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Para 16.38 to the Code of Practice

I have to crave your indulgence in this post, because I wrote and published much of it some years ago.  I’ve done a fair bit of cutting and pasting to put out something very similar all over again – let me explain why!

The new Code of Practice to the Mental Health Act (2015) means that all the numberings for various paragraphs have changed.  So when people are searching the blog for advice, this would remain filed away under the old reference number.  I want a substantive post in the system so it can be searched and found by the new numbering system or reference and so this post is about the old paragraph 10.22, now known by the new paragraph reference 16.38, pertaining to how police officers should make decisions about the choice of a place of safety after using powers under ss135/6.  I have just cut and past the whole thing, though – there are some new thoughts, links and a story to follow!

It is becuase this issue remains topical and problematic that I don’t feel too guilty about repeating myself to ensure the importance of this paragraph is understood.  The original version of this post came about after the (then) College of Emergency medicine published a mental health toolkit, to assist acute trusts’ Emergency Departments in understanding the overlaps with mental health and improving liaison psychiatry services for the benefit of us all.  They have since published a report (2014) specific to the use of section 136 MHA after surveying members and fellows of the (now) Royal College of Emergency Medicine (RCEM).  These are comparatively short documents in accessible enough formats and when I opened up the first once and searched for the phrase “place of safety”, I couldn’t find it – because A&E rarely see themselves as being a place of safety, notwithstanding the law of England.  So I searched for the word “police” and it brought me directly to section 11: which also includes a link to Royal College of Psychiatry Standards on s136 (2011):

“All areas in England will have a multi-agency policy for section 136 patients.  There should be an appendix relating to the use of emergency departments.  It is prudent to ensure that this is appropriate for your local service, and that the ED is only used for 136 patients who have an acute healthcare need.  Otherwise mental health services should provide an assessment suite, or where necessary the patient should be taken into police custody.  The policy should also include a strategy to ensure that acceptable time frames for a mental health act (MHA) assessment are established, with provision for police to remain with the patient if they are managed in the ED.  The police should stay until a MHA assessment has been completed.”

In the 2014 survey of members and fellows, the RCEM reported that only 48% of the time had their local police officers complied with local policy.  I was instantly amazed it was that high, quite frankly – most s136 policy documents I read have very real legal problems.  They often prescribe processes that do not closely adhere to the various laws, statutory guidelines and Royal College of Psychiatry standards and I usually end up with a long list of complaints.  Put another way, if I hypothetically detained someone under s136 in every area of England and Wales, it would be highly unlikely I’d comply with 48% of local policies.  Probably more like 5% – a police officer’s first duty is to the law, not to local policy.  If we must insist on writing policies that are different from the law, we shouldn’t be surprised that police officers disregard them.  It is their job to do so, when put in that position.

So based upon that, I want to re-highlight what is now numbered as paragraphs 16.36 to 16.38 of the new Code of Practice (2015) to the Mental Health Act.

  • Para 16.36 – The locally agreed policy should contain a list of identified places of safety.  The process for identifying the most appropriate place of safety to which a particular person is to be removed should be clearly outlined in the local policy.  this should be a hospital or other health-based place of safety where mental health services are provided.  health-based places of safety should ensure that they have arrangements in place to cope with the periods of peak demand, for example using other suitable parts of a hospital, neighbouring health-based places of safety, or alternative places of safety.
  • Para 16.37 – Other options which might be appropriate to the individual’s needs should be considered, for example a residential care home or the home of a relative or friend of the person who is willing to accept them temporarily.  There is nothing precludes other areas of a psychiatric hospital (such as a ward) being used as a temporary place of safety, provided that it is a suitable place and it is appropriate use that place in the individual case.
  • Para 16.38 – A police station should not be used as a place of safety except in exceptional circumstances, for example it may be necessary to do so because the person’s behaviour would pose an unmanageably high risk to other patients, staff or other users if the person were to be detained in a healthcare setting.  A police station should not be used as the automatic second choice if there is no local health-based place of safety immediately available.  (My emphasis.)

THE BROADER PICTURE

Let’s not revisit the nonsense that A&E is not a place of safetyOf course it is: whenever they agree to temporarily receive a patient and by virtue of them being hospitals.  And we understand that A&E can be a distressing environment that can exacerbate symptoms but I’m not sure what we think happens in police custody when the masturbating drunks are singing songs and we’re dragging in offenders who are screaming obscenities at the custody officer, wishing cancer upon their families?  Not a great place to be if you’re mentally unwell.  Has anyone asked patients where they would rather be if it came to a choice – it often does: the RCEM document does talk about service-user engagement, after all.

Of course the problem really is about how local services are commissioned and to smaller extent how and where they are provided.  One of this week’s phone-a-friend queries was from a police force who had been asked to execute a warrant under section 135 of the Mental Health Act.  They were told in advance of attending that after gaining entry, the person concerned would be subject of an initial assessment by the AMHP and DR but would probably need to be removed to a police station until a second doctor could arrive because they anticipated that the man would need to be admitted under the Act and they would need two medical recommendations and a bed that hadn’t yet been identified because it didn’t appear to exist.

So there we had it: on day one of the new Code of Practice to the Act, the AMHP actively wanted the Code breached and was asking police officers to do so.  No clear record of why the health-based PoS was unavailable or inappropriate; no record of why alternatives were unavailable or inappropriate; no identification of those decision-makers, as required by the new Code (para 16.62).  Of course, once the warrant had been executed and the person detained for removal to a Place of Safety, the officers should have followed standard procedures –

  • Call an ambulance – to assist in complying with the new chapter 17 of the Code
  • Try to access the identified health-based Place of Safety for that area – which was about forty-five miles away, in the circumstances.
  • Take the name of the decision maker if access is refused – a new requirement from the new Code of Practice.
  • Consider the alternatives to that health-based PoS if it was unavailable – what was considered and why was it ruled out?
  • Use a police station only as a last resort – in exceptional circumstances only.
  • Limit the use of police custody to 24hrs maximum – so if the bed doesn’t exist, to which PoS will the person be transferred during that initial 24hrs period.

The new Code very much assists the police in ‘pushing back’ against assumptions that the police will keep plugging gaps in crisis care systems, but we need operational supervisors and custody sergeants in particular, to know of these provisions.  If you haven’t read the new Code of Practice, I did a brief summary of it to save you reading all 462 pages!  If you ever have time, focus on chapters 16 and 17, as well as 27 and 28 and if you’re really keen, chapters 14 and 15.

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The Mental Health Cop blog

Badgewon the ConnectedCOPS ‘Top Cop’ Award for leveraging social media in policing.
won the Digital Media Award from the UK’s leading mental health charity, Mind
– won a World of Mentalists #TWIMAward for the best in mental health blogs

ccawards2013 was highlighted by the Independent Commission on Policing & Mental Health
– was referenced in the UK Parliamentary debate on Policing & Mental Health
was commended by the Home Affairs Select Committee of the UK Parliament.

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Breaking The Law

“You think I’m talking about breaking the law?!”

“No, I’m just trying to figure out how far you want it bent!”

“As far as you can, without breaking it!” — do you remember the film?!

For as long as I’ve been in the police, officers have been trying to minimise the impact of the time it takes to handle mental health related calls by bending some of the rules – legal, procedural.  Over the years, following various challenges in the civil courts, it has emerged that they were actually breaking them – and now the new Code of Practice to the Mental Health Act is reinforcing things.

We have a legal framework in this country and we need to follow it!

It’s something that shouldn’t need saying, right?!  Unless you’ve seen it, I doubt you’d realise how difficult it is in many cases to give practical effect to the implications of our legal system because of how we configure our health and social care services to deal with crisis care.   Last autumn the Royal College of Emergency Medicine published a survey on section 136 which reported that the police comply with local arrangements only 48% of the time.  I’ve expressed surprise to a few colleagues in A&E that the number was so high – that the police comply with local procedures so often when to do so is to breach so many other more important things like Codes of Practice, human rights obligations and other legal standards around negligence and an officer’s duty of care.

I hope this doesn’t all sound too provocative!? – or why else would we need a Crisis Care Concordat?!

IMPROVISE, ADAPT, OVERCOME

When I first joined, I remember being told by my tutor constable that if you use section 136 MHA, “you can write off the rest of your shift – you won’t do anything else”.  He also told me that every time I did use section 136 I would have to breach the Code of Practice to the Mental Health Act!  Bearing in mind that some shifts are nine hours long and the everyone detained had to go to a police cell because no NHS organisation would agree to receive patients, even when they knew them, you can see the extent of the claims he was making –  and he was absolutely correct!  Many years later, I had to work out the average time spent in police custody under s136 and it was 10.5hrs per detainee with almost all detainees requiring constant camera or personal observations whilst detained, for safety reasons.

When you consider police responses to mental health crisis incidents in private premises, it becomes even more difficult to know what the ‘right’ thing is to do, because Parliament has given the police no legal authorities in such situations and not all members of the public want to voluntarily access those care ‘pathways’ that are otherwise available.  A perfect storm of being responsible for someone’s safety whilst not necessarily having the authority to ensure a safe outcome.  So police officers being fairly practical people, they’ve been improvising their way around the frameworks that the MHA offers and it’s been interesting to see as street triage has emerged, the number of times mental health nurses have advocated those very same improvisations.

So where an incident involves a criminal offence, you could arrest the person for that matter as a safeguarding intervention and ensure assessment of health and mental wellbeing in custody.  Not ideal, but potentially better than leaving someone you suspect is in distress in their house when they have expressly indicated an intention to hurt themselves.  Without an offence having occured, however minor, you have some really murky legal waters to wade through: you could, in just some circumstances, rely upon the Mental Capacity Act – those wings were clipped following the Sessay (2010) case.  You could rely upon those fourteenth century Breach of the Peace provisions, but again, case-law somewhat limited the scope of that intervention in the Hicks (2014) ruling last year.  (Worth noting that a Supreme Court appeal is pending in the Hicks case.)

HIDING DEMAND

I’ve rehearsed the various legal problems elsewhere and as the point I want to make here is different, I won’t repeat them.  I want to cause officers to realise that every time you try to lawfully and ethically subvert the established process for responding to mental health crisis in private premises, you assist in ensuring that the health and social care systems do not fully appreciate the nature and variety of work that they should be able to face and, unsurprisingly, they commission accordingly.  In other words, if the correct response to a mental health crisis in private premises is to seek the involvement of services with the potential that an AMHP and DR undertake a Mental Health Act assessment, then by using Breach of the Peace or by fudging an arrest, you ensure three things which we should all be keen to avoid –

  • You prevent the possibility of a correct, less restrictive response
  • You fail to build an audit trail of trying to do the right thing – which then makes doing the wrong thing appear even less appropriate.
  • You prevent the building of an evidence base of demands which Parliament has said health and social care organisations should be handling.

This audit trail thing is really important: any investigation, civil hearing or inquest that follows on from officer’s actions will be very, very interested in attempts to do the right thing, the less restrictive thing or the ethical thing.  They will be interested in knowing which health and social care professionals may have said “No” when they should have said, “Yes” or the reasons why police officers were left in an invidious position.  Many police officers, like me, will have experience of ringing crisis teams from private address where they have encountered secondary care mental health patients and seeking support, only to meet a brick wall.  I fully understand why the walls are there:  services are having to prioritise, demand is up whilst resource is down.  None of that changes the Mental Health Act or the Code of Practice which takes effect tomorrow, the 01st April.  It is now an explicit part of the new Code of Practice (paragraph 16.29) that officers do not use Breach of the Peace where ss135/6 should be preferred.

You really need to read this stuff! – a summary for you.

So we need to start making sure that NHS organisations and local authorities understand the number of occasions that police officers are in private homes in situations where they cannot be the solution to the incident.  Where it is via your street triage team, the local Crisis or Community Mental Health Team or an out of hours GP service (for primary care patients whose GP is known), you need to ensure before you start trying coercive, restrictive interventions, that we’ve tried less restrictive alternatives.  This is not (just) about audit trails: it is a requirement of the new Code of Practice which you legally cannot ignore!

CCC ACTION PLANS

Of course, today is also the deadline for areas to complete their Crisis Care Concordat Action Plans – those documents which will allow areas to ‘go green’ on the Crisis Care Concordat map.  Areas must now have identified those issues which affect their area and a solution they can work towards in order to rectify it.

How many Action Plans reference improving responses to private premises where coercive interventions are required?   I’ll help you out to prevent you reading them all – none that I’ve seen so far.  (So many areas have ‘gone green’ over the last few days, I admit I haven’t yet read them all.)  This either means that there are no problems of the kind frontline officers keep ringing me and emailing about; OR it means those who are writing CCC plans don’t fully understand the nature of the demand and the problems they face!  I took a phone call only last Sunday from a police inspector checking his thinking against a nightmare situation where no police officer at an incident had even attempted to contact mental health services for advice, support or to discuss a less restrictive response:  instead, they went straight for the fudged, unilateral approach.  It may not even have been legal and yes, that inspector had escalated the incident for proper review so I didn’t need to suggest it.

But why wouldn’t CCC action plans contain such a point: the 1983 Mental Health Act and its 1959 predecessor are very clear about the response to mental health incidents in private premises and this year’s new Code of Practice reinforces the point – it is for health and social care organisations, especially for the community, crisis nurses and AMHPs amongst us, to be able to respond to incidents in people’s homes where no criminal offence is being committed.  This is not just historically legacy: it is the view of our current Government, following last year’s review of ss135/6 of the Mental Health Act so services need to be configured in such a way as to be able to give effect to that legislation and so it really needs to be in CCC Action Plans, in my view.

DATA AT THE INTERFACE

We know there are various problems with data at the interface of policing and mental health: the main one being that no single person or organisations tends to be in possession of all the relevant data and that I don’t think anyone really knows what the ‘relevant’ data actually are!  Nevertheless, every time a police officer uses Breach of the Peace when they should have tried to engage NHS services, they prevent the situation in which our partner organisations can understand the nature of their demand and the extent to which is drifts to the police and to the ambulance service as 24/7 organisations.  If we are to be fair to the public as a whole, we need to stop doing this, to start attempting to engage health organisations so that we can more clearly see the demand in front of us and better understand how to manage it.

So if you are a police officer, please understand why the MCA, Breach of the Peace and other fudges around s136 MHA are not appropriate, now unlawful (by virtue of case-law) and how important to is to build an audit trail that would assist in protecting you were an untoward event to occur; AND which would assist in building a true picture of the nature and variety of demands that services need to be able to face, in partnership, preferably.

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The Mental Health Cop blog

Badgewon the ConnectedCOPS ‘Top Cop’ Award for leveraging social media in policing.
won the Digital Media Award from the UK’s leading mental health charity, Mind
– won a World of Mentalists #TWIMAward for the best in mental health blogs

ccawards2013 was highlighted by the Independent Commission on Policing & Mental Health
– was referenced in the UK Parliamentary debate on Policing & Mental Health
was commended by the Home Affairs Select Committee of the UK Parliament.

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Nature or Degree

It was the timing and tone of yesterday’s newspaper headlines that crossed the line for me: not any of the discussion about mental health and airline safety.  Of course, occupational health and fitness standards for pilots should be rigorous and we heard yesterday about annual testing, psychological testing, etc., etc..  By now, it may be easy to forget that when papers went to press on Thursday night, we still knew comparatively little about the pilot of the doomed flight.  We certainly did not know that he appears to have ripped up sick notes that were relevant to the day of the crash or what kind of condition they related to – we still don’t, as the German police have not confirmed it.  Whilst we did have suggestion that he had experience of depression and ‘burnout’ – whatever that means – we don’t know the nature or degree of this, do we?

There are other pilots, probably some of them flying as you read this, who have lived experience of depression.  For that matter there are people doing all manner of professional and other private things who have too.  I wonder how many moving cars you walked or drove past today and how many of their drivers have had or do have depression?  And yes, some people do end their own lives in ways that involve the use of vehicles – but we’re not proposing that everyone with any degree of depression, no matter its nature, should be stripped of their driving licence.  “How on EARTH was that man allowed to drive a car?!”  In case anyone is already thinking that the pilots actions cost another 149 lives remember there are almost 2,000 deaths a year on UK roads and that some of those figures will involve lives lost after deliberate actions involving vehicles.

NATURE OR DEGREE

Mental health professionals and mental health law talks about the ‘nature or degree’ of mental disorders.  (I still detest that terminology – it is legal language).  The Masked AMHP has written about this from his perspective as someone who has to interpret those terms in professional practice, but it essentially boils down to how acutely unwell are you and what is the nature or impact of that condition upon you.  To give an example, 1 in 100 people have schizophrenia which can be accompanied by auditory hallucinations of one kind or another.  For some patients, this is just another voice to listen to amongst many and causes little particular difficulty against the backdrop of a condition that they can live with an operate a relatively normal life.  For others, internal voices are so devastating that it can lead to incredibly self-destructive behaviours and / or substance misuse to ameliorate the impact of them.  Two patients such as these would be assessed differently, in terms of the ‘nature or degree’ of their condition.

And my point on this issue is that we still don’t really know what’s going on factually and even if we did, we could not yet understand the ‘nature or degree’ of any depressive condition this pilot may have had.  Certainly not within 72hrs of the crash happening.  This is why the newspaper headlines were premature: maybe that pilot was diagnosed with a terminal condition a week before hand and took an impulsive decision as he struggled to come to terms; maybe he did have a serious depressive condition that he was hiding from his employer and was actively suicidal?  If that latter were true, then of course no-one would question a decision to ensure he didn’t fly a plane into a mountain at 500mph.  But let’s wait and see the full facts – even the German police added on Friday to what the prosecutor in Marseille has said about their working hypothesis and they kept that development vague, so who knows what it means?!

Nevertheless, whatever we end up learning here, we do know that ‘depression’ is not and will not be the sole explanation for the crash, even if it is the most convenient or intuitive one.  Even if we do end up learning that this young co-pilot was acutely unwell and that he had concealed this well from his employer and his colleagues, I will still be more interested in learning that we have reflected on airline safety system for reasons that are far broader than concerns about a pilot’s mental health.  You can only crash a plane deliberately into the French Alps if the broader systems within which pilots are making decisions allows for such a catastrophic choice to be made by one person.  Nuclear missiles cannot be launched from submarines on one person’s say so – it is fairly obvious why things are set up this way.

JUST ONE RISK AMONGST MANY

So absolutely none of this means that we shouldn’t be having a debate about how to mitigate against this happening again – whether for reasons connected to potential mental illness or for any other reason.  I admit to wondering initially whether the crash was caused by some other human factor:  terrorism.  If my instinct had been correct and we weren’t discussing mental illness, we would still be wanting to know why it were possible for one person on a flight deck to islote the other pilot and take the decision to kill 149 other human beings.  You will have noticed that some airlines have already started putting a third qualified pilot onto their flights with a rule that two people must be present on the flight deck at all times.   There are so many other reasons why this could also prove wholly insufficient to stop similar tragedies in the future!

My point here is: the newspaper headlines we saw on Friday morning shame us all and make it more likely that such events may occur.  It is perfectly possible to write speculatory headlines as events unfold and as new information comes in without ensuring that other pilots with depression will feel they will be stigmatised for seeking help or support.    And of course if we’re not going to let people with depression fly planes, we’d best have all the driving licences back and start thinking more carefully about our military commanders, amongst other things.  The reality is we all rely upon people with a range of mental health problems to do a wide variety of things:  you have police officers and paramedics out there who have mental health problems – some have even been ‘sectioned’ under the MHA whilst very unwell and are perfectly professional people who are helping keep you alive and well after recovering.  There are other 999 emergency services personnel who have medically retired from service because the nature and degree of their condition meant it was appropriate for them to do so.  All cases on their indiviudal merits.

This post, in the end, is merely a protest against premature generalisation – we should see individuals in their specific context and if it is the case that this event looks predictable in hindsight, then let’s talk about safety systems that aren’t just targetted at pilots’ mental health problems but also those other issues that have caused even more deaths over the years.

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The Mental Health Cop blog

Badgewon the ConnectedCOPS ‘Top Cop’ Award for leveraging social media in policing.
won the Digital Media Award from the UK’s leading mental health charity, Mind
– won a World of Mentalists #TWIMAward for the best in mental health blogs

ccawards2013 was highlighted by the Independent Commission on Policing & Mental Health
– was referenced in the UK Parliamentary debate on Policing & Mental Health
was commended by the Home Affairs Select Committee of the UK Parliament.