An email from an officer this week asked a query around police powers to use s136 Mental Health Act (MHA) when it goes against the advice of mental health professionals.
It followed a discussion about a vulnerable person who had been either seen or assessed by community mental health and crisis services a couple of times in the preceding week amidst various episodes of suicidal ideation. The most recent assessment having occurred the day before a police contact, officers had responded to a mental health incident and consulted with mental health services about potential use of s136 MHA because they were concerned that threats being made to end life would be manifested if they didn’t intervene. A reasonable enough concern for police officers who may well have known very little about the person concerned or any recent contact with services. During consultation, the officers were informed that there was “no point” using section 136 MHA because the person had been seen or assessed the day before and earlier that week, but amidst discussion about the officers concerns of what would happen if they did not intervene, they were apparently informed that use of the power against advice was pointless and would just be an “arse covering” exercise.
One quick point of law in case some aren’t aware: it is a legal requirement in the MHA for police officers who are considering use of s136 MHA to consult with a healthcare professional, where practicable. The purpose of this consultation is not specified in the law and this requirement does not mean it’s the consulted professional who is taking the decision about use of the power: the final decision remains with the police officers dealing with the vulnerable person and they remain accountable for use, or non-use, of the power.
So this all raises a few questions, doesn’t it? –
- Is use of the power legal, in circumstances where the professionals consulted are advising against it – yes, it is.
- Does use of s136 MHA amount to risk-averse decision-making, just because it’s being done against advice and suggested to be “arse covering” – no, it isn’t.
- Are there reasons why the police should occasionally think about going against the advice of healthcare professionals in these and some other, similar circumstances – absolutely.
Let me explain:
ASSESSMENT v AVERSION
Culturally, I’ve heard it argued for decades that the police are risk averse when it comes to the response to mental health related risks, like self-injury or suicide, whether accidental or intended. I think this is quite correct and it shouldn’t really be surprising: I’m not trained to make a multi-dimensional threat and risk assessment of the potential for these things. It’s literally not the job of the police to do this. I’d make a comparison as well: how many times to health and social care professionals tells the police about threats made by patients or relatives towards healthcare staff? – it could be threats to kill or harm, to stalk or harass. These things are, of course, the role of the police and there are potential criminal offences involved and officers assess and manage those threats and risks every day. It’s just as irrelevant (and lazy) to point out healthcare professionals are at least as risk averse about criminal threats as officers are about health risks: it’s quite simply not the role of healthcare professionals to assess the likelihood of whether a threat to kill or hurt someone amounts to an offence and how it should be handled. It’s the job of the people who are trained, equipped and empowered to do such things – and that’s the police.
So it shouldn’t really be a surprise that police officers don’t want to be responsible for deciding against an intervention that may safe a life where that threat and risk is health-based; or what when they do find themselves in that zone, they adopt the “better do something, just in case” kind of attitude that healthcare professionals adopt when they are aware of criminal threats and risks. Officers faced with a very poorly person who has a serious health condition would almost always call an ambulance: not up to them to start thinking about someone’s chest pain or dizziness, etc.. They may well want to take steps to mitigate an immediate risk, but longer-term threat and risk assessment of health is not their role.
But there’s one additional point to remember and it’s absolutely key, albeit very under-discussed: mental health professionals are not actually very good at risk assessment around self-injury and suicide. That’s quite a controversial claim, isn’t it?! – it’s not intended to be offensive and it’s not (just) my opinion: it’s grounded in research and borne out by learning from HM Coroner’s courts. Only this week, a Coroner has concluded an inquest in to the tragic death of Sarah Moore in Derbyshire. Sarah’s suicide occurred the day after Sarah was discharged from hospital when she had made it perfectly clear her intention to end her life once at liberty to do so. The Coroner was full of criticism for the lack of consideration around the risk involved and this is far from an isolated case: I’m immediately also mindful of the deaths of Melanie Rabone, Sally Mays and Sasha Forster where risk wasn’t adequately considered despite being known.
AGAINST THE GRAIN
This is all counter intuitive, isn’t it? – to feel like you’re pushing back when sometimes, professionals involved in mental heath assessment have used risk assessment tools to do so and they’re guiding you down a particular route. I’ve written about the work of Dr Leah Quinlivan at the University of Manchester. She conducted research to ‘stress-test’ risk assessment tools in common use by the NHS to predict risk. In the end, her research concluded that use of such tools was less predictively accurate than simply listening to people and believing them when they described their own risk. Listening to people is key, it turns out and that’s what many coroners seem to be at pains to stress in difficult cases like that of Sarah Moore. Believing people by taking them at face value is something police often do and it turns out this may often be the better approach. It certainly seemed to be at the heart of the dispute in which Humberside officers called to Sally Mays found: she was explaining the risk she felt and begging for help from mental health services. Officers called by the NHS to remove Sally from a healthcare facility were so concerned by her being turned away from they ended up in what the coroner called a ‘stand up row’ with the nurses involved, agitating and advocating for Sally when she seemed desperate.
But don’t we see the need for officers to defer to experts reinforced? – it was certainly the view of a Deputy Chief Constable of a police force in his response to a coroner despite the fact the inquest concerned was problematic precisely because the police had gone along with the implied view of paramedics who it emerged were not trained in relevant matters and in circumstances where existing national guidance in policing had outlined what was, in fact, required. So going against the grain is a difficult one: it’s sometimes a good idea and the reality of things is that the police probably need to know when to do this and when to take wise advice. That needs good training and real leadership.
In the original circumstance, deciding to use s136 MHA against the advice of those who know the patient may be the right advice, but it may not – and there’s almost literally no way to know, unfortunately. Other cases in the past involve the police using s136 MHA because they fear someone may need to be ‘sectioned’, only for mental health services to disagree and for the vulnerable person to die by suicide after discharge from s136. In other situations known to me, officers have used s136 MHA against advice only for the nurse concerned to escalate that in a long email to managers. The email itself revealed a significant legal misapprehension under which the nurse was operating: it rendered the officers’ actions against advice perfectly sensible because the nurse was encouraging a de facto detention to convey someone to hospital.
NECESSITY
Ultimately, detention under s136 MHA is a matter for the police officers dealing with a situation and opinion or advice from a healthcare professional, even where they have knowledge of the person at the centre of the decision, is only a part of what needs to be considered. Care needs to be taken to ensure the legal issues are weighed and we’ve covered, above, the reality that many NHS professionals receive only limited legal training around their roles. Care also needs to be taken to ensure we listen to people and take them seriously: if someone says they are suicidal, but assessment done days or weeks before suggests the person doesn’t need to be detained, it is worth remembering the lessons from coroners courts that we ignore what people say at our peril, especially where is a domain those people don’t practice.
It’s worth remembering this: section 136 MHA is not – I repeat, it is NOT – about starting the process to have someone “sectioned”. The wording of s136(1) MHA makes clear it’s purpose: it is about ensuring immediate care and control for someone who needs it and s136(2) outlines that this leads to an assessment but it is not – I repeat it is NOT – a Mental Health Act assessment for admission. << This is a mistake made all too often: s136 is not (just) a stepping stone to compulsory admission. It can be that, of course: but it’s not the sole purpose of the section – it’s about keeping people safe.
And what’s wrong with “arse covering” anyway?! – I submit that almost all professionals I’ve ever known do this when they end up involved in things that are not their domain of expertise. NHS professionals certainly do this when they become aware of criminal risks and threats to their or other people’s safety — they involve supervisors or specialists, they contact other more relevant agencies where that’s necessary. And I have no complaint about that whatsoever.
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, 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 