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Draft Mental Health Strategy

This is an opportunity to comment upon a draft strategy for policing and mental health, which is being put together by Chief Constable Mark Collins, the National Police Chiefs Council lead on mental health.

Please feel free to distribute this public document around as you see fit, including on social media or within any organisation to which you are connected if they may have an interest.

In addition to circulating this formally to partners and encouraging  even further circulation by them, we are putting this out on social media as the quickest way of securing broader public feedback and in order to distribute it as widely as possible to frontline professionals  in policing and other public sector agencies who might not see it through official channels.

A few explanations of the document which is linked below –

  • It is just a plain text format word document – the final edition will be a colour document that looks much more professional than this. Feedback is requested on the actual content.
  • Consultation within the police service brings us to this penultimate draft – we are not aiming to highlighted every issue that could be mentioned; but to focus on some key issues whilst laying down some important principles and objectives.
  • The purpose here is look longer term and to shape the role of the police service in our wider system of public service – did we get this right?

For various reasons, I’m afraid the turnaround for any feedback is regrettably tight, should you wish to offer your view.  If someone would like the document in a different format, please contact me on the email below.

DEADLINE – Wednesday 25th April 2018.

You can either leave a comment below, as I will take them all in to account, or leave feedback more formally via my College of Policing email address –

michael.brown2@college.pnn.police.uk

Please click here – Draft National Strategy on Policing and Mental Health.

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

Winner of the Mind Digital Media Award.

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Beds and Stuff

It was being asked again last night, in the AMHP social media world as to whether Britain had run out of inpatient psychiatric beds. Obviously a difficult night to go out AMHPing, at least in some parts of the country. Over the last two weeks, I think I’ve been asked about four different scenarios where a massive bed hunt was going nowhere fast, three of them related to the detention of children. In some of those cases, detention by the police under s136 led to a fairly quick assessment of the person detained and for a decision to admit to be easily reached: only for it to then be made known that the relevant kind of bed for that patient is at least six days away.  There have been other examples prior to this recent flurry, of course: it does tend to suggest we’ve got proper problems.

Where things get really difficult, there has been an increasing practice for mental health services to use the place of safety room itself as an improvised ‘bed’.  ANd before I go any further at all, I want to point out this is not an example of me choosing to put things in the public domain that aren’t all ready there – just see social media for details!  So for example, a person is detained by the police under s136 and taken to the place of safety for assessment which concludes that detention under the Act is required. However, because of there being no bed, the application is made to the hospital where the MHA Place of Safety is and the patient moves nowhere, but metamorphoses from a s136 detainee, to a s2 MHA patient without moving an inch.

Other versions of this practice have occurred where a person is originally arrested for an offence and taken to police custody, but then ‘diverted’ from justice under the MHA to a Place of Safety facility, not under s136, but under s2 itself as a detained patient. There the patient remains under quite unique circumstances until a ‘bed’ becomes available at whatever point and they are transferred (s19 MHA). In one example last year, a young person admitted under s2 to a PoS remained there for several days until a proper inpatient bed became available and, of course, during that time all s136 detentions of subsequently vulnerable people had to go elsewhere.

LAWFUL OPTIONS

One thing to say about this upfront: at least it’s all lawful! Pressure to admit patients, especially from police custody, often arises because timescales to secure a bed exceed those allow by law for doing so. If someone is detained under s136 MHA, the AMHP and DRs have just 24hrs to make the necessary arrangements for that person’s care, including admission, if required. If no application has been made for someone’s admission to hospital under the Mental Health Act, they are free to go after the 24hrs expires. This is also true if someone was arrested initially and assessed under the MHA in custody.

Finding a bed in a timely way, is vital in order to prevent the situation becoming a human rights violation. Holding someone without a legal authority is an Article 5 violation (the right to liberty); releasing a suicidal person when you are under a legal obligation to detain them could well amount to an Article 2 violation (the right to life). There are other violations that may apply, for example where protracted detention before admission could amount to an Article 3 violation (inhumane and degrading treatment). This was actually a finding in the MS v UK ruling in the European Court in 2012.

In order to avoid such a mess, forcing through an admission by using a Place of Safety on an improvised basis is an option that some areas are resorting to, sometimes with police support. As I said: at least it’s a lawful way to progress! … it’s progress of a kind. But it’s not always seen as a choice a between a lawful or an unlawful option: these kinds of improvised solutions to bed problems are, obviously, unsatisfactory. No-one would want a patient detained in a place of safety where better options existed; but police forces are right to consider asking whether these solutions could be considered. Why not improvise a lawful solution that protects the patient’s fundamental rights and get closer to what we’d all want for them that ongoing detention in custody?

UNLAWFUL OPTIONS

So the problems emerge if it is thought unconscionable to release someone where they are known, for example, to be actively suicidal or a risk to others and where no-one is able or prepared to improvise. Requests have been made in some cases for the police should either keep someone in custody (if they were originally arrested for an offence at we ran out of time to ‘divert’ under the MHA) or that the police should help to keep someone at the Place of Safety even though the 24hrs to make arrangements has run out. Where there are no other options at all, then it may come to that invidious decision – do we unlawfully detain to keep someone safe or do we release them and follow them up later when a bed is found?

This should be an absolute last resort decision, borne of some desperation.

It’s not really last resort territory if we’re looking at things through the ‘ideal’ versus ‘non-ideal’ lens. Last resort is whether we choose the ‘lawful’ or the ‘unlawful’ option when we’ve only got these two left to choose from. Remember, all public authorities have a positive duty (s6 of the Human Rights Act 1998) to ensure the European Convention Rights of those to whom they owe a duty. The ‘unlawful’ choice to breach someone’s fundamental human rights should not be the decision, unless it is unavoidably forced upon us. Anything else is better and this shouldn’t really need to be said, should it?!

My final point here is: every time this happens, it creates a knock-on difficulty and just shifts the pinch-point around the overall system. It will continue to do so unless we alleviate the need to improvise in this way. And ultimately, it all comes back to factors way outside the control of the police but whilst leaving them responsible for decisions that were taken in strategic healthcare meetings months prior to the pressure. What is perhaps most interesting to me is the apparent assumption that the police always can and always will to expend resources remaining with patients for days on end whilst beds are found. Not only can the legal issues outlined above be compelling, managing overall demand at a given time may mean the ongoing detention of someone who should, by then and by law, have been safely detained in NHS care is not the biggest priority they face.

It’s again time to decide what the police are for and whether we value fundamental human rights in practice as well as in theory.

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

Winner of the Mind Digital Media Award.

The 136 in Custody Thing

I said about eighteen months ago, that once the Mental Health Act was amended to unambiguously allow the use of s136 of the Act in any place that was not someone’s home, we’d see police officers considering its application in police custody areas, for a range of reasons. This post is mainly for police officers and mental health professionals working in or around police custody during criminal investigation. If others want to understand some of the legal issues within the post, see some of the other resources on the BLOG to understand the Police and Criminal Evidence Act 1984 (PACE) or the amendments to the Mental Health Act 1983.

This post is about when, if ever, a criminal suspect should be released from detention whilst under investigation, in order to be diverted to the mental health system. There are two scenarios I have in mind, broadly speaking –

  • A way of safeguarding someone who suddenly and unexpectedly indicates an intention to end their life just as they are being released from custody as part of an ongoing investigation.
  • It could be used where PACE grounds to hold someone have expired (see s34 and s37) but where there is an ongoing need for some form of MHA process – either an MHA assessment by an AMHP and DR; or where someone is awaiting admission.

There are a few version of this second idea, varying by way of timing – at which point should a decision be taken to suspend PACE and implement s136, but for the ease of initial explanation, let’s just take the broad idea.

For what it’s worth, I think there is merit in giving the consideration to these things, because they do have the potential to offer a form of solution to certain historic problems, even if it is a short-term solution. But that’s not what this post is actually about! – this is about the problems opened up, especially where officers are too quick to push for this; and especially where the grounds for doing so are actually not met.

BACKGROUND

The majority of people who are taken to police custody who are then identified (on whatever basis) as having some kind of mental health condition are not then assessed under the MHA for potential admission to hospital. So first things, first: the fact that someone is thought to have some kind of mental health condition should not mean we suddenly start issuing urgent bail from custody, suspending criminal investigations and shouting for a Place of Safety. Apart from anything else: the grounds for using s136 in these circumstances would usually not be met; and for most people, it would be a complete waste of time anyway: they’d soon be discharged with little more than a letter to the GP.

The number of people assessed under s136 who are then identified as requiring specialist mental health services (which would include any admission to hospital), is a usually less than half. Most people assessed under the MHA are not admitted to hospital and any mental health care they require can be organised by Liaison and Diversion Services (LaDS) in custody – 85% of the population of England is covered by a LaDS. So for those who are arrested and taken to police custody and may be lawfully detained there under PACE, a good LaDS can ensure the healthcare needs of people under arrest are met unless the person needs to be ‘sectioned’, in which case they would need to call upon an AMHP and Doctors to undertake the statutory MHA assessment,

There is also a practical reality here: if the police start shouting for s136 for any arrest where the suspect says they have depression, the Place of Safety system will soon grind to a halt, because in some areas it isn’t exactly free-flowing to start with! Areas usually have a finite capacity in their PoS system and police forces do need to be aware that the history of s136 is a perception by many that the power is over-used already, this could potentially make that even worse. Section 136 isn’t about getting complicated suspects out of custody, not least because that suspect may indeed be criminally responsible for the offence they are alleged to have committed and natural justice may demand there still be the kind of CJ disposal that anyone else would receive for similar conduct.

THE DECISION TO 136

First obvious point: if you are going to even think about an approach that means someone is released from police custody and detained under s136, you need to ensure a couple of fairly obvious things.

  1. Are there ongoing grounds under PACE to keep the person detained? – where PACE grounds continue to exist, nothing prevents an FME assessment, a LaDS assessment or even a statutory MHA assessment occurring in police custody, as it always has. So if we are still securing and preserving evidence and / or seeking to obtain evidence by questioning and where we have not yet reached a view about whether immediate prosecution will be required, why would we think of ending detention unless someone’s health was so bad that they were unfit for detention in custody? Nothing prevents the two processes running alongside.
  2. Are the grounds for use of s136 actually satisfied?! – this should be beyond obvious and barely in need of being stated, shouldn’t it?! But does that person appear to a constable to be suffering from mental disorder and to be in immediate need of care or control, in their best interests or for the protection of others? If the actual grounds for detention under s136 are not met, then this whole debate is a non-starter.  If the kind of care that someone needs is available in custody whilst someone remains lawfully under arrest, what’s the point?

Putting the these things together, you will usually need a collision of the two circumstances: a genuine difficulty in further justifying detention under PACE; along with a healthcare situation believed to be sufficiently serious in its own right to justify the use of s136. The exception to this, of course, is where someone is so ill, it is a medical emergency, they are unfit for detention in police custody and need to be urgently transferred to A&E.

Otherwise, absent one or both of these factors: we shouldn’t, by law, be thinking of it. And what useful purpose would it serve, even if it were lawful?!

UTILITY

There is no easy dividing line between mental health and crime: not because they are the same thing, obviously not. But because the boundaries each are not easy to define and some behaviours at the edge of each are overlapping: simultaneously demonstrative of a serious mental health condition and a contravention of a country’s criminal code. Public policy tends to suggest we should approach the overlaps and in the UK this is by arguing that we should only criminalise people for more serious offences or where broader public safety is at stake.

So the police have an important role to ensure balance in the application of public policy:

  • We don’t want the police to fail to bring to justice those who have offended where a mild or moderate mental health condition has in no significant way affected their liability for their conduct.
  • We don’t want the police to criminalise seriously unwell and other vulnerable people for minor crimes that were situationally related to their condition and the context of an incident.
  • We do want the police to protect the public from those who pose a much more significant risk to the public in order to allow the criminal courts to make thorough assessment of how we balance that patient’s right to treatment with legal frameworks to ensure public protection.

Does it get more interesting or more complicated than this in ANY area of public policy?! << I have to admit, I don’t think it does. As Professor Jill Peay says, professionals operating at the interface of mental health and criminal justice are undertaking some of the most complicated work of any individuals in those professions. But this also means is vitally important stuff: these decisions can be the sorts of things, in extremis, that contribute to suicide and homicide, so they should always focus the mind carefully and be subject to sober judgement.

We need to think REALLY carefully about the potential for us to take premature decisions: if we’re shutting someone out of immediate access to the mental health system because they are alleged to have offended, is that a proportionate response to the alleged offence and how detrimental may this be to their health? If we’re shutting someone of the criminal justice system because they have a mental health condition, is it one which is sufficiently serious to require urgent assessment ahead of any other consideration about an offence they may have committed and this risk this poses?

All cases on their individual merits.

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

Winner of the Mind Digital Media Award.