AL

The Dogmas Of The Quiet Past

I have absolutely no idea at all what was going on in the United States of America in December 1862 but US President Abraham LINCOLN took the occasion to say this –

The dogmas of the quiet past are inadequate to the stormy present.  The occasion is piled high with difficulty, and we must rise — with the occasion. As our case is new, so we must think anew, and act anew. We must disenthrall ourselves, and then we shall save our country.”

Rise with the occasion; not to it.

I heard this quotation in a context quite unconnected to policing and mental health, but it immediately made me think of it – there is so much that is wrong or inadequate about our mental health crisis services and we can’t just keep doing the same thing and expect different outcomes. Don’t ask me: just look at the Crisis Care Concordat (2014) and ask why it was necessary at all; just look at last month’s thematic review of crisis care. See the many and various reports over the last few years (and decades!) that keep making the same remarks – Lord ADEBOWALE’s 2013 report in which he pointed out “The police can’t do this alone” and in which proceeded to make recommendations in a report about policing that were mostly about health and social care organisations, from ambulance to mental health trust and local authorities. The Home Affairs Committee did very similar things in 2015 and although all of these documents mention the need to improve police training, I want us to pause and think about the impact on the public if that’s all we do.

The College of Policing will have a stack of training and new national guidelines for the police fully available early next year. Whatever it is that you think is wrong with police responses that you would hope training and guidelines will improve, it’s not going to be a complete game-changer. Whether greater education turns every officer into the most empathetic, compassionate individual; whether legal knowledge improves to near-solicitor standards; whether knowledge of local NHS structures becomes as good as those nurses working in the local system; whether every frontline PC could confidently tell you the difference between a learning disability and a learning difficulty; or between Autism and Asperger’s syndrome …. none of this will fundamentally change the world, however much some of that might genuinely help people.

Better educated and trained, a whole legion of officers may well turn out from parade to the next crisis call, better identify a vulnerable person, communicate more effectively, be just patient and persuasive enough to avoid the need for using force to resolve an incident by empathetic listening and communication, but what this won’t do is change anything about the NHS.  It won’t touch NHS structures that currently lack the capacity to allow known patients to access a crisis team, for example; it won’t alter the experience of patients who end up in A&E (where the CQC reported attitudes towards mental health patients were amongst the worst); it won’t differently commission ambulance services or alter the capacity of the community mental health teams who have seen their caseload rise by 100% in the last year alone.

When we reflect back on those many and various reports mentioned above with our army of mental health trained police officers – we will still be without sufficient crisis care services or only with those that have already been identified as ineffective – “the police can not do this alone”, as Lord ADEBOWALE reminded us.

MENTAL HEALTH CRISIS SERVICES

At this year’s Royal College of Nursing Congress, the RCN Students put forward a resolution on holding commissioners to account for ensuring effective crisis care and it was supported by 99.8%(!) of those who voted – only 3 people in the entire session chose not to vote.  You can see more detail about this session on the RCN website (and I hope at some stage to be able to work out how to make the video work so I can actually watch it!)  It points out that one in five mental health trusts was found (by the CQC) to have inadequate provision – and this is where the emergency system fills a void: police, ambulance and A&E. In many areas, crisis team advice to patients – after recommendation of distraction techniques – is to call the police or attend A&E. Obviously street triage can mop up a certain amount of this but in my shadowing of street triage schemes over the last few months, I have found that much of the work is CrisisTeam work that does not and never did involve anything that would, of itself, be considered a police responsibility. It’s just that the call came to the police, not least because other parts of the NHS were pushing it there and street triage may, if anything, have accelerated this tendency.

Many police officers working in street triage are gaining great knowledge: of the law, of local NHS pathways in their areas and so on. Research on police officers volunteering for mental health related roles and their skills in handling mental health calls tends to suggest, somewhat obviously, that the roles attract people who are more interested in mental health matters and are therefore inclined to actively develop knowledge and skills. So the challenge is to take mental health as a subject and make all police officers realise that this is not some frustrating extra topic that we have to deal with that we shouldn’t touch at all. I’m always amazed to hear (just some) officers say things about mental health like, “Why do we have to do this?!” – as if to suggest that it is all unnecessary and the NHS should have prevented the need for any police involvement. Of course, it’s true in almost every area of policing that we fill a void of some kind – we shouldn’t have to police the nightime economy anything like as heavily as we do because bar staff shouldn’t be serving alcohol to drunk people – we know that many bars might as well be holding people’s mouths open and pouring it in; we shouldn’t have had to investigate various railway disasters because train companies should take their health and safety responsibilities seriously, and yet we know they don’t always. Isn’t that the very point of the police?! – to investigate people who do things they shouldn’t do and provide other safety net functions up after things happen that shouldn’t happen?

Remember by favourite Egon BITTNER quotation –

“Policing is what happens when something’s happening that ought not to be happening about which somebody ought to do something now!”

So as new training and guidance hits the real world in early 2016 the police can hope to make a better impression on the world.  Some might argue that we’re building on a reasonable foundation as the CQC found that paramedics and police officers were the top two groups of professionals for positive feedback from patients in mental health crisis – way ahead of specialist mental health services, GPs and A&E.  However, before any police officers become too self-congratulatory it should be borne in mind that satisfaction levels reported in the CQC report around mental health were based on a very small sample and were actually significantly worse than the general satisfaction levels reported about policing generally!

But what everyone needs to realise is that none of this is going to make a seismic difference in the real world if the problem with mental health crisis services is not simultaneously addressed – the police can not do this alone.

We must disenthrall ourselves.


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

Winner of the Mind Digital Media Award.


DBS

The Disclosure and Barring Service

New statutory guidelines, issued by the Home Office, come into effect tomorrow concerning the Disclosure and Barring Service. For those of you who have not (yet) heard of the DBS; it replaced the old Criminal Record Bureau in 2012 and took on certain other responsibilities to maintain lists of professionals who are barred by law from working in particular professions. This is obviously of massive importance where it comes to the employment of people who work with vulnerable groups and this new guidance strikes at the heart of concerns that were raised during last year’s consultation on the operation of the Mental Health Act 1983. The Government review was in connection with police powers under sections 135/6 of the Act but a point repeatedly raised in passing was the disclosure by Chief Constables of such incidents during DBS checks.

This is clearly a very sensitive subject and it has been discussed for some years – you may recall that Alastair CAMPBELL published a BLOG back in 2011 where he reproduced (with permission) a letter from Eileen O’HARA, a mental health campaigner. She highlighted how some of her mental health history had been disclosed to a prospective employer during an enhanced CRB check. Fortunately for her, she was seeking to work for a mental health charity who took an enlightened view that this represented no automatic barrier to her position. But it highlighted a point affecting many others: mental health history is not automatically disclosed by mental health services, indeed it would be regarded as medically confidential. Therefore when, if ever, is it acceptable for a police service to disclose information without the consent of the person that officers were privy to purely because they became involved in a situation in support of mental health services or because they had instigated section 136 of the Act for someone in crisis?

A LITTLE BIT OF HISTORY

For those not familiar with the history: under the CRB regime, Chief Constables were bound by the Police Act 1997 to disclose information that “might be relevant” to the employment of a person seeking a position that requires an enhanced check – typically those involving children, vulnerable group and security issues. And to an extent, anything might be relevant to anything else! If you didn’t read Eileen O’HARA’s letter, it contained the quotation from the police disclosure –

Devon and Cornwall Constabulary are (sic) aware that in 2009, Eileen O’HARA was a patient of the Glenbourne Mental Health Unit in Plymouth; we are not aware whether she has any current mental health issues, or whether she presents a risk to vulnerable people.

You could spend a whole day wondering about the implied meaning here: indeed you’d have to because it doesn’t actually say anything! What are they trying to convey to the prospective employer? Does the final, subordinate clause indicate an assumption that a patient in a mental health unit inherently must represent an risk to vulnerable people?! – that’s certainly not the criteria for detention under the Mental Health Act! Patients can be admitted under section 2 or section 3 merely because they are a risk to themselves; and not necessarily from self-injury either. It could just simply be that a patient is at risk from significant self-neglect – unable to care for themselves, take care of finances, etc. – or unable to protect themselves from the exploitation of others.

But of course, under the law in 2009, the Chief Constable had a duty disclose information that ‘might be relevant’ and this responsibility was debated in the courts including both the Court of Appeal and the Supreme Court. Various opposing judgments were given over the years. Without some kind of guidance, how do you start to weigh the various factors and comply with the requirement of Article 8 ECHR (the right to privacy)? The Supreme Court case gives the binding view and provides the legal backdrop to how interpretation of the Police Act should be approached.

What we still don’t know from disclosures like the above, is anything about the actual nature of the incident. Police involvement with patients who are admitted to hospital could take one of many forms and I can imagine several that would by utterly irrelevant to prospective employers but which involve application of the Mental Health Act or admission to hospital. Greater, more detailed judgement is required because the police often fulfill roles better undertaken by other agencies and not because anything inherently required police officers’ skills, equipment or legal powers.

In any event: all of that is history.

THE NEW GUIDELINES

Chief Constables and PCCs have already received copies of the Home Office’s guidelines. The statutory basis of them is important because it means that any decision taken after after Monday 10th August 2015 must be rationalised against the new framework and a more thorough, thoughtful approach will have to be taken about mental health related information. I fully understand that some commentators will read the guidelines and will have hoped they went further: incidents involving the police or that were legally handled using powers under the Mental Health Act can still be disclosed: the difference introduced by the Protection of Freedoms Act 2012 was that the “might be relevant” criteria was replaced by “reasonably believe it to be relevant” and the law has long upheld the right of Chief Constables to disclose information that did not result in a conviction where it is directly relevant on a balance of probabilities.

These new guidelines cannot introduce a total barrier to disclosure – that remains permitted by the Police Act 1997, but they can require the decision to be taken against consideration of factors considered relevant by the Home Office.

Their new guidance states

  • Detention under the Mental Health Act, which does not constitute a criminal investigation, is unlikely in itself to be sufficient to justify disclosure.
  • The behaviour of the person during the incident must be a key consideration for officers when considering checks. This could include assessing whether the person presented a risk of harm to others or whether they were involved in multiple incidents.
  • The date of the incident is an important factor. In cases where it took place a long time ago, officers should consider giving the applicant an opportunity to make representations about their current state of health.
  • If information is disclosed, the certificate should provide an explanation so the employer or voluntary organisation clearly understands the relevance of the information to the application.

Finally and perhaps most importantly: it remains the case that individuals have a right to appeal to an Independent Monitor regarding information that they believe should not be disclosed and this appeal mechanism can insist that a new certificate be issued, where it is upheld.  This is a step in the right direction: whether it is sufficient will probably depend on your view about the relationship between mental health, crime and risk.

MENTAL HEALTH, CRIME AND RISK

As the guidelines rightly point out, detention of someone under s135/6 is not a part of a criminal investigation. However, the origin of this power and its use in practice, is that it allows officers to deal with mental health crisis incidents even where they involve the commission of a minor offence – remember the power was part of consolidating other offences under outrageously outdated nineteenth century laws. The last time I was present at an incident where s136 was invoked, the person concerned had committed a clear offence under modern legislation – they had brought a major motorway to a halt, a serious offence under the Road Traffic Act 1988 (and as my colleagues in motorway policing often tell me, it costs a £1m an hour to the UK economy). That said, the major issue in the incident was not a relatively short period of inconvenience to motorists, but the chance to save someone’s life whilst acutely distressed and such s136 incidents are the exception. In the main, police powers are used to safeguard people at risk, mostly from themselves – as is the case with the Mental Health Act as a whole.

So there it is – a presumption against disclosure of police-related Mental Health Act incidents unless something very specific within the actual incident higlights something that the Chief Constable reasonably “believes to be relevant” because of potential risk in the context of that potential employment. But individuals are no longer at the total whim of a system beyond their control and they have a right of appeal.  Not perfect, but certainly better than it was!


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

Winner of the Mind Digital Media Award.


WMP-WMAS

Leaving Accident & Emergency 

This is one of those BLOG posts that I feel I’ve written before – but I keep getting queries and long email threads to read from various professionals who’ve clearly been engaged in an epic-email debrief of some previous  melodrama where everyone thought they were a barrister.  The questions relate to frustrations about how to safeguard someone in an A&E department – this stuff just never seems to abate.  Of course, many people self-present to A&E in distress and we know from this year’s Care Quality Commission 2015 report Right Here, Right Now that around 5% of all patients in A&E are there for mental health problems.

We’ve seen the expansion of liaison psychiatry services and mental health nurse support to their A&E colleagues.  We also know that the ambulance service, bereft as they are of referral pathways to specialist mental health services, have no other option in many areas than to take people in crisis to A&E and difficulties can arise for all concerned where patients then wish to leave the department without waiting for the completion of any assessment or admission process.  We also know that CrisisTeams often encourage people to A&E as a ‘safe setting’ in which to undertake an assessment and occasionally encourage police contact in situations where officers would have little other choice than to refer someone to A&E.

WALKING OUT

We know that some people have walked out of A&E and been found dead by the police shortly afterwards so the stakes around this, on occasion, could hardly be higher.  The police obviously have at least some role to play: empowered as they are to make decisions (s136) under the Mental Health Act that A&E staff, A&E security and mental health professionals cannot make.  In case of any doubt at all we need to get this one out of the way: section 5 of the Mental Health Act 1983 cannot be used in an A&E department – section 5 can only be used in respect of patients who have been formally admitted to hospital, whether that be to a psychiatric or an acute hospital.  I keep hearing cops, nurses and others getting this wrong – it simply doesn’t apply to A&E!

Accident & Emergency is, little more than an outpatient clinic, legally speaking.  It is beyond the scope of section 5 holding powers for either the doctors or nurses who work their, or any hospital security acting on their behalf.  If you really want to get into technicalities of particular parts of the hospital, you would need to double check what’s going on with those areas of a hospital which have names like an ‘acute admission unit’ or similar – these areas are often adjacent to A&E and amount to something like a holding area for inpatients.  People are usually formally admitted to the hospital whilst in AAU, but it would be worth double-checking with staff there if you’re ever called.  Whilst it is a staging area before patients can be transferred to the appropriate ward, section 5 would apply there, as people are usually formally admitted by medical staff and paragraph 16.20 of the Code of Practice to the Mental Health ActHA makes it clear that section 5 powers should be used where they apply, rather than asking the police to initiate section 136.

TACTICAL OPTIONS

So where a situation seems to indicate that someone in A&E would be at significant risk of self-harm, suicide or medical complications it can get very tricky and turgid to determine how a response may be put in place that protects vulnerable people lawfully, whilst balancing the rights of people to take their own decisions where they have the capacity to take them.  As ever, it’s just not about whether someone lacks mental capacity but also about whether them being held against their will in A&E pending a mental health assessment because of an apparently serious risk to their life or wellbeing.

There are only three principle options –

  • Call the police and ask officers to consider applying section 136 MHA – police officers really need to understand that A&E absolutely is a place where s136 can be applied.  Nothing about whether A&E is or isn’t a place of safety affects this decision being possible; nothing about treatment areas and triage rooms being controlled by swipe card systems and so on, prevents its application; nothing about staff determing access to particular areas.  If you are in any doubt about this, it’s not my opinion, but that of the judge in the 2010 Sessay case (paragraph 39) who ruled, “Accident and Emergency is a place to which the public has access … for the purposes of s136”.  Officers need to be clear in light of the next two options, that this is one of the most straight forward ways to resolve a situation involving someone suffering from a mental disorder and that it would be perfectly proper for hospitals to see it.  Yes, I know it will then mean officers remaining in A&E whilst treatment or assessment is concluded; I’m aware that it may then mean transferring someone to a mental health unit and that this is all resource intensive – unfortunately for the officers, it is also the obvious implication of our law that it may be required from time to time.
  • If the patient lacks mental capacity, restrain them to prevent them leaving where relevant conditions are met – the Mental Capacity Act can be used to justify a decision taken in the least restrictive way in someone’s best interests where that person lacks capacity to take a particular decision for themselves. This could include a decision to leave A&E but it would be necessary for the person relying upon the MCA to be able to demonstrate that restraint was a proportionate response to the likelihood of that person suffering harm and to the seriousness of that harm.  You need to be careful here about what the relevant conditions would be: it is not only sufficient to have an understanding about the Mental Capacity Act’s general principles, including presumption of capacity unless otherwise assessed, best interests and least restriction; you also need to apply the additional thoughts in section 6 and be clear about whether that action becomes a deprivation of liberty and must take account of section 4B whilst the hospital seek a ruling from the Court of Protection!
  • Rely upon the common law doctrine of necessity to justify a decision – this is still an available option, although this Common Law authority was mostly eroded by the introduction of the Mental Capacity Act.  Wherever a person lacks capacity to take a particular decision, the framework of the MCA applies and should be the method of intervention.  However, where no powers are available to the people concerned (like A&E staff / security) this remains an option where someone with capacity is at obvious and immediate risk of significant harm.  It could be relied upon in some very limited circumstances, for example, to justify intervention until the police arrive to consider application of section 136 MHA; or to hold someone very briefly until a full MHA is completed.  The Sessay ruling also had things to say about this (see paragraphs 33-39) and reliance upon Common Law has to be very carefully weighed up as it all too often would not apply because the frameworks of the MHA and MCA would be the correct method of legal intervention and I certainly reminded us that Common Law does not along protracted detention for a MHA assessment – it has to happen PDQ. 

And just a very quick word about what is certainly not an option! –

  • An urgent Deprivation of Liberty Safeguard order – I mention this after having heard of an A&E department who told their security officers that an ‘urgent DoLS’ had been authorised and suggested that as the legal basis for detaining someone.  Shortly afterwards, dozens of Best Interests Assessors (BIA – those professionals, often social workers, who make assessments about the authorisation of DoLS orders) were reported to have fainted across England and Wales.  There are two situations in which the phrase ‘urgent deprivation of liberty’ may occur – an urgent DoLS order (under Schedule A1 MCA) which is instigated by a care provider like a hospital or care home pending a formal assessment by a BIA; and more general action entered into in an life-threatening emergency which also amounts to a deprivation of liberty under the MCA and may be done pending an application to the Court of Protection.  I’m not going to go into any more detail here about the difference; suffice to say that this example involved the hospital ‘instigating’ an urgent DoLS order which cannot lawfully be done unless someone is already in hospital or a care home as a patient or resident.

THE RISK OF NEGLECT

So the conundrum often arises, what should be done where staff have concerns for someone’s life or physical wellbeing were they to leave A&E, arising from their mental health or other cognitive problems?

The first thing to make absolutely clear, is that it is highly likely that just letting people leave and then ringing the police to commence a potentially high risk missing person inquiry will not always be enough.  There are various reasons to think this: firstly, Coroner’s cases where hospital trusts have been criticised for this very approach; waiting too long before intervening or ringing the police.  Secondly, we know that all NHS hospitals are part of health organisations which are public authorities for the purposes of the Human Rights Act.  Therefore, they have a positive duty to promote human rights and this includes Articles 2 (right to life) and 3 (inhumane and degrading treatment).

If you look at the case law page of this BLOG, you will see various cases which refer to human rights for absconding patients – including those not (yet) legally detained – and which refers to negligence and a duty of care.  I’m also wondering recently about the application of new criminal offences under section 20 and section 21 of the Criminal Justice and Courts Act 2015 to these situations – totally unchartered territory involving very newly created offences which are yet to be used, to my knowledge.

Thirdly and finally, we know that for some patients, hospitals do actually think proactively about absconding risks in vulnerable people and we know that all kinds of staff, including doctors, nurses and security have from time to time stopped an elderly vulnerable person with dementia walking out in to the street.  I’ve seen it happen and I’ve always wondered why the situation is different for a woman in her 20s suffering an episode of psychosis where it is known that she has seriously attempted suicide in the past?

POLICING SUPPORT

I suspect my police colleagues may prefer these next few sections not to be said! – officers need to understand a couple of things in particular, one of which I’ve already mentioned.  It is perfectly proper for hospital staff who have concerns about someone’s mental health to ring the police and ask them to consider whether or not section 136 MHA could or should be applied.  It will always remain the officers’ decision and I have come across numerous examples in the last year alone of this happening. On some occasions I think the officers were absolutely right to refuse to instigate the power – on others, it would seem a perfectly lawful and proportionate way of mitigating the risk in a potentially serious situation doing otherwise would be hard to defend.  Remember, section 136 can be applied in A&E, irrespective of arguments about whether it is or isn’t a Place of Safety (it is); and irrespective of whether the person would need to remain in A&E or be removed to the Place of Safety in a local mental health unit.

Finally, it is worth officers thinking about what the word ‘necessary’ means – I’ve written a BLOG on this before and I will simply refer you to it, if you’re not sure why I raise the point.  My punchline is that section 136 may not only be necessary because someone will not agree to a course of action to ensure their needs are assessed; it may also be necessary because context indicates that we need to ensure the person completes the assessment that they may be initially agreeing to. The mere fact that someone agrees to go to A&E does not mean that 136 is void – does the person concerned have the capacity to consent to that decision? It may be they agree for all manner of reasons that are to do with a lack of insight or comprehension about what that actually means for them.

Ultimately, all of this is about balancing off available legal powers with the duties and obligations that sit on police officers as well as on medical and nursing staff or any security professionals acting on their behalf.  Knowledge of law is key for all: and remember that the Sessay judgment gave decent coverage to discussion of the interplay between the MHA, the MCA and our common law, all set against the background of the European Convention on Human Rights – it is well worth a read and I’m glad the have fully re-read it in preparing to write this BLOG.  It has always been my view that a lack of knowledge sits at the bottom of most inter-agency debates and difficulties.


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

Winner of the Mind Digital Media Award.