The next time the Home Office publish statistics on the use of s136 and the locations to which people are removed after use of police powers under the MHA, we should learn that it’s down in to double figures – under 100 for the whole country. Given that it was over 11,000 around 2008, this is quite an achievement, on the face of things. Of course, it’s always going to be “right” that people in crisis access settings which not custodial, like prisons or police stations, and the 2017 amendments to the Mental Health Act preventing the use of police cells as Place of Safety in all but the most exceptional circumstances for adults.
To provoke debate and prompt thought amongst my fellow police inspectors who must authorise this stuff(!), I would never, ever authorise the use of a police station in exceptional circumstances. This is mainly because someone matching the criteria would be at grave risk away from the kind of urgent medical support that would (or should) be available in mental health units or emergency departments and because there are clinical guidelines about best practice after the restraint of mental health patients which couldn’t be met in custody. I’d far rather resource the support that would be necessary to allow the NHS to accommodate someone without excessive risk of escape or assault. By so doing, I’d negate the applicability of the second of the three ‘exceptional circumstances’ criteria and mitigate against an untoward outcome in a medical emergency.
Recently, it was announced that the Government will bring forward a White Paper by the end of 2019 on mental health, including specific reaction to the 2018 Wessely Review of the Mental Health Act 1983. This included the news that one of the amendments will be a total ban on the use of custody for adults. By the time we’re reading that White Paper in the early New Year, this will be a challenge of limited scale: we’ll have to work out how fewer that 100 people in England / Wales can access a healthcare setting.
UNINTENDED CONSEQUENCES
As I’ve mentioned before, one of the main things to worry about with the 2017 amendments is that we knew more or less what they’d say two or three years before and there was plenty of notice that areas would need to improve the provision to match demand. Not only has the use of s136 MHA been rising, but the proportion of detentions going to Place of Safety settings rose over the last few years – the new legislation just gave that an extra impetus. But if you look on Twitter or the news, you’ll find examples of areas where they did nothing about the changes in demand or law and we ended up with queues of police vehicles outside Emergency Departments, understandably p*ssed off ED Consultants and managers having to threaten to close access to the police where s136 had been used and debates flowing about what the hell the officers would then do if everywhere in the United Kingdom was either refusing, unable or unwilling to receive someone in crisis.
This is the risk again, as some areas continue to resist the reality that s136 demand is rising and that people detained would need somewhere to go. We keep hearing the arguments – entirely without evidence that stands up to any reasonable scrutiny – that s136 is overused. I’m guessing that some areas are resisting the reality of their rising demand because they think it’s the job of the police to sort out this problem by simply using the power less – somebody, somewhere started the rumour around 2012 that s136 is over-used and it needs to be used less – they did very well in making that nonsense run because in one area where a senior police officer screamed at me “section 136 is overused and that’s just a fact” we subsequently learned that the only analysis they’d done to reach this conclusion was to ask a nurse during the daytime after having looked at the records generated after detention. They were asked to judge how many cases they thought were ‘appropriate’ as if a mental health nurse is the final arbiter of such matters. Even if we decided to accept this analysis (and I really, really don’t!), it’s still an extremely partial analysis – you’d also need to analyse arrest data, voluntary referrals or assistance to ambulance, emergency departments, etc.. It might be the case, if all you’ve done is ask a nurse to do a paper review, that you miss the reality that s136 is actually under-used.
And so now, we need to watch out for this again – the 100 people who will shortly need to be accommodated in non-custodial settings will be, by definition, some of the most challenging patients of all. I’d also take the view that they are and always were the patients most in need of not going to custody! This is the reason I’d never be prepared to authorise the ‘exceptional circumstances’ and whilst those remaining numbers are few, the challenge will be great. It will force discussion about those falsehoods we still keep hearing that “violent patients must go to custody!” I don’t apologise for pointing out again, that such dangerous nonsense continues to abound and that it is the story behind all the major deaths in police custody related to mental health in the last twenty years. It is something on which we’re still seeing new publications and I know the ambulance service is in the process of finalising guidance on Acute Behavioural Disturbance.
WE DIDN’T FIX IT
The work done over the last 10yrs has not addressed the real problem – that we deliberately over-rely upon the police service as a de facto crisis agency. We still see basic misunderstandings of law “Nurses can’t legally keep someone at a Place of Safety, so officers will have to stay” (wrong) and we don’t analyse the operations of these facilities. Remember: it has been nationally agreed guidance for 12yrs, reinforced 8yrs and 6yrs ago, that where the police have removed someone to a Place of Safety, the officers should be able to handover the patient and leave within an hour, in all but the most extreme cases. Yet it remains true that in most areas, two officers are having to remain in these locations for 5 to 6hrs.
I did the maths on the back of an envelope: if you look at the resource implications on the police service of removing 11,500 people to custody to now removing around 100 a year, but having to remain with two officers for 5/6hrs in most of the other 28,000 cases, it means the Chief Constables are collectively being required to staff mental health units and expend around three times the resource they previously were, even if demand hadn’t gone up. It could be argued that m own Chief Constable is paying the full on-costs of 5/6 officers per annum, purely for the purpose of having those officers remain in mental health settings in circumstances where national agreements say they should simply no longer be there. Of course it’s far better vulnerable people in crisis are removed to a healthcare setting but it’s a notional healthcare setting if they remain guarded by jailers and made to feel criminalised whilst they await help and support.
And mental health professionals need to understand how this links to some of their frustrations about under-involvement in the police in other areas. I was recently asked for advice around a case where mental health professionals were extremely frustrated it had taken a day and a half for the police to resource something which really did need us – ideally, we’d have resourced it far sooner and thank goodness nothing went awry! However, whilst a few mental health professionals were escalating and agitating about that struggle to resource the request, their colleagues were busy keeping officers in a health-based place of safety which national guidance and local agreement says they shouldn’t be doing.
SPEND YOUR POUND ONCE
One police officer can do one thing at a time, most usually. If you want them sitting in a health-based place of safety for reasons we can’t fathom, it follows by default that they cannot be at a house helping to return an AWOL patient. You can extrapolate that principle to all the other demands on policing, mental health related or not. The police are simultaneously over-involved and over-exposed to mental health related demand and under-performing and inconsistent in their response to demand they should be involved in. I suspect this is because a culture emerges when you’re taken for granted that nothing you think matters and you start pushing back in frustration, with the risk that you’ll push back in a few areas where you probably shouldn’t.
Operating cultures and ignorance of events gone awry is the reason things go badly wrong. And then all too often, we try like hell to blame the police – examples available on request.
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
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