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Regulation 28 Reports

In December, I spent a very enjoyable afternoon absorbed in reading the detail of a twenty-odd page judgment from a Coroner’s Court. It followed a situation where a man walked out of an ED Department and ended his life on a railway line not too far away from the hospital. The Coroner had no concerns about the police response to the report that he had left the ED, because there was no real way of knowing where he had headed towards and it is known he had died by suicide so soon after leaving that it would have taken quite unlikely luck for officers to have stumbled across him. The real interest in the judgment was the way in which the Coroner looked at the nursing and medical staff in ED – how did they triage the suicidal risk the man posed, how did they communicate and react; what more could have been done?

I’ve just read a newspaper article from Exeter following another recent Coroner’s finding. A patient who was admitted to a medical ward after an acute asthma attack was assessed for mental health problems whilst on the ward and decisions were taken first of all, to transfer her to a mental health unit. Later, that decision was reversed and she was to be discharged home for community support. Somewhere in there, s5(2) of the Mental Health Act was used to detain her but confusion appeared to reign about when that power came to an end. Following this, the patient left the ward claiming she was ‘informal’ – and therefore, allowed to leave.  She subsequently took a paracetamol overdose and died five days later.

In these cases, and plenty of others besides, Coroners can issue what are known as a Regulation 28 ‘Preventing Future Deaths’ (PFD) report. The intention here, is to demand responses and development by organisations where Coroners reasonably believe the learning from that particular death needs to be more widely absorbed – either by the other professionals working for that organisation; or by all professionals undertaking those roles across the country. The relevant agencies are obliged to provide a response to the Coroner to outline what they intend to do. You can see individual PFD reports (they can take a few months to be uploaded after findings) and learn more about the work of HM Coroners on the website of the Chief Coroner, including an annual report on their work.

ACUTE TRUST HOSPITALS

These are just two recent cases – there are more where similar issues are raised.  I remember some years ago, other EDs being criticised by Coroners after vulnerable people walked out.  If you ask any of the many police officers active on social media around mental health, you will see that many of us really do believe the EDs think they’re covered if they just make sure they call the police quickly once someone leaves. This is not necessarily true! – as the first case I’m alluding to makes clear, even a diligent, quick response is not always enough to ensure that someone is found. So calls for the police to ‘bring someone back’ might be an intervention too far down the line.

It really might be necessary to stop people leaving in the first place. Also of relevance, it would seem, are the human rights implications from cases like Rabone and another v Penine Care NHS Foundation Trust (2012) – a case where a vulnerable patient left a mental health unit and where it was found that even though a patient may have been admitted an a voluntary basis, available risk information may mean it’s necessary to take steps to prevent that person from leaving. Melanie Rabone’s family won a challenge that her Article 2 right (to life) had been violated where this did not occur.

So all professionals in acute hospital trusts need to understand the legal frameworks that apply – and the Exeter Coroner raised the next obvious point: training. Staff need knowledge of mental health, including mental health law, to discharge their duties correctly and as the news article made clear: there was no obvious reason why Wendy Telfer could not have been prevented from leaving under s5(2) MHA. It is only fair to Royal Devon and Exeter Hospital staff to point out that there was a Devon Partnership Trust nurse on duty in that ward, as part of Ms Telfer’s care (which may have meant that s5(4) could have been used by him.  Either way – there were shortcomings perceived by the Coroner!

WHAT ARE THE OPTIONS

As ever, there are only three broad options we need NHS staff to know about, either in ED or on medical / surgical wards –

  • The Mental Health Act 1983 – what powers do nurses and doctors have on the wards or departments where they work, under the MHA?  In summary, ED nurses and doctors have none, but may consider asking the police to apply s136; medical / surgical ward doctors can use s5(2) MHA; mental health and learning disabilities nurses can use s5(4), if they are present; nurses and doctors working where s5 MHA powers may be used, should not be calling the police to use s136, according to paragraph 16.20 of the 2015 Code of Practice MHA (England); according to paragraph 16.25 of the 2016 Code of Practice MHA (Wales).
  • The Mental Capacity Act 2005 – what authority would this afford a decision-maker? It will depend upon the particular medical circumstances and the risk someone poses to themselves; it may also depend on whether or not any existing framework is already in place under the MCA, like Deprivation of Liberty Safeguards. But certainly, the Mental Capacity Act affords NHS staff some scope to take urgent decisions in someone’s best interests, where they lack capacity to do so for themselves because of an “impairment of disturbance of the mind or brain”. Such decisions can include restraint or an urgent deprivation of liberty, where the criteria are satisfied for doing so.
  • Common Law – regardless of those two frameworks, Lady Hale reminded us “the common law doctrine of necessity has two aspects, there is a general power to take such a steps as a reasonable and proportionate to protect others from the immediate risk of significant harm. This applies whether or not the patient lacks capacity to make decisions for himself.” Munjaz v Ashworth Hospital Authority (2003).

Obviously, the police have further powers under criminal law and to prevent a Breach of the Peace, but the main point I’m making in this post is that Coroner’s are telling us we need to know more about how to stop being absenting themselves where there is an obvious risk. Those are one-sentence summaries of things and there is obviously a further level of detail to be absorbed and various practical implications that result; but these are the things on which it seems Coroner’s are wanting NHS staff to have training. You can find more detailed explanations of these laws elsewhere on the BLOG – use the ‘How To Use the Blog‘ page to help you, if you’re interested in learning more.

SAFETY ISSUES

It is obviously fair and not at all unreasonable for NHS Staff to ask the question about their own safety: most nurses and doctors did not train in their profession to end up rolling around the floor with someone making a concerted and aggressive attempt to leave.  So what do we think about the important point of staff safety?  It comes back to discharging duties and responsibilities under the Health & Safety Act 1974.  All of the organisations for whole nurses and doctors work, have statutory responsibilities around creating safe systems of work, planning to mitigate foreseeable risks and providing training.  The legal duties owed under the Act are owed by hospital managers not only to their staff, but also to patients and to anyone else who may enter their premises, including police officers or paramedics, amongst others.

In other words, in considering the type of health service that they are endeavouring to provide, managers should be considering the likelihood of these issues.  How likely is it that ED may see someone walk out after triage where MH or suicidal risk is known? How likely is it that a medical or surgical ward may have someone admitted who also has MH problems and may try to leave? If either of those things occur, what is the requirement on staff, what training do they have around MH law to make their decisions; on what support can they draw to help them, given that we all understand concerns around safety given the type of role that those staff are performing? What role would hospital security play – how are they trained and briefed to support? What role do the police play and do staff of all kinds understand when / how to engage them in these matters – let’s b clear: their role should be limited, but officers have to realise they have a role.

The Coroner’s Regulation PFDs keep on coming – one accusation which can be placed at the feet of NHS and Police services, an observation that is made by the charity Inquest, is that lessons are inadequately learned across the country, where avoidable deaths occured elsewhere. How do we ensure that all EDs learn lessons from each other; that police forces learn lessons from each other – and that partnerships between services learn lessons from other partnerships! One way we can start to do that, as individual professionals, is to get interested in looking at care and risk from a legal, and not just a clinical point of view.


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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Three Months … and Counting!

This year, the Mental Health Act 1983 will change. It will be amended (during April, we think) by the Policing and Crime Act 2017* and by the time we sit here early next year, we will know far more about how we’ve coped with it all, but there are plenty of indicators around that we are not at all prepared for or sighted on these changes. So with three months to go ’til this all kicks in, it seems timely to loudly re-bang the drum lest we risk seeing police forces and mental health services having some really difficult conversations at 0337hrs on some Tuesday morning in early May. I’m nervous about all of this, quite frankly. Some areas are struggling under current laws and these amendments only make things far harder for the organisations involved. However, they should make things much better for the public and that, of course, is exactly the point – we’re talking about the liberty of vulnerable people here!

For the avoidance of doubt, the amendments to the Mental Health Act are almost exactly as they were originally introduced to the House of Commons in 2016 – little has changed during the Parliamentary process so it’s fair to point out that we’ve all had a year already to start preparing for this. I have emailed forces with considerably more detail than I am going to put in this post around three months ago, to point out we were six months out and needed to start partnership discussions if we hadn’t already. I know some forces have done exactly this and have written plans they are working towards completing in adequate time. I know others are nowhere on this – sometimes because they’ve tried to raise the point, but haven’t been heard.

Some forces are still detaining hundreds of people a year in police custody as a Place of Safety, so are struggling under the current legal frameworks to achieve what is needed – often because of problems way beyond their control.  If this stuff isn’t going to fall flat on its face, it’s about senior managers in health, local authorities and police forces who need to be sighted on things. I would urgently recommend some senior managers in A&E get interested in making the points I’m making in this post, because I strongly suspect that if adequate preparation for the changes are not made, they will be asked more frequently than ever before to support vulnerable people in the care of the police. And we all know what a quiet time A&E are having at the moment!

READY, STEADY, GO!

So set your timers for three months and start counting –

  • In three months time, it will be completely unlawful for police officers to take any child to a police station if they are detained under s136 MHA – yet only this week, I know for a fact that the police have had to email chief executives in mental health and acute trusts they work alongside, reminding them of the law and rebutting suggestions that they should just bang kids up in concrete rooms because that’s how the NHS would prefer it.
  • In three months time, AMHPs will have just 24hrs in which to coordinate an assessment at a Place of Safety – if they decide it is necessary to make an application for that person’s admission, they will not be able to extend the 24hrs up to 36hrs where that extension is only necessary to identify a hospital with an available bed. Commissioners need to think about bed capacity and their ability to admit over 3,000 people a year within this timescale.
  • In three months time, the police will have to ring a mental health professional, where practicable, before deciding to remove someone to a Place of Safety.  So we need to know fairly soon, which phone number do the police ring in order to comply with this requirement. It needs to be available 24hrs a day, 7 days a week so even where areas have street triage schemes or liaison and diversion schemes, how will it work when they are not operating?
  • In three months time, adults will only be able to be taken to police cells in ‘exceptional circumstances’ – although this is not yet fully defined, the original idea behind this was around the detention of vulnerable people exhibiting ‘behaviours so extreme it cannot otherwise be safely managed’. We need to see whether that remains the definition, but then understand what it means and how we should interpret that in light of existing medical guidelines.

There is more to the impending amendments, but those are the main things that will require planning and partnership discussions.  If we haven’t started thinking about this stuff already, we need to be ringing people next week to start talking about it, because in April 2017, this will be the law of the country and failure to comply with it will amount to serious problems we won’t be able to defend.

Wider questions: the Code of Practice to the Mental Health Act was updated in England in 2015 and in Wales in 2016 (it has been in operation only for three months!).  We don’t yet know whether those Codes will be updated in 2017 to take account of these changes, so the statutory guidance about how s135/6 operates (chapters 16 of each Code) may become less relevant and less able to be relied upon to hold each other to account. I think it’s vital an updated Code is issued, or at least some transitional equivalent document until such time as the next full revision occurs – they normally occur about every 9yrs or so … next one due around 2024/5-ish!

Oh, and the power itself will be able to be used in private places (except private dwellings) so all other things being equal use of this power will still be destined to rise.  You’re welcome. 

That’s probably enough to be getting on with! – we’ve got three months and we really can’t say we didn’t know what was coming.

* The Policing and Crime Bill 2016 is yet to receive Royal Assent and become and Act of Parliament; it is anticipated the Queen will give her Assent to the Bill in late January and that the MHA amendments will take effect approximately three months later. These are estimates, subject to confirmation by the Government!


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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More Assaults on NHS Staff

A short post, because it’s just updated data on topics I’ve written about before, where the same issues prevail.  NHS Protect issued its 2015/16 data for assaults on NHS staff and the headlines are –

  • Assaults are up by over 2,500 to 70,555 in the last full year.
  • That covers the whole NHS: the figures further break down to –
  • 52,704 assaults involved what NHS Protect calls ‘medical factors‘ – see below.
  • 17,851 assaults did not involved medical factors.
  • MH professionals are two, three or four times more likely to be assaulted at work than the ‘average’ for the NHS as a whole.
  • I’m not sure we know how many NHS patients were assaulted, whether by other patients or by NHS staff (yes, it does happen). NHS Protect don’t record (or at least don’t appear to publish) those data.

Within the various sectors of the NHS –

  • 46,107 assaults occured within the mental health sector of the NHS – 35,440 of those involving ‘medical factors’.
  • 2,300 assaults occured within the ambulance sector – 712 involving ‘medical factors’.
  • 20,018 assaults within the acute sector – 14,780 involving ‘medical factors’.

MEDICAL FACTORS

I’ve written about this elsewhere and for detail, I’d encourage you to read the previous post. Suffice to say here, that medical factors are defined as relevant to an offence if “the person did not know what they were doing or did not know what they were doing was wrong, because of injury, illness or treatment.” This is, more or less, the legal definition of insanity, so it is quite a high threshold to meet. There are very few insanity findings in criminal courts in any given year, yet the NHS records that more than 5 in every 7 of the assaults on their staff were at the hands of patients who meet that description.  This seems unlikely to me – it strikes me as a massive over-representation given what we know from other sources that insanity pleas are few and far between. We also know from research for NICE Guidelines that fewer than 10% of people who offend whilst mentally ill are offending because they were mentally ill. There is little direct, causal relationship between illness and offending, it seems.

Little appears to have changed in terms of certain inconsistencies that needed pointing out in my previous post – we need to debate what they mean. Nottinghamshire Healthcare Trust and Oxleas NHS Foundation Trust (south-east London) both recorded that none of their assaults involved medical factors. No-one at all in those areas – not even one person – was so unwell because of illness or injury that they lacked all insight in to their actions. And yet just down the road from those two, in Derbyshire Healthcare NHS Foundation Trust and in West London Mental Health Trust, ALL of the patients were so unwell they were, essentially, insane. I’ve worked as an operational police inspector in both Birmingham and in the Black Country: look at the figures for BSMHfT and the BCPT, above: one thinks that just over 20% of assaults were due to medical factors; the other thinks that just under 20% weren’t. I know Birmingham and the Black Country fiercely defend their cultural and various other differences but take it from me as a neutral (a Geordie) who has lived and worked in both places for over twenty years overall: I can assure there is not that much difference!

It strikes me again and again, neither of these extremes is likely to reflect the medical or legal realities in those areas. Just for completeness, there are two MH trusts data missing from the header image because of the page layout so I’ve highlighted them below because they also tell another story: why do MH trusts with a 1:2 ratio of staffing when compared to each other have roughly similar levels of assaults? You are twice as likely to be assaulted at work if you’re a mental health nurse in Ealing than if you work in Middlesbrough.


Of course, trusts differ in the services they provide – only some provide medium secure services; only some run learning disabilities or children’s mental health services; and only three trusts in England provide High Secure services and (West London is one of them) … but this all needs untangling if we are to make sense of data that is superficially confusing because it doesn’t compare apples with apples.

RISING LEVELS OF CRIME

What’s missing are the reporting levels to local police services. One MH trust told me that they report around 15% or 1-in-8 assaults on the staff to the police, because of their assessment of ‘medical factors’ and their consideration of victim’s views plus a guess at the public interest test for prosecution. So they determine that a report is not needed 7 times out of 8. Yet in a recently developed MoU between NHS Protect and the police service, NHS are requesting trusts to report 100% of incidents recorded in these data to the police. With what purpose in mind? – of course, anyone who is assaulted is entitled to report that to the police, but I’m wondering what the motivation would be for doing so if the suspect was an 89yr old degenerative dementia patient who has pushed a nurse causing no injury during the provision of personal care?

This approach should be even more interesting in those trusts which report 100% ‘medical factors’ – because they are asking the police to criminal investigate the liability of someone that professionals themselves are already assessing as unlikely to be convicted, ever. That having been said, in those thankfully rarer cases of more serious crime, the potential that someone is unfit to stand trial or likely to be found not guilty by reason of insanity is not sufficient reason, in itself, not to prosecute. The criminal courts in this country have powers under the MHA that no doctors have to balance off the issues where treatment needs to be considered alongside public protection. So we do need that debate about when it is right to prosecute a very vulnerable person who has offended. We know the answer is not ‘never’, so it begs the question, ‘when?’

Does a rise of 2,500 reported assaults comes from greater recording of incidents previously not reported because of a lack of time to do so or a belief that nothing worthwhile would result; or from a genuine rise in the levels of crime? … we don’t know! I’ve heard anecdote recently for each of those explanations and from professionals I know well and would trust; but it should be borne in mind the violent crime in society generally is rising and demand on the NHS is rising at a time when resources are being rationalised. It would not be unexpected if we saw numbers rising even just allowing for rising levels of offending. We need more data … much more data. We also need a clearer understanding of what ‘medical factors’ should mean and how this is being interpreted across the NHS. We need much more analysis and discussion of yet more data. 

We don’t know what we’re doing so we don’t know whether what we’re doing is wrong.

This should be on our to-do list for 2017 — Happy New Year!


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

Winner of the Mind Digital Media Award.