We’re well in to Right Care, Right Person territory now: various police forces talking openly about introducing the scheme which Humberside have been running their programme since 2020 after 12-18mths of preparation with partners and forces like North Yorkshire and Lancashire adopted the same scheme in 2022. This week we saw the publication of the National Partnership Agreement (NPA) which underpins the national roll-out of this programme and earlier this year, the media reported the Metropolitan Police had written to partners to notify them RCPR would be rolled-out in the capital by September 2023. The Independent claims to have seen a letter in which the Metropolitan Police has apparently pulled back from that, stating development of proper procedure for RCRP will take “two or three years”.
We have seen significant reaction to this from organisations like Mind, the Royal College of Psychiatrists and the Centre for Mental Health, amongst others – understandably so. My own tastes were best addressed by the AMHP Leads’ Network who said, it was “concerned at the speed at which the Met is unilaterally intending to act” and that the experience from the areas that had rolled out RCRP was that there was a “risk of misinterpretation of the policy” due to “poor knowledge by call agents of the nuances of the law, agreements and duties” and whilst RCRP has been described as being an attempt to ensure those of us affected by mental health problems receive the right care from the right person (or organisation), some questions have been asked about whether this is really about resources given the way it is described by police agencies in particular. The media coverage from the National Police Chiefs Council and the Association of Police and Crime Commissioners this week led with a headline that RCRP would save “one million police hours”, a claim which will require evaluation in due course but it obviously does invite debate about whether this is about resources or not. The headline could have been about improving mental health care for those of us affected but explanations from senior officers about “doing the right thing” or similar came in the explanatory comments under the headline, not in the headline pitch itself. It was interesting to note NHS England didn’t do a press release at all.
There is an un-discussed element to all of this: we know that legal advice has been obtained in the process of both Humberside and national police bodies developing this programme which is set out in the National Partnership Agreement, published last month. This was very obviously necessary to determine the ‘threshold’ about what is a police incident and what is not a police incident and the big question is: what happens now, if we know over-policing can be seriously problematic for vulnerable people but we also know the NHS isn’t ready (despite many commitments and specific initiatives over the last decade to ensure they are) for this? — should we still over-police, or not?!
NATIONAL PARTNERSHIP AGREEMENT
“The threshold for a police response to a mental health-related incident is:
- to investigate a crime that has occurred or is occurring; or
- to protect people, when there is a real and immediate risk to the life of a person, or of a person being subject to or at risk of serious harm.”
Crime or an immediate risk to life or immediate risk of serious injury. Fine – sounds very much like those things are a police matter, doesn’t it?
We know the Mental Health Act 1983 contains powers which only the police have and I’m wondering against this threshold what we are saying will happen if a circumstance emerges that does not involve crime or either of the two serious risks? For what it’s worth, I’d have wanted a third bullet point which says something “consider the exercise of police powers under the Mental Health Act” or something similar. Interestingly, I’ve seen the policing minister claim that such a thought is actually a part of the threshold, but as you can see above and from the hyperlink, I’ve quoted directly from the NPA and you can see for yourself that such a thought is not included. It’s sort-of-mentioned later on where it says “nothing prevents” Chief Constables agreeing to involvement in other things like s135(1) warrants but “nothing prevents” is an interesting piece of language. No-one other than the police can execute a s135(1) warrant so quite arguably, if the court has issued the one, the police are pretty-much-obligated to execute it because it was issued for a reason and I remind again: Coroner’s have had to become interested in delays in executing warrants.
(In case anyone should wonder where the Mental Capacity Act fits in to my thinking on all this: that would only really arise for the police in a situation covered by bullet point 2, so it barely needs stating because requests for MCA intervention by the police should be predicated upon one of those two risks.)
PASSIVE RESISTANCE
Here’s a real situation for you —
A person has been admitted to hospital under s2 of the Mental Health Act 1983 for assessment and one week later they abscond, returning home. Their partner informs the hospital, stating they are safe and calm in an immediate sense and the hospital wish to return the patient to the ward for ongoing assessment and care. They ask the police to do this and now the call handler must decide what to do?
Imagine a force where RCRP has not yet been agreed, planned or rolled out with the NHS – should the force deploy their officers to this incident? You have to give a ‘Yes’ or a ‘No’ to it, don’t you? – no other answer is possible. On the one hand, despite whatever lack of planning or preparedness by non-police partners for these situations, the Code of Practice to the MHA has some things to say about it. Paragraph 28.6 and 28.14 point out the hospital is responsible for returning patients and that police should be involved only where necessary (which is a delightfully relative and ambiguous term – one could argue necessity arises from the NHS’s inabilty to respond because no thought has gone in to the question of who would attend the house to return the patient). The police role, where they agree to play one, is to support healthcare professionals the Code says so even if police agree they should not be going alone. Indeed, chapter 17 of the Code of Practice states the police should be involved in conveyance of a person where they are ‘violent and dangerous’, which isn’t relevant to our situation. So should the police call handler refuse to deploy officers because thresholds and Code of Practice criteria are not met? – perhaps the NHS could spot-purchase a private transport commissioner to return the patient: they can be authorised to act by the hospital under s18 MHA.
But what if they don’t? – are we wanting the police to fill that gap … or not?!
Incidentally, a coroner once stated in a Preventing Future Deaths report that hospitals in this situation have a ‘legal responsibility’ to return the patient and must plan and staff their trust accordingly, but the mental health trust concerned and the Department of Health and Social Care simply wrote back to the coroner, disputing the claim about that hospitals do have a legal responsibility. They quoted s18 MHA which observes various people have the same powers, as if that is the compelling argument to suggest hospitals do not have a legal responsibility. I would actually argue they do, but I’m not a lawyer – because the owe a duty of care to their patient which is not owed by the police unless there is an article 2 or article 3 obligation because of an ‘immediate risk to life’ or ‘immediate risk of serious injury’.
But there’s no crime in our situation, no immediate risk to life or immediate risk of serious injury, so should the police deploy their officers? – does the answer change if the NHS staff asking for this claim they don’t have available staff to do this? If they don’t, are we saying the police should still decline unless and until a situation deteriorates sufficiently to tip the threshold mentioned above? And if we’re not saying that, what are we saying, in fact?!
WHAT ABOUT NOW?
This is very much about now: Most forces who’ve spoken about RCRP recently and in planning or prepration stages. By way of example, the Metropolitan Police stated they were looking to start RCRP in September 2023, but I mentioned the Independent newspaper claiming to have seen a letter which concedes it may not be possible for “two or three years” – and that begs the question about what happens in the meanwhile. Perhaps this delay is because various officers commenting about the introduction have stated that there is no question of a safeguarding vacuum being created by forces doing things in a unilateral way. They will not move on this until partners are “ready”, whatever “ready” means.
So it looks like they’ll be going to the AWOL patient situation, above – which means they best hope that doesn’t go awry as things did in Kent because statutory guidance in the Code of Practice has stated since at least 2008: recovery of AWOL patients where their location is known, is for mental health services to organise and we know there are obvious risks and problems of the police doing it instead. Fifteen years after that requirement, it’s often still requested the police undertake tasks like these despite what we know can go wrong after the case of Colin Holt (Kent, 2010) and despite what the Coroner said in the Sasha Forster inquest (2017). We know from the inquest in to the death of Lauren Finch (Greater Manchester, 2020) that even unavoidable, proportionate and necessary policing can have a terrible impact upon vulnerable people because policing sometimes about forcing people – and literally forcing them on occasion – to be somewhere they don’t wish to be. Imagine the impact of that when it’s quite arguably unnecessary, disproportionate and avoidable?
So given everything, should police forces be deploying to the situation above, if NHS organisations say they cannot resource the incident at all despite legal argument being that managers should have planned and prepared for that, especially after everything the Crisis Care Concordat (2014) was meant to bring about almost a decade ago?
CONTRADICTION
So I ended up wondering a few things —
- We know that over-policing of mental health crisis incidents occurs.
- We know that policing of mental health crisis incidents can bring about serious adverse and highly regrettable outcomes.
- We know that statutory guidance says some things should not be done by the police or should not be done by the police alone.
- So for what ever period of time it takes to get “ready”, should the police keep doing what we know all-too-well is over-policing, disproportionate and risky, or should they mitigate that potential by politely declining where the threshold is not met?
- Are NHS managers discussing these matters now? – not just the implications of paragraph 28.14 MHA Code of Practice, but also the implications of things like s6 MHA (police cannot be compelled to accept the delegated permission of an Approved Mental Health Professional (AMHP) to convey a patient; or s135(3) and s136(2) which relate to powers of detention at a Place of Safety which are enjoyed equally by those operating the place of safety as they are by the police officers who used the original powers under s135(1) or s136(1)? … there are other examples.
I keep saying it: this is why all areas need to have a suite of jointly-agreed policies and protocols on the operation of the Mental Health Act 1983. The Code of Practice references for the need for such protocols is listed as well and it should cover —
- Section 136 MHA and the operation of a Place of Safety – see para 16.31 MHA CoP.
- Mental Health Act assessments in private premises, inc s135(1) MHA warrants – see para 16.31 MHA CoP.
- AWOL patients, inc s135(2) MHA warrants (and informal patients / ED hospital walkouts) – see para 28.11 MHA CoP
- Conveyance – see para 17.10 MHA CoP
- Section 140 MHA and urgent admission – see para 14.80 MHA CoP
And we now know HM Coroners have flagged concerns about the lack of agreement between agencies on these matters, because of the RCRP discussion so I’ve been wondering whether forces who are working through the RCRP process for their rollout are revising all of their joint protocols for the MHA? … or hastily creating them if they don’t exist?! Various coroners have had things to say about the absence or quality of joint protocols over the years and they are important documents which are heavily dissected during inquests. Indeed, I’ve specifically had to dissect a number of them and the the PFDs exist to demonstrate the problems. If RCRP is a partnership process, as claimed, it will mean all five joint protocols need revision in light of legal advice and the NPA.
My experience of writing revising joint protocols is that the process can take years, literally – it really shouldn’t have to in all fairness, but it nevertheless usually does.
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 