Fifty Nine Years

I’m off to Manchester on Monday. The Care Quality Commission are pulling together an event to look at the widely ignored provisions contained within section 140 of the Mental Health Act 1983. Actually, it’s not so much ignored, as not known about – over a number of years, I’ve often dashed off the occasional Freedom of Information request to a CCG asking for their list of designated hospitals under s140 and found they write back saying they haven’t designated any, or that they didn’t know what I meant. Given how long this sort of thing has been a problem, it deserves some specific attention. And remember, the MS v UK human rights case which occurred in 2004, was an early example of inordinate delays and although the media coverage blamed the police, in whose cell block the man remained whilst admissions arguments occurred, the legal action concluded in 2012 was actually brought against the NHS and secured a verdict that the man’s article 3 rights had been violated.

Section 140 of the Mental Health Act 1983 states –

It shall be the duty of every Clinical Commissioning Group and of every Local Health Board to give notice to every local social services authority for an area wholly or partly comprised within the area of the clinical commissioning group or Local Health Board specifying the hospital or hospitals administered by or otherwise available to the clinical commissioning group or Local Health Board in which arrangements are from time to time in force — (a) for the reception of patients in cases of special urgency; (b) for the provision of accommodation or facilities designed so as to be specially suitable for patients who have not attained the age of 18 years.”

It’s becoming increasingly necessary to talk about this provision because of widespread problems achieving hospital admissions without undue delay. This is legitimately the business of the police because we know delays in being able to admit patients have been connected to deaths, unlawful detentions and other types of situation which amount to human rights violations – and we know the police, are often expected to fill a void, whether or not they have duties, powers or obligations to do so. If those three types of reason are not enough to suggest we should do something quite urgently, then I’m not sure we’re trying to solve the same problems. Police officers in 2018 have been expected to be involved in admissions process way beyond their duty, their ability and the law and we’ve seen these difficulties reflected in reports like the Mental Health Act Review by Professor Sir Simon Wessely.

RECENT EVENTS

The CQCs Manchester event is timely because we have recent reason to be asking big questions again about admissions processes. In addition to Professor Wessely’s recent report highlighting thousands of unlawful detentions a year, we have Lancashire Police raising protests in their area about the large proportion of their s136 detentions which have to go to Emergency Departments because the s136 suites are being used as temporary ‘beds’ for patients who urgently require admission when there is no space. We know from Twitter, that this includes people who remain in ED for over 3 days pending more beds or temporary solutions being found and that large parts of Lancashire’s response capability were off the road keeping people detained in ED so they couldn’t leave and harm themselves.

From an inquest which recently concluded with a finding of neglect against mental health services, we will see a Preventing Future Deaths Report submitted to the highest levels around beds and admissions processes. Knowing some the circumstances of the incident which may emerge in due course, it is one of the most remarkable vignettes I’ve seen in years. The legal points which need to be taken from it are –

• The police are under no duty to attend or remain at a MHA assessment just because they are requested to do so – the Code of Practice already makes this clear.
• The safety of patients being assessed under the MHA is a matter for the AMHP (unless legal frameworks are placed around the assessment like s135(1) warrants or arrest by the police).
• The MCA cannot be used to improvise around the duties and requirements of the MHA – we knew this already from the Sessay judgment, but it was incorrectly argued again by a psychiatric expert to justify why the police should have done things beyond their duties.
• The clear duties within the MHA need to be complied with because they are statutory duties – this appears to include s13 and s140 MHA.

So, whatever characterisation we place upon the difficulties that we all know our health service faces, straight forward compliance with legal frameworks probably needs to sit near the top of the list of priorities. If we can’t take care of basic processes like hospital admissions according to the law, then we probably need an urgent reassessment, especially where this is have a devastating impact on other organisations. We should remember, the Codes of Practice to the Mental Health Act which have existed during my police service (1993, 1999, 2008) made no mention at all of s140 MHA, until the 2015 edition. I remember receiving a draft copy of the current Code during its consultation phase and replying to wonder why on earth this legal provision isn’t mentioned even once.

FOR POLICE OFFICERS

And if you’re a front line police officer, I’d say this about your attendance at mental health crisis in private premises; your removal of someone detained under s136 to any healthcare location; or if you’re a custody officer, your detention of a criminal suspect who needs hospital admission as part of diverting them from the criminal justice without charge:

• If you think someone may require admission to hospital under the MHA, you’ve every right to say so to the NHS and to ask them to have an AMHP consider the need for an assessment – save section 13 MHA to the little folder on your phone, for reference.
• If you have removed someone to a Place of Safety under the MHA, inform an AMHP as soon as possible after your arrival there and make sure you’re reminding them of the impending 24hr deadline every few hours up to 18hrs and then every hour thereafter.
• If you are the custody officer detaining someone in the cells pending admission, you should again, make sure you escalate things early, before you reach the point where PACE detention no longer justifies holding someone in the cells and ensure the AMHP in particular is focused on potential timescale for release from PACE.
• And in all of these situations, get the duty inspector involved when you need to and remind them to consider the national escalation policy which has been circulated to all police forces by the National Police Chiefs Council – this outlines the various options and legal reminders needed to aim to resolve these difficult situations.

The bottom line of this stuff for me is this: no-one fails to realise the intense pressure the NHS is under and how relatively disadvantaged mental health services are in the cutting up of the NHS cake. That said, I don’t work for the NHS and whilst there are obvious points of law that need addressing, it seems fair enough for me to highlight them. If there’s event a hint of expectation that junior police officers should extend themselves beyond their legal duties, then it’s even more pertinent. NB: this is not about avoiding ‘doing the extra mile’ – this is about not be implicitly required to break the law, including by the deployment of ‘experts’ to analyse the police’s shortcomings who, it turns out, knew less about mental health law than the police officers involved.

A POINT OF LAW

I repeat my main point thesis – the day-to-day provision of healthcare and the role of the police in supporting it, takes insufficient regard of the legal frameworks within which it must be provided. So Monday is very welcome, but we will be standing at base camp with a very long climb ahead and some of the obstacles on the route up are cultural and organisational. And it’s timely: s140 MHA 1983 was first enacted as s132 MHA 1959 and one of the CQC’s predecessor organisations, the old Mental Health Act Commission was writing about the admissions process where beds were in short supply at the end of the last century. So we can probably agree: 59yrs after it first became law, we probably should sit down and sort this stuff out before we leave it too late.

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Winner of the President’s Medal,
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award

 

All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2018

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I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current.  Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.

Government legislation website – www.legislation.gov.uk

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