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Obligations, Opportunities and Options

This debate about police legal duties in mental health wards continues: I’m on a train to London as I type for further meetings to discuss the legal advice the College of Policing have received from a QC on this topic. We fed in a range of questions and concerns about the legal duties of police forces in a variety of contexts where incidents on wards may involve disorder or disruption. Some of these hypothetical questions involved weapons and crimes, others did not. We asked about the relevance of NHS intentions: are they ringing the police to report a crime, ask for assistance in restoring safety when control is lost; or both. It’s proving to be extremely interesting stuff, from my point of view.

In case of any doubt, legal duties means those things the police are obliged to undertake and where there could be criminal, civil or disciplinary liabilities for the officers or the Chief Constable if they did not attend to them. This should be distinguished from what we might (badly) describe as a moral duty – those things that some may argue is an obligation falling to the police bearing in mind the various ways in which to approach ethical issues. The advice is twenty-four pages long and this is what I think it says in a few bullet points –

  • The police have a legal duty to investigate allegations of crime brought – this does not amount to creating a duty to attend a particular location or to attend it immediately. Any decision to give an emergency response would be as a result of other factors within the incident.
  • The police have a legal duty to protect life and the right to life – where this is at risk, they have a duty to respond and this could include, for example, that the crime is in progress; someone is seriously injured or could be as a the result of the incident involving a weapon. (This list is not exhaustive.)
  • The police have very few legal authorities which are exclusively theirs – powers under the Police and Criminal Evidence Aact 1984 around arrest, search and seizure are reserved to police but s3 of the Criminal Law Act as well as all those opportunities under the Mental Health or Mental Capacity Acts are available also to healthcare professionals.
  • The NHS have legal responsibilities of their own – to their patients, their staff and to anyone else who walks on to their property to create a safe environment; to have health & safety procedures and risk assessments to mitigate foreseeable risks and those risks must be assessed in the context of the kinds of services mental health trusts provide.

This raises important questions: essentially the message is one that I’ve pushed on this BLOG for several years – in that regard, I was quite pleased to read the advice because I’m very far from being a QC and the main learning for me was the specific stated cases which amplify the arguments I’ve put for some while –

If you are in the professional business of detaining other human beings against their will and then forcing them to remain in a particular place you have to prepared for the need to prevent them from leaving. This will occasionally involve forcing people to receive medication they may not want and where that involves restraint or transfers to other wards or units, then you should plan and prepare for the reality of what it will take to achieve that. It will mean you may have to physically take hold of people and will give rise to other questions about things like the training to be required for NHS staff and the transportation to be used, etc..

OVERDUE DISCUSSION

What I will put out there for discussion – because we are going to need to discuss this, folks! – is that some mental health professionals who are following the debate have said that it’s really important that police services continue to support and work closely with mental health trusts. I need to address this directly: firstly, it’s such a generalised, bland statement that no-one could reasonably object to it! … but nor does it tell us anything. Remember, whilst the police service is a partner organisation in a meeting room, the 999 operational officers who attend incidents aware independently attested legal officials who exercise a considerable discretion in the execution of their duties. There is a limit to what a police inspector in the BLOGosphere or a Chief Constable in a policy document can direct and commit officers to do where they are inclined to choose another, less restrictive and perfectly lawful option.

But secondly, it often seems to me to be a highly euphemistic hint that we don’t disrupt the apple cart – perhaps because this is difficult, sensitive stuff? I know some have wondered whether this whole affair is the police saying “We’re not coming!” Indeed, I received an email from a psychiatrist who demanded to know the authority that the College of Policing have to undertake this work and asking whether we are arguing someone has to be hurt before the police will attend a ward? … it is often pointed out that police officers come equipped with stab-proof vests, incapacitant sprays and Tasers, as well as personal safety training so we should attend where there are risks being reported. 

There are just a few things to say about this –

  1. Except where the police are exercising their legal powers around criminal investigations or where they are managing serious risks to life, which would usually (but not always) involve some kind of criminal offence; they have no legal powers beyond that which mental health professionals have available to them already.
  2. Otherwise, those equipment would be considered anathema to mental health professionals for incidents which are about the treatment and care of of patients. So if mechanical restraints are a bad thing and NHS trusts don’t supply them and train staff in their use, why would staff call for them to be used by others in connection with treatment and care?
  3. The only extra dimension the police bring to a restrictive treatment situation is personal safety training – but we know that the NHS can chose to give such training to their staff and to a very large extent, if it chooses not do so, this is a matter for the trust and CCG concerned, as well as the CQC. It doesn’t automatically trigger a legal duty for police officers.

Finally, let us remember why the apple cart needs disrupting and why this discussion must occur: there have been several inquiries in just the last couple of years that require the police service to get in to this. The ADEBOWALE Report (2013), the Home Affairs Select Committee report (2015) are just two I could list. You’ll see concerns about police officers on mental health wards within the suggested amendments to the Mental Health Act 1983 because MPs who are high profile campaigners on mental health have tabled it directly. Organisations like Black Mental Health UK are right to raise concerns about the deployment of officers with very different equipment and approaches to what are essentially clinical incidents. You’ll also remember that there have been two high-profile deaths of mental health inpatients in contact with the police whilst detained under the MHA and in each case both the police officers and NHS staff faced criminal investigation because of the mess that the whole thing represented. We shouldn’t also forget the homicide of a mental health professional after a patient returned from authorised MHA leave with a large knife and fatally attacked her – so we need to ensure the police attend what they must, but that they don’t become inappropriately engaged without a way to hand back responsibility for clinical care to the healthcare provider.

The stakes on this could hardly be higher than the need to ensure people stay alive, hence the need to make sure we get this right and it would be foolhardy to keep doing what we’ve done before knowing it is predicated on false understandings of duties and obligations and has led to the consequences we’ve already seen. If we want to create an environment in which the police recognise where their role does extend to attending wards to support NHS staff, we also need to do this by ensuring the NHS don’t unwittingly create conditions in which the police is taken for granted by routine requests to undertake tasks that the NHS is legally obliged to prepare fora nd which the police service has neither a legal nor a moral duty to undertake. There is a line to be struck here and a need for everyone to look at their understanding of things: but we cannot avoid the reality that we must do so within the framework of the laws that govern us all.


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

Winner of the Mind Digital Media Award


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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.


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

Winner of the Mind Digital Media Award


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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.