hearing adults say similar things to their kids. I’ve been known to be the policeman who kneels down next to kids and says, “What you’ve just been told isn’t true – we don’t take young children away from their parents for being naughty because police officers are there to help you and protect you if you’re in trouble.” I then usually explain my reasons to the parents and ask them not to do it in future, because they would probably agree that if I saw their child in danger, they would want them to ask me for help and they would expect me to give it. Hard to do that if the kids are running away, frightened of me.

So there’s a version of this in policing & mental health land and it’s occured enough times this week, in various scenarios, that you will have to let me get this off my chest!

WASTING POLICE TIME

A Twitter conversation this evening has revealed that @MindourMinds has documented six recent examples across England of patients being threatened with arrest for wasting police time, following apparent suicidality. This is not the first time I’ve heard of this and just to be crystal clear: it’s not the police threatening to arrest and prosecute patients – it’s apparently mental health professionals. I regret to confirm I have heard of one example of such a case being brought but, quite rightly (I’ve seen many of the legal papers) it was dropped at court for being fairly ridiculous.

Wasting police time is a criminal offence, of course: but it is highly unlikely that any incident of suicidality, including any attempt, would be considered an example of it. The legal definition is within s5(2) of the Criminal Law Act 1967, “Where a person causes any wasteful employment of the police by knowingly making to any person a false report tending to show that an offence has been committed, or to give rise to apprehension for the safety of any persons or property, or tending to show that he has information material to any police inquiry, he shall be liable.”

“Wasteful” … and “knowingly making a false report”. I admit I’m struggling to understand how a patient ringing mental health services and claiming to be suicidal is a waste of police time? Even if the CrisisTeam felt obliged to then seek an urgent ‘safe and well’ check because of concerns for that person’s immediate safety; how do you prove that this was ‘wasteful’?! But of course, finally: even if the patient actually had told a blatant pack of lies to encourage MH services to provide some kind of service or to facilitate admission to hospital – even then: it wasn’t the patient that rang the police and caused their ’employment’, wasteful or otherwise. 

INHERENT CONTRADICTION

So it’s highly doubtful that there would be sufficient evidence to charge someone in these circumstances and I’ve only known it happen that once – it was dropped at court. How do you prove beyond all reasonable doubt that a person with mental health problems who claims to be suicidal, actually isn’t?! … you can’t prove a negative, as they say.  Even then, there’s the requirement to show that person caused wasteful employment of the police by making a false statement if concerns by healthcare staff were serious enough that they rang the police to check on someone’s welfare?!

That’s the inherent contradiction here: the person ringing mental health services is either making a false claim in which case there’s no need to ring the police; OR they are not, in which case any deployment of the police by other services is not ‘wasteful’ because the concerns have been taken sufficiently seriously to warrant the police!

So: if you are a mental health professional wrestling with these issues, do consider what would need to be proved in a court in order to go down this legal route. Otherwise, if you make these kinds of threats, you risk looking silly if it turns out the police won’t take the action you were hoping for. Of course, CrisisTeams can call the police for any reasons they think legitimate. Whether or not the police then actually do as they’re asked, is quite another matter. It has been a feature of policing research for years (see Policing Citizens by PAJ WADDINGTON) to note that police officers do not have an inherent service-provider relationship with those who call them. They may assess a situation and take the view that the caller is in the wrong and the ‘accused’ is acting perfectly properly.

The police are NOT on anybody’s side – all circumstances turn on their individual merits. 

THREATENING THE POLICE

Meanwhile, in another incident a service-user who has given permission for me to refer to this, was asked to attend a meeting without a clearly defined purpose. Suspecting it would be a Mental Health Act assessment for potential admission, they exercised their right not to attend, for various reasons that are important to them. When they failed to show up, a phone call followed in which the assessment was rescheduled and they were told that if they failed to attend on the next occasion the police would be called. This is not the first example of such a story I’ve heard over the years and I admit it also makes me feel very uneasy.

The problem with this is several-fold: firstly, what are they hoping the police will do? The obvious point to make is that any agreement by the police to attend the person’s home address means creating a situation in which the officers have no legal powers. So unless the request was being described as an urgent welfare check, necessary because of fears for someone’s life, the police could only ever knock the door and see what happens. Secondly, if there’s no reply, the officers would walk away; and if there is a reply, they can only convey the message that has already been conveyed. Thirdly, it is not a criminal offence to fail to attend an appointment with mental health services, even if it is a statutory assessment under the Mental Health Act; and officers would have no MHA powers because the person is in private premises. So why wouldn’t mental health services arrange to attend the address themselves whilst armed with a warrant to enable entry and an assessment that the police are then obliged to cooperate with?

Either way: it’s the implicit assumption that the police are a coercive arm of mental health services, to be threatened and deployed at their whim that bothers me here. It is fair enough to comment that a mental health professional may feel obliged to report a situation to the police in certain circumstances, even with their recommendation or request: but it’s ultimately for the police to decide whether the police get involved and on what legal terms. This is especially true where there are issues around criminal investigation and prosecution.

CARE AMIDST COERCION

There are various circumstances in which threatened coercion is inappropriate and this is made clear in the Code of Practice to the Mental Health Act. When it comes to the issue of patients being admitted to hospital, the Code specifies (para 14.17) that no-one should be told that if they do not agree to voluntary admission, they will be sectioned. The same applies (para 27.38) to voluntary patients who are already admitted: they should not be denied their right to leave a mental health ward under threat of being ‘sectioned’. The Care Quality Commission has referred to these kinds of situation as de facto detention – and they caution against such situations on both ethical and legal grounds.

Attempting to promote patient cooperation with a statutory assessment by threatening to call the police also creates a similar, but in my view, slightly the more sinister situation. No-one is obliged to cooperate with mental health services, unless the requisite legal frameworks are put in place, either to assess or treat their condition. If I, as a police officer, am to respect patient’s autonomy and liberty, I don’t really want to personify a threat made that I may disagree in which I’m refusing to play any part. It’s also not for mental health professionals to determine that a situation certainly amounts to an offence that could be prosecuted. I can’t help but recall the incident I encountered about a decade ago where a mental health nurse rang the police to complain of criminal damage by a patient only for my investigation to reveal unlawful detention by the nurse and the mental health services she worked for.

If the police are to be the guardians that many want to see them be, it means standing up for the rights and autonomy of patients as well as appropriately supporting mental health services. But as I said: the police are not actually on anybody’s side here!

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

Winner of the Mind Digital Media Award