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The Physical Security Act 1983

I think it’s interesting to comprehend the Mental Health Act 1983 from the point of view of what it’s actually there to do. The short-title of the Act suggests that it is all about mental health and wellbeing. Of course, we know it’s not – the Mental Health Act is of no relevance whatsoever to anyone who is mentally well. From that point of view it should have been called the Mental Illness Act 1983. Perhaps it should have been the Mental Disorder Act 1983 – after all, in its own long title it is described as “An Act to consolidate the law relating to mentally disordered persons”, whatever they are. It brought together all nineteenth and early twentieth century law on lunacy and vagrancy, replacing that awful terminology with stuff that hasn’t survived contact with the real world either.

I wonder, however, whether it should have been called the Physical Security Act 1983 – after all, there is nothing in the Act itself that allows the state to intervene purely because someone has a mental disorder, however serious. Most police officers are familiar with situations in which they’ve used s136 of the Mental Health Act or arrested someone for an offence when it is ‘obvious’ that someone is very unwell, only to find that the assessing professionals do not or cannot apply the Act in those circumstances. It’s not mental illness that is the key factor: it’s the nature or degree of that distress which determines whether the law can be applied as llong as it is relevant to the health or safety of the individual person or the safety of others.

Nothing prevents people who are mentally unwell accessing various kinds of services if they want to and you can be as unwell as you want to be until you begin to represent a threat to your own or others physical wellbeing.  Then – and only then, does the Act begin to have relevance. So it’s about physical security.

THE FAILURE OF COMMUNITY CARE

Many people have observed over the decades that community mental health care has failed, including Government ministers.  My holiday reading this last half-term was the book Pure Madness by Jeremy LAURANCE in which he quotes psychiatrists who observed that a proper effort to deliver effective community care has never been fully tried. Not properly tested. If it has never been fully attempted, it cannot (yet) have failed because we don’t know what would happen if it were fully funded and properly driven. Many mental health professionals have remarked that patients often don’t need hospitalisation, it’s just that they do need that which is not available outside of hospital and this all then begins to focus keeping people out of hospital and mitigating the kinds of risks that lead to massive criticisms of mental health services – often measured in terms of suicides and homicides, or other untoward outcomes.

Long-term recovery rates are not, to my knowledge, measured in mental health services in the way they are in cancer or cardiovascular care. Other medical specialities take about things like 5yr survival rates (after a heart attack, for example) – what percetntage of those patients who have a heart attack are still alive 5yrs later? We know the number has been rissing steadily for decades as cardiac care improved. We know from various sources that actually, prognosis after a diagnosis of a mental illness is not progressing in the same way and nor is it measured as such. I don’t see how we can even raise such anomalies without reminding ourselves that so much else can matter in mental health: social circumstances, social care; community and family and of course, the decades long-funding disadvantage that mental health services have suffered. Last time I checked, the NHS was spending 13% of its budget on 23% of its ‘disease burden’  (health language). Remembering how complex the lives of some people can be when they are not in hospital and remembering that we’ve seen many areas lose their Assertive Outreach teams, it’s hardly surprising that the police are seeing ever more.  In that respect, street triage is just a particular form of the Assertive Outreach concept: putting mental health professionals into positions where patients are found, rather than maintaining a position where patients are expected to engage on a service’s terms. Interesting that it’s happening at a point where Assertive Outreach teams are being cut in many areas.

PROMOTING ENGAGEMENT

Everything I’ve ever read about mental health care and treatment from the very many book volumes that all the various professionals I’ve come to know over the years have been kind enough to recommended to me, I’ve come away convinced that right across nursing and social work as well as psychiatry and psychology that the more we can reduce coercion and increase willing engagement with services who address power imbalances between patients and professionals the better it is to outcomes in mental health and wellbeing. Tell me if you think I’m wrong. You can’t help but draw the same conclusions from many of the interactions I’ve witnessed whilst policing – constant emphasis upon the least restrictive practices (as if, incidentally, the police were not governed by similar principles) that aim to promote cooperation without underlying threats of patients being sectioned or denied leave unless they comply with care regimes that may not suit them.

It is for this reason that I’ve often wondered whether a fluorescent, paramilitary looking police officer in black SAS-style fatigues with batons, cuffs and bright yellow stun guns helps to foster the kind of cultural environment that promotes engagement?! Is it not too easy to be see this as the wagging finger of the state hanging precariously over the professional-patient interaction saying, “Engage, OR ELSE!”? Accepting you might never achieve such goals and that some coercion and some policing may well be inevitable, should we not strive to create services in which policing plays no part at all, thereby ensuring its involvement is as limited as possible so as not to frustrate the achievement of what everyone seems to say they want?

Whilst most recently witnessing the work of street triage teams and in my own, wider professional experience, I’ve seen many people who appear unwell reject the implicit offer of health services for their distress.  Only last night, I witnessed a mother in tears at her daughter’s predicament but the law was of no use in those particular cirumstances because she was not living her life in way that represented a risk to her own or anyone else’s safety. The ‘Physical Security Act 1983‘ did not apply to how unwell she seemed to be, even despite the mental health nurse having a view that services could help her with what he thought were moderate mental health problems. Like all other implicit offers of care from GPs or specialist services, no-one can make you engage with your doctor until certain thresholds were satisfied – and they weren’t. Writing this post reminds me that I haven’t (yet) engaged with my GP for the ‘over-40 bloke check’ that my GP surgery offers once men of my age have got beyond the agony of leaving their thirties. They haven’t chased me up about my obvious denial – I’m allowed to make my own decisions about my own health and health care however unwise others may think they are.

So I can’t help but wonder, as I get ever more involved in this stuff, about whether the things we most need to do – design services that really work for people on their own terms – are not obstructed by the things we’re busy doing instead, which increasingly focusses on threats, implied coercion and the ongoing criminalisation of mental distress?


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

Winner of the Mind Digital Media Award.


LCDoLS

Public Consultation

In 2014, the House of Lords issued a report on the Mental Capacity Act 2005 (MCA) which highlighted a range of concerns and problems. The following day, the Supreme Court ruled in the case of Cheshire West and significantly expanded the concept of a deprivation of liberty which has since seen a rise in some local authorities of over 1,000% in requests for best interests assessments, which determine whether or not Deprivation of Liberty Safeguards (DoLS) are implemented in hospitals or other residential care settings.

Some of this doesn’t sound like it obviously links to policing but over the last few years, I’ve found an obvious rise in the number of queries I receive about police officers becoming involved in DoLS-related incidents. Things like, whether or not they have a ‘power’ to return an elderly person to a care home when they are reluctant to return but subject to a standard or urgent authorisation under DoLS. If you don’t have a Scoobie-Do what that last sentence actually means, I’ve written elsewhere about policing and DoLS.

Police forces have struggled with all of this and with other incidents involving the MCA – and they continue to do so. We saw in 2010 the case of Sessay in which police officers sought to rely upon the MCA to justify their intervention in private premises where dealing with a mental health incident. We also saw the ZH case, which related to an incident at a swimming pool in Acton where officers again failed to convince the courts that the MCA defended them from liabilities arising from actions purported to be undertaken under the MCA. I get a large volume of enquiries about the MCA and whether or not it applies in this, that or the other circumstances and it’s not unfair to observe that police, paramedics and others can really get themselves into grievous intellectual anguish about this stuff.

It’s a bit of a mess! – a lawyer I once met described the MCA to me as “Probably the worst piece of parliamentary drafting I’ve known in over 40yrs of being a solicitor.”

So now, it’s time to have your say, if you have a view —

THE LAW COMMISSION

The Law Commission is therefore working on recommendations to the Government about potential legal reform of this area. They have published a document (with a summary version!) on mental capacity and deprivation of liberty safeguards and actively seek feedback from those with an interest or relevant experience in this area. I will put this around the police service later today and encourage the development of one response from the College of Policing and National Police Chief’s Council, but there is nothing to prevent individuals expressing their view whether you are a police officer or not.

You will not see development in this area very quickly – the Law Commission aims to produce a final report on this with a draft Bill by late 2016 and Government will then need to consider it and make decisions regarding it. I confidently expect to be within my final decade of police service by the time anything happens!

Deadline: 2nd November 2015.


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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Paragraph 16.20 & Holding Powers

The new Code of Practice (2015) to the Mental Health Act 1983 introduced a few new features, as well as re-arranging various important aspects from the old code (2008) under new paragraph references.  This means we’ve all had to start unlearning the old reference numbers to golden nuggets of information that help win disputes about roles and responsibilities and get the new numbers memorised.  I admit, I’ve been shouting the old numbers for so long that I’m rather behind in my progress!  I summarised the new Code and listed some of these important references – old and new – for your greater convenience.  The present piece is the first of a few about the entirely new parts to the Code and we’ll start off with the subject of MHA holding powers –

I’m certainly not the only police officer in the country who has been invited by NHS staff into NHS settings to implement the use of section 136 of the Mental Health Act. In fact, when it happened to me it was rather just expected that I would do it because NHS staff had asked for it – that always made me smile. As if a nurse would just administer mediation or treatment because I asked them to … they’d expect the courtesy of being allowed to form their own view as to the necessity and appropriateness of it, quite obviously!  I digress: the point here is that officers have often wondered about applying their legal powers in situations where healthcare professionals may well have their own available and indeed, a legal duty of care to discharge.  Why rely upon the police? – when is it appropriate, if ever?

Very obviously, healthcare environments vary enormously and what may be reasonable to expect in a secure psychiatric unit may not be reasonable in a maternity or intensive care unit. Indeed, police officers have been known to make errors about where certain legal powers can apply – believing in some instances that section 5 MHA powers apply in Accident & Emergency Departments.  They absolutely don’t.

PARAGRAPH 16.20

So this new paragraph now reminds us –

“The police should not be called to a hospital ward to use their section 136 powers. If the person is already an in-patient in hospital, a nurse, doctor or approved clinician should instead use their holding powers under section 5 if it is considered necessary to detain the person (see chapter 18). It may be appropriate for the police to attend a hospital if the person is in the grounds, or another public part of the hospital, such as a part of the accident and emergency department to which the public have access, in which case they may use section 136.”

It has been known that wards would ask for police officers to exercise emergency detentions on inpatient wards, often because it provides a way of then asking the officers to remain and prevent absconding. In one example, a person arrested for a minor offence became ill in police custody and was transferred to A&E before admission to a ward. The police knew exactly who the person was, where they lived and the offence was not so serious as to require the police to secure the person during medical treatment so it was being proposed to bail the person for investigation at a later date. The hospital staff asked the officers to then detain the person under s136 because they had reason to suspect the person would abscond and that they were in need of detention under the Act.  Officers refused to implement their detention power, rightly arguing that it was not ‘necessary’ (for the purposes of s136) because hospital staff had a full suite of powers available to them under the MHA to handle the situation.  It caused considerable disquiet and the involvement of managers on both sides.

This BLOG post was motivated by a former police officer who now works in NHS security asking a view on a situation: an elderly patient on a medical ward for medical treatment also presented with probelms in cognitive functioning of one kind or another and staff formed the view that an assessment for detention under the MHA should be done. Before this could be organised, the patient became distressed and agitated, attempted to leave the ward. The duty doctor decided to implement a holding power under s5(2) MHA and nurses attempted to keep the patient on the ward, but failed to manage the resistance offered. Hospital security were alerted who intercepted the patient at the main hospital door but after confirming that hte duty doctor had not yet completed the statutory form which accompanies the use of this holding power, allowed the patient to leave.

SAFEGUARDING

Sounds outrageous doesn’t it? – security deliberately allowing a vulnerable person to leave hospital unescorted?!  I admit that’s what I thought and I sought validation for this instinct via a legal forum only to be quickly skooled by the AMHPs! Section 5(2) doesn’t take effect when the Doctor says they are doing it; it kicks in when the relevant report to the hospital manager has been ‘furnished’ by being handed to a relevant person or placed in the internal mail system.  Sounded highly unlikely to me but once I read the legal section for myself it was very obviously correct, however counter-intuitive it may sound to some.

So at the point where the person in our scenario suddenly tries to leave but it is believed that an application under the Mental Health Act may be required, how can they be held, pending the DR’s decision and / or the associated paperwork, which I’m informed takes only a few minutes?! You are back to other legal powers that we’ve discussed before: things like the Mental Capacity Act 2005, etc.. So we’re into quite precise territory here: details of mental health law that it may not be reasonable for police officers or security staff to know. It may well be the case that consumed in good faith by an instinct to keep people safe and ‘do the right thing’, that some decide to ensure the person remains safe by holding them, confident that the doctor is furiously writing that report and happy to rely upon section 139 of the Mental Health Act to keep them out of court.

In this latter scenario, the police found the person nearby and used section 136, removing the patient back to the ward for assessment. Can you hear a noise? – it could be the sound of acute hospital managers fainting that they acted as a Place of Safety!  You can almost hear the chorus reaching it’s climactic refrain – “But we’re not a Place of Safety: we’re not designated!”  Of course, keen legal eagles amongst you will already be aware that anywhere can legally act as a Place of Safety and that a vulnerable person with particular medical problems requiring inpatient care is obviously going to have to go back to the ward or to an A&E department – where else would you take them?! As long as the ward or A&E department agrees to receive them, they are then acting as a Place of Safety.

The main point here is to emphasise to those who may be involved: where the legal detention of inpatients is required and where that patient is on a ward, section 5 holding powers should be used and the police should not be relied upon to effect their emergency detention power. Accident & Emergency is a different environment and s136 can be relied upon there, where the grounds are met.   It may be necessary, on some occasions.

      


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

Winner of the Mind Digital Media Award.