I took a phone call last week from police force X, seeking advice. A patient who had absconded from a mental health unit in police force X had turned up in a hotel well over 100 miles away in police force Y’s area – he was AWOL under the Mental Health Act 1983 which creates the legal situation that he may be re-detained where he has been found under s18 MHA. So far, so easy – the question arises, though: who should do the detaining? It’s easy isn’t it? – police force Y should re-detain the person because they are the police service where the man has been found. To make this easy, I’m going to adopt the convention this was a Birmingham patient (area X) who was thought to be in Newcastle (area Y). It wasn’t! – just makes this easier for you to follow as you read it.
Frankly, who else is going to do this?! —
- Birmingham police are not going to drive from their own area in order to do it – it’s a long journey the patient could easily have moved by the time they got there.
- Mental health services in Newcastle may be unlikely to do it – it’s simply not their patient and they owe the patient no legal duty whatsoever at that stage. It’s also fair to point out that many mental health trusts will not allow their staff to undertake the re-detention of AWOL patients.
- So that also rules out mental health services from Birmingham who are even more unlikely than Birmingham police to drive the distance to do something they wouldn’t normally do in their own area.
So who other than Newcastle police is placed to do this?! –
This question is remarkably complicated and I’ll cut to my punchline: if I were the duty inspector in Newcastle, I’d be extremely reluctant to get involved AND I would only be willing to do certain things in extremis with appropriate clinical support. So where would that support come from if mental health services in Newcastle are remaining uninvolved, as area Y’s mental health services had said?! I feel the need to say: Newcastle’s mental health services are outstanding (literally, according to the CQC) and I genuinely doubt they’d be so unhelpful. I’ve merely reached for my ‘two cities’ by way of making this example: born in Newcastle, educated and worked in Birmingham. There’s no subliminal point being made here!
Wor Claire – divn’t write in, Pet … A’ve just said ya gannin’ pretty canny up yem. Ya deein’ mint.
LEGAL CONTEXT
Firstly, some bits of law –
- The overall duty of care owed to AWOL patients belongs to the hospital and trust from which they’re missing.
- Paragraph 28.14 of the Code of Practice to the MHA 1983 states that where the location of a patient is known, the responsibility for re-detaining the person should be undertaken by mental health services and the police playing a supporting role, where necessary.
- Of course, if the circumstances in which a patient was located amounted to an emergency, nothing prevents the police attending alone and taking urgent action.
- Police in Newcastle therefore have every right to expect that the hospital in Birmingham who are the hospital / trust owing the duty of care, will undertake relevant coordination to recover their patient, given that the location of the patient is known.
- Section 18 MHA allows an AMHP, a constable or anyone authorised by the hospital to re-detain a patient who is AWOL under the Mental Health Act.
- If entry to premises are necessary, a warrant under s135(2) MHA is required unless grounds exist under s17(1)(e) PACE – to save life or limb, which is a high threshold.
This reluctance to get involved, outside of an emergency situation, is way more than legal pedantry – it’s very far from being facetious: Newcastle police, if they undertake to recover the patient on their own, are potentially putting their officers in one HELL of a position, full of uncertainty. It’s a position in which I would not put myself and therefore a position in which I would not put any officers I was leading, for various reasons. In order to outline why, I’ll need to cover some of the various problems and pitfalls that we know from history can occur where police officers becoming over-involved or over-exposed to the management of psychiatric patients who have absconded from one place to another area. There are plenty of pitfalls to concern us and they are best-managed by avoidance, not by improvisation, wherever possible. This is why detailed discussion with the hospital in Birmingham is key and why they need to take a lead in the recovery of what they law clearly regards as their patient.
However, just before I get in to the pitfalls, I just want to briefly outline two caveats to what follows – they need to be borne in mind as we work through what seems like a benign and straight-forward request to nip off to a nearby place a pop a vulnerable person back to a hospital –
- Can’t shout this enough: this is not be about refusal to get involved – it is about making sure that the extent to which police in Newcastle should become involved, we ensure they are also attending to the navigation of pitfalls in advance of encountering them. Safer and more appropriate for everyone involved.
- Can’t shout this enough, either: I am not writing here about time-critical situations – this is a situation where the patient has turned up in Newcastle and been there for several days already. If it suddenly emerged that Birmingham’s patient was in a hotel and believed to be urgently at risk or hurting themselves, police in Newcastle may just have to get on with and improvise; but improvise with the following thoughts in mind to the extent that is possible.
BEYOND PEDANTRY
So, if officers from Newcastle did attend to re-detain the patient (either urgently or routinely), there are a number of problems to navigate or avoid. They include (but are probably not limited to) –
- Once re-detained under s18 MHA, the duty is to return the patient to hospital in Birmingham which is over two hundred miles away: how will they get there?! – who is driving up or down the motorway to take them back?! Once the police have re-detained, if everyone else refuses to get involved that rather sets up police in Newcastle to sort it, whether they like that or want that, doesn’t it?!
- You might wonder already what could possibly go wrong with the police just cracking on with it?! That was certainly the view last year when a duty inspector sought my advice about being asked to move a man from police custody at one end of England to a psychiatric intensive care unit at the other end without any healthcare support. That request is a really easy one to answer, “No – not happening”.
- We know from other cases that in some transfers (not just AWOL situations), mental health patients travelling only with police supervision have become unwell during transfer for a range of reasons: complications from sudden withdrawal from psychiatric medication whilst absent without leave; seizures in transit, necessitating diversion to the nearest A&E department; patients becoming distressed at being returned and the outbreak of a violent incident in the police vehicle, necessitating the van to stop on an ‘A’ road and officers from a police force in between the two areas had to be called to help;
- There have also been incidents where patients who had been partially sedated by a doctor were then transferred without appropriate healthcare professionals in the vehicle (please see para 17.7 of the Code of Practice MHA) and the effects of medication wore off over time but no-one was there to consider the situation and it gave rise to a violent restraint. All because NHS staff forget to tell the police they were wanting the Code of Practice breached in the way they wanted the transfer done because they didn’t want to send staff.
- We know that if the police officers doing this sort of stuff are investigated around any untoward event, the first question asked is likely to be something along the lines of “What the hell were you doing this for?!” or similar.
- We should also ask where police in Newcastle are to hold the patient pending transport from Birmingham arriving to convey – are we taking this person to the police station, pending conveyance? – is there anywhere else at all the person could be taken?!
- How long would conveyance take to arrive? – history shows on some occasions that if detention occurs at or after the end of the working day, conveyance doesn’t set off until the following morning.
- So if Newcastle police detain the man at 6pm, are they going to be responsible for detaining him somewhere until late morning the following day?!
- This will inevitably lead to questions about whether they should just expedite the patient’s return to hospital themselves: if they detain the patient at 6pm and set off for Birmingham by 7pm, they’ll have the man back in hospital by 11pm and be back booking off duty by the middle of the night.
- But if they don’t, they’ll have to commit resources to the situation until the middle of the following morning – thoughts will turn, police officers being fundamentally quite practical people, to what is less resource intensive.
- But that’s only one consideration – perhaps others considerations are more important than that?
- How does police conveyance over a large distance square up against chapter 17 of the Code of Practice to the Mental Health Act 1983? – conveyance by non-police vehicle wherever possible.
- Why can’t s18 MHA re-detained AWOL patients be taken to a ‘health-based place of safety’ to be cared for by local NHS staff until such time as transfer back is arranged or where NHS staff in Birmingham and Newcastle have talked to each other about the patient being re-admitted to a bed locally, until the conveyance is arranged?
- I’ll help you out with this: there is absolutely no legal reason at all why this can’t happen, but for potential refusals in local MH services to this happening. (In all fairness to some colleagues in Newcastle mental health services who I know, I doubt they would refuse: remember this is hypothetical!).
- I know of other areas where the Area Y mental health services have refused.
WEAPONS GRADE PEDANTRY
Let’s keep going with this: there are many more questions about things which history shows may well be the result of officers getting over-exposed to this responsibility.
- We know that Chief Constables have faced civil action and complaints relating to conveyance in an undignified way.
- We know that investigations have had to occur where the kinds of questions I’m listing here are being asked.
- We know that patients during transfer are at risk – because, and this shouldn’t need saying, they are acutely or chronically ill and hence they are detained under the Mental Health Act in a hospital from which they’re currently absent.
- Would we ask the police to transfer a cardiac or orthopaedic patient on a long journey? Of course we wouldn’t.
- We know that patients who may have absconded from care may have also abruptly ceased medication for their condition and in some situations, this can become clinically significant – would you want your relative supervised by police or mental health nurses during a long conveyance?
- We also know that any conveyance where restraint may be necessary also involves raised risk.
- We also know that on some occasions, mental health services have been only too happy to let police officers transfer patients who have been partially sedated with medication, despite the fact that paragraph 17.7 of the Code outlines that such patients should be supervised during conveyance by an appropriate healthcare professional. This means someone who is not an ambulance service professional as paramedics aren’t licensed in the carrying or administration of relevant drugs.
- And here is the most advanced pedantry of all: the fact that the location of the Birmingham mental health trust’s patient is known, means that paragraph 28.14 applies to the situation; and chapter 17 should be given due regard in any arrangements to get them back to the hospital.
- The Code of Practice is not just guidance that you can take or leave, as convenient to you: it is statutory guidance with which we should comply unless there are cogent reasons for departure. This is not my view: it is the view of the highest court in our country, who had to rule on the significance of a Code of Practice.
- What would be the cogent reasons here?! A failure or refusal to plan and prepare for perfectly predictable situations doesn’t cut the mustard, frankly. It would never defend police breaches of the PACE Codes, for example – we must structure ourselves to prepare for the Codes implications, not just leave frontline staff to improvise.
- Newcastle police have no straight-forward legal duty to agree to be the agency to undertake this re-detention task as nothing prevents Birmingham mental health trust asking Newcastle’s mental health trust to do it – s18 MHA allows the Birmingham hospitals managers to authorise anyone they like to act under this provision.
- Planning should occur wherever time allows, to identify where the patient should be taken after being re-detained AND how the transport back to Birmingham will arrive. OR – consider whether the patient could be temporarily admitted to hospital in Newcastle until that transport could be arranged.
- Although the 2017 MHA amendments made no alteration to s18 MHA, it would be highly unsatisfactory for all the same reasons, to detain an AWOL patient in any part of a police station until this is worked out.
- If police in Newcastle could re-detain and remove the person on a local journey to a health-based Place of Safety to be cared for locally until transport arrives, do we think they may be less nervous about all of the potential risks and pitfalls? Of course they would.
ONE FINAL PIECE OF PEDANTRY
If I were the duty inspector in Birmingham, contacted about the missing patient and established they were in a hotel in Newcastle, I’d inform the Birmingham trust of this fact and ask them to take the appropriate action with agencies to consider the above points and arrange the repatriation of their patient. I would not be willing to get further involved, other than by passing contact details to those obliged to sort it out by talking to each other. In fairness to me as duty inspector in Birmingham, I probably have other things requiring my attention and I would have no legal obligation or practical ability to do more. Birmingham police have no legal duty whatsoever to travel to Newcastle to recover any patient or undertake local enquiries.
If I were the duty inspector for Newcastle, contacted about attending the hotel to re-detain the patient, I’d outline most of the above and ask Birmingham’s mental health services what the arrangements they’d made to take care of all of this above? Two red lines: unless there is a report of a 999 emergency in progress, I’m not attending on my own; and either way: I’m not authorising officers to keep the person held in a police station OR to transfer the patient back to Birmingham. You can see from the length of this post(!) just how much is going on beneath a request which superficially appears quite simple – “can you pop up the road and re-detain our patient for us? – pretty, please?! We need to work in effective partnership!”
It’s too easy to just crack on: pause and think, officer. This is, literally, life-at-stake stuff. History shows this.
Which local facilities would you want this person taken to? – and when will the transportation be arriving to return the patient? Newcastle police officers would NOT be travelling outside the force area in connection with this, if it were anything to do with me – appropriate conveyance should be arranged, as per the Code. Any suggestion of pedantry, obstruction, resistance is just, in fact, experience in how to side-step things that may well put the patient at risk and put the officers in professional jeopardy. It’s not pedantry: it’s leadership and it’s not up for debate, because there is no direct legal obligation on police forces to re-detain patients whose location is known and this remains true even if it’s frustrating and inconvenient for others. And just in case it was occurring to anyone to say, “But we need to work in partnership!”, I’ll just add this: partnership is not expecting police officers to breach the Code of Practice to the Mental Health Act without “a cogent reason” because large organisations with thousands of staff haven’t worked out how to talk to their local colleagues after choosing not to prepare for the predictable consequences of their business. These are Health & Safety and Human Rights issues, on occasion – so they are legal matters, and the police have every right to look at them as such.
It should not be a surprise that we don’t look at this stuff just from a practical or partnership perspective. We look at it from a legal point of view and that’s not unimportant because frontline police officers are firstly accountable to the law and the most important partnership we have is the one we must maintain with the public.
People have died when we get this stuff wrong – never, ever forget that. And just in case you do, I’ll keep reminding you.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2019
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 – http://www.legislation.gov.uk
Mental Health Cop 