The Daily Telegraph recently reported (££) one police force in the UK is to become the first to charge the NHS for police time spent in relation to ‘unnecessary’ mental health calls. It was calculated that Bedfordshire police are spending 53,000 hours each year dealing with mental health related demands, which is roughly 23 police officers, full-time equivalent. The Police and Crime Commissioner has asked the force to draw up a quarterly bill for the NHS, due to unsustainable costs. He is quoted as saying “We can’t have police officers spending seven hours in A&E. It’s not just about money. It’s about the resources taken from the front-line doing proper policing jobs.”
Meanwhile in Staffordshire, the Chief Constable has been quoted (in the same article) as saying his officers could no longer spend “more time in A&E” than they do dealing with domestic abuse victims. “In terms of us becoming de-facto ambulances and transporting people and spending more time in A&Es than we do in the home of a domestic abuse victim – I’m just not going to do that anymore … we’ll give people proper notice, we’ll think about how we can build in those checks and balances and train our staff appropriately. “But if, quite rightly, I’m going to be held to account around crime, disorder and supporting vulnerable people who are victims of crime and harm we cannot be doing what we are currently doing. It’s not going to be a cliff edge but something different needs to happen.”
Inevitably, these instincts draw some comparison with Humberside Police’s initiative, “Right Care, Right Person” which saw the force give notice to statutory partners of types of demand the police would no longer be able to manage and which included “mental health crisis”. Whatever the detail, it leads to claimed savings of over 1,000 police hours per month, roughly the equivalent of five full-time police officers.
FIRST THINGS FIRST
It has been a constant theme for decades, police officers at all ranks citing mental health related demands amongst the first they name when asked about demand detracting from the crime focus policing purports to have. In fact, it’s been known for years that crime accounts for only 20% of the demand the police are contacted about and of course, police forces and their officers do have specific legal duties in connection with mental health: the police have a duty to protect life, undertake missing persons investigations, etc., and only the police have certain legal powers under the Mental Health Act 1983. Just as crucially, not all demand faced by the police is predictable and preventable – not all demand is ‘unnecessary’ and therefore your first task is to be able to define the distinction if you’re hoping to bill someone for just part of the police’s mental health related demand.
Your second task is, you’ll have to decide to which organisation you’ll send your invoice: there is no NHS, in reality, just a confederate network of disparate, overlapping but distinct organisations under a brand umbrella.
In 2013, Lord Adebowale wrote in his report on policing and mental health in London that mental health was “the core business of the police”. I know because I was interviewed by him as part of the work for that report: what he meant by comment is it’s inevitable police officers will have to deal mental health demand, to some degree. In recent years, I’ve heard of senior officers contesting the claim (that it’s core business of the police) – all he meant by that is it’s an unavoidable reality and he went on to point out in his report, “the police can’t do this on their own”. In fairness, his remit to inspect and review mental health in London was from the Metropolitan Police whose commissioner requested the inquiry. He had no specific remit or mandate to poke about in the affairs of health or social care organisations but found very quickly he simply couldn’t discuss policing’s role in isolation without involving himself in what other statutory agencies do and don’t do, which in turn drives demand to policing and creates the need for effective partnerships.
NECESSARY AND UNNECESARY
And in all of that context, these are just some of my many questions about the idea of charging the NHS for ‘unnecessary’ mental health related demand –
- How are we distinguishing between ‘necessary’ and ‘unnecessary’ mental health related demand? – this is not mere pedantry: some mental health demand for the police is unavoidable, both in terms of background factors giving rise to an incident and in terms of delays which occur after the police have assisted or compelled someone to a healthcare location for assessment. If the bill is only for unnecessary demand, that will need to be defined quite tightly.
- Are we only doing this billing in respect of mental health services, or is it going to be extended to all the other kinds of NHS trusts and services, including and the Local Authority who oversee the licensing of AMHPs? – AMHPs often contribute to delays, sometimes because of the demand they are facing and sometimes because of their non-availability but some of the delays cause by AMHPs are not the fault of the AMHPs! For example, some AMHPs are prevented from undertaking their duties because of a lack of NHS beds for inpatients.
- What legal principle or mechanism allows the police to bill other agencies in a way which could be backed up, in law? – what if the NHS refuses to pay?! Will there be civil action in the courts for the police to attempt to recover what they believe they’re owed? Some might argue that’s quite a nuclear option: public agencies suing each other.
We know that the police owe a legal duty of care to those people who they detain, regardless of the specific background as to why someone was detained and the duty of care can only be transferred to others in some specific circumstances. Webley v St George’s is just one of the civil cases which touched upon those duties and the judge in that case made it clear (in absolving the Metropolitan Police) that you discharge that responsibility where you secure another agency’s agreement to take it on, having briefed them fully about the background and risk information which is relevant to them knowing what they are agreeing to. But ultimately, the Emergency Department in Webley did not *have* to agree to take on the duty of care and I could imagine that many wouldn’t do so in various kinds of circumstance where the question of ‘unnecessary’ demand and charging may arise.
LET’S WALK THROUGH THIS
A hypothetical example: imagine an ambulance is requested to a person in mental health crisis in a public place and the person is in obvious need of care which might justify calling the police to consider legal powers under s136 MHA. These are powers which only the police have, for the avoidance of all doubt. If officers turn up and use their powers because they agree the grounds are met, is this demand necessary or unnecessary? Does that assessment of necessity change, if we knew that 2hrs prior to the police / ambulance encounter, that person had walked out of an Emergency Department unchallenged (and whilst legally entitled to do so), whilst awaiting some form of mental health assessment in ED? If the officers who turn up do use their powers to act and accompany that person to either an Emergency Department or a mental health unit Place of Safety for those detained under s136, is this demand necessary or unnecessary? If the police decide not to use their powers when the ambulance call them and the person is assisted back to A&E by paramedics, but then they leave the department again, is this necessary or unnecessary, bearing in mind we could now have a discussion about why the police didn’t use their powers when asked to do so?
Gets complicated quite quickly, doesn’t it?! … but let’s keep going, plenty more to think about:
If the police did use their powers and detain a person under s136 MHA, they could argue a reasonable expectation after their arrival at the local Place of Safety they should be able to leave the unit within half an hour (yes, really) and the person be supervised by NHS staff during the remainder of the s136 process. This expectation comes from the long-since-forgotten national standards on the operation of s136 MHA which was published by the Royal College of Psychiatrists and openly endorsed by all the other, relevant agencies in 2011. That national standard stated (on page 8) that police officers should be able to leave those detained under s136 with NHS staff within an hour, even if the patient is exhibiting disturbed behaviour. In 2013, RCPsych published some guidance to NHS commissioners which reduced that expectation to thirty minutes.
I have known some examples of this happening, but they are very few and far between and they are increasingly, quite historic examples.
COMMISSIONING
But that expectation can’t exist in Emergency Departments where people are removed there under legal powers belonging to the police: it is, quite simply, not the responsibility of the NHS trust running the Emergency Department to ensure officers can leave by taking over responsibility for someone – Emergency Departments are not commissioned to provide that function. They are obliged to provide ED assessment and care to someone for illness or injury justifying attendance at that location whether or not they are detained by the police in whatever legal circumstances. So in the above example, are we billing the ambulance trust who called the police, the acute trust who runs the ED the officers are sat in or the mental health trust because it’s perceived to be a mental health emergency? Remember as well: most people in receipt of care for mental health problems are under the care of their GP, so in some cases, they may need to think about whether to bill the mental health trust or the GP. Also worth remembering most adults with mental health needs are not receiving any care at all, estimated to be around 75%.
What about the role of the local authority, who in some cases may be the organisation you need to think about? They oversee Approved Mental Health Professionals (AMHPs) who take the decision to section someone? Many delays in ED or in a mental health PoS are due to difficulties securing an AMHP for a s136 or Mental Health Act assessment. Some areas don’t have AMHPs on duty at night since s114 MHA was revised in 2007 to remove that legal duty – it is now just guidance in the Code of Practice to ensure sufficient availability of AMHPs. We know that some delays occur because someone is detained under s136 MHA at 0100hrs, for example, only for officers to find that by 0200hrs, there is no AMHP available under after 0900hrs. Such delay is not the responsibility of the NHS at all, whether the ED trust or the MH trust.
What if following s136 assessment, someone is not ‘sectioned’ and within an few hours of discharge the person is back in a precarious position with police resources being directed to maintain someone’s safety? What if the AMHP has failed to section someone in accordance with s13 of the Mental Health Act 1983, but that comes about because the NHS mental health trust has insufficient beds? – are we billing the local authority or the mental health trust? What about when the mental health trust points out that they are commissioned to provide a certain number of beds by the Integrated Care Board (ICB) in their area and if there are not enough beds that’s really a commissioning issue for the ICB, not a provider issue for the mental health trust?! So who are we billing, on the basis of what analysis of what supposed breach of duty? … and of course, you’d have to untangle each and every incident along the above lines, to ensure you’re billing the right organisation (or combination of organisations) in each case for whichever omission you think gives rise to the expenditure of police resources. The NHS is not a single organisation: in any local area there will be an ICB, an acute trust, a mental health trust, a local authority, countless GPs which are all independent of each other and they have various overlapping and distinct legal obligations – how you work out who to bill in a particular case, I’ve no idea but you need to get it right or be ready to find the organisation to which you sent the bill simply refusing to pay it, pointing out they’re not in breach of any duty or law.
I’ll be keen to see how this plays out – and will admit to being be very surprised if I learn any Chief Executive in any kind of NHS trust says, “Yes, no problem – here’s the cash you’re claiming because we accept liability for this expenditure of your resources.”
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, 2023
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
Mental Health Cop 