A fascinating follow up article in the Guardian this week, states “the Met wins battle with NHS over not attending mental health calls”. This follows on from the Guardian breaking a story in May of this year which stated the Metropolitan Police’s intention to introduce “Right Care, Right Person” by September 2023. Following what the article claims was a “tense, behind-the-scenes row”, the discussions between the police and NHS has apparently led to agreement to do this from the end of October and instead of presumably commencing all four aspects of RCRP at once, there will be a “phased-introduction” meaning NHS services will now “race to put measures in place to pick up the work.”
The article is fascinating for a few reasons —
- The first obvious point is the Met have never said they will “not attend mental health calls” – they have said they will attend where there is a policing purpose, reflected in the law about what the police exist to do. That’s around prevention and detection of crime, the protection of life, keeping the King’s Peace, etc..
- “Phased introduction” is exactly what happened in the original Humberside scheme over an 18-month period – details of the phasing are available on the College of Policing website. I’m not hearing of any police force who is thinking about RCRP who is not talking about phased introduction.
- Occasional, small words in the article imply something big which may not in fact, turn out to be true – the article claims it will prevent the Met attending “most” mental health calls. Bearing in mind the definition of a mental health incident, I suspect it may prevent many, but question whether it will be most and again, I’m not aware of the Met claiming anything about the proportion of calls that will be affected, merely that the wish to withdraw from those which do not have a policing purpose.
- It’s seems likely the discussions have had to include debate about what would happen in a court if the police simply did refuse to doing things which their legal advice says they are not obliged to do – there is reference within to the Met being likely to win any legal challenge. That shouldn’t come as a surprise, unless those who were surprised were unaware of the legal obligations on respective organisation and this does lend weight to the view that surprised NHS managers may be quite unaware of how much work has deflected to policing which is actually the responsibility of other organisation who provide health and social care services.
- No-one is talking at all about the potential that short-staffed or under-resources NHS staff may not exaggerate the extent of risk to ensure the “RCRP Threshold” appears to be satisfied when it may not be – I’ve been asked about RCRP by a number of mental health professionals who flatly responded some NHS staff may well exaggerate risk to promote a police response to situations they cannot handle – we know this happens already, so it shouldn’t be unsurprising if it happens in the future.
IMMEDIATE RISK TO LIFE
I have to hope that behind the scenes, NHS managers and police leaders are ensuring people actually do know what “immediate risk to life” means. This phrase isn’t new or specific to RCRP, it’s a term in human rights law which would trigger the “operational duty” for an organisation to take reasonable steps to protect someone whose life may be at risk and it’s used in many legal situations, in policing and in healthcare. But in this context of mental health, the Rabone case is the Supreme Court judgment which is not widely understood, in my experience. There are plenty of people around who interpret the word ‘immediate’ as meaning something ‘imminent’, ie, it’s something happening now or about to happen now.
It may be worth reading my previous post on Rabone and immediate risk to life – it quotes from Lord Dyson who gave the lead judgment and it highlights how he expressly dismisses the word ‘imminent’, a word used by the defendant NHS trust’s lawyers to argue that Melanie Rabone’s life was not at immediate risk and therefore didn’t trigger the trust’s operational duty under Article 2 ECHR. The Supreme Court ruled otherwise, Lord Dyson explaining that ‘imminent’ was not a relevant word to emphasise and that someone’s life was at immediate risk where suicide or loss of life was a real, non-trivial possibility and a ‘present and continuing’ risk. In the particular case, it had been thought possible Melanie may die by suicide, but not assessed as probable. Nevertheless, her parents won the legal challenge that it was an immediate risk to life situation and being a Supreme Court ruling, it’s binding on lower courts and all organisations who must apply those considerations.
And people get this wrong – a lot; so if it’s key to determining whether the “RCRP Threshold” is met, those making those decisions will need to be red hot about the accuracy of their assessment given what may be at stake (human life); using all of the available information to which they have access, not just the content of a 999 or 101 call which is asking for consideration of a police response. We saw in a London inquest in June of this year, NHS staff and police were perfectly capable of misidentifying such an immediate risk and the Coroner wrote a fairly critical Preventing Future Deaths report about it all, emphasising concerns about introduction of RCRP in the capital without adequate partnership preparation.
It’s also worth bearing in mind analogous duties for an immediate risk of serious injury, which triggers very similar duties under Article 3 ECHR.
SECTION 136 CONVERSION
One final point, which was of interest to me was a quote from an unspecified agreement, mentioned in the article. It touched upon outcomes after police use of section 136 of the Mental Health Act 1983 —
“The need for this threshold [for a police response] to change is seen through our data. For example, we know that 78% of people detained under section 136 will go on to be discharged home following assessment, suggesting mental health is being over-policed in London.”
I’ve heard this debate before and written about the “136 conversation rate” debate before on this blog. We know the above quotation overly simplifies a number of things – it always has done. For those unfamiliar with what this means: for police officers to detain someone under section 136 MHA, it means the person appears to that officer to be in immediate need of care or control because of a mental disorder. It leads to their removal to a Place of Safety for assessment by a doctor and an Approved Mental Health Professional (AMHP). Subsequently, the person may be ‘sectioned’ under the MHA, admitted to hospital on a voluntary or informal basis, or referred to a community mental health team or GP for ongoing support. Some will be subject of no follow up at all, because it’s determined they are not mentally ill to any degree. The fact another officer or even a mental health professional may wonder why the officer took that decision to detain, doesn’t inherently invalidate the judgement that criteria were met (and criteria include a perception of necessity) even if judgement may be born of a lack of training, which we know still isn’t always delivered.
The are various responses to the claim that 78% ‘discharge home’ suggests over-policing, and as it’s a multi-factorial problem with a complex number of variables, most of most or all of these points will be relevant, to some extent or other —
- Mental health being ‘over-policed’ may be due to police officers simply using their s136 powers far too often, in circumstances which often lead to Approved Mental Health Professionals wondering why on earth the police thought 136 was the correct choice. This is why Baroness Hale, former President of the Supreme Court and often the lead judge on mental health and capacity law cases, stated in her book on mental health law that section 136 may be under-used.
- Section 136 could actually be under-used because we know the police often assist people to hospital on a voluntary basis where s136 should have been considered. You only have to see Preventing Future Death reports for examples of where the police have had contact and then taken a decision to let them ambulance service deal or where they’ve left someone in A&E in situations where it might reasonably be anticipated the person would simply walk out as soon as they could. A number of Coroners have had to grapple with the question, “should s136 have been used?”
- Meanwhile however, mental health could easily be incorrectly policed, rather than over-policed – it’s not uncommon to find the police using s136 MHA where it was far more appropriate to arrest someone for a criminal offence, not withstanding a view that someone may have a mental health problem. No-one thinks the police should be arresting distressed mental health patients for minor disorder or distressed, agitated conduct connected to a psychotic crisis, but what if a patient has threatened to kill someone or threatened to do that whilst in possession of a bladed weapon (real examples) or inflicted grievous bodily harm? How serious should an alleged crime be before the idea of s136 is set aside and an arrest made? We know opinions on this vary.
- Also true to point out that the ‘conversion’ rate for s136 is affected by NHS factors, which vary over time – specifically, it could be affected by how many beds they have available. Once upon a time many years ago, almost all of those detained by the police under s136 were ‘sectioned’ after assessment and there are areas of the country now where around half of people are ‘sectioned’. If only 22% of those detained in London are subsequently admitted to hospital, it may mean something is up in the capital that isn’t up elsewhere and it will almost certainly be a combination of factors listed above and below this point about NHS provision.
- “Discharged home” is an interesting way to phrase an outcome – if someone had ingested a substance and been detained under s136 MHA by the police because they said they wanted to die, and then been ‘discharged home’ by mental health services after assessment, with a referral for them to then receive ongoing community mental health care by a specialist mental health team, was that incident ‘over-policed’ just because the person wasn’t ‘sectioned’ instead? I submit it doesn’t.
- In discussion about the perceived ‘success’ of s136 usage, we often forget that many people detained by the police are not subsequently ‘sectioned’ or admitted to hospital at all, because there are specialist mental health services which can pick up care for those of us who do not require inpatient assessment or treatment. So if the assessment concludes you are mentally ill and need specialist community support, were you over-policed if the officers who detained you genuinely and reasonably believed your detention under s136 was necessary? After all, you’ve just been “discharged home”, albeit with follow up support to come.
- General practitioners have also pointed out they find it harder than previously to refer patients to secondary care, specialist services – meaning more patients who may have been discharged from s136 and sent to a community mental health team are now discharged back to their GP. Don’t forget: around 80% of people in this country with a mental health problem, receive their mental health care from their GP only. The fact this is the outcome, does not mean the person detained by the police 12hrs earlier, wasn’t in immediate need or care or control because of an obvious risk to them or others. It just means that once things have calmed down a little for that person and proper assessment made, a view was taken the person didn’t need ‘sectioning’. May still need specialist MH support, though – or from their GP.
- We also know the NHS has reduced the number of inpatient mental health beds over the last few decades therefore, it was always going to be the case that more and more people detained under s136 whilst at immediate risk were going to be ‘discharged home’, because we appear to have taken the decision that more community care and less inpatient treatment is the service provision balance we want to strike. Pointing to a declining ‘conversion rate’, is potentially just pointing out we’ve changed the balance in how services are provided.
Of course, in reality: it’s all of these things all at once. Section 136 is over-used and under-used, it’s simultaneously applied correctly and incorrectly; and it’s also both correctly and incorrectly not-applied. It’s outcomes have changed over time because of non-police factors arising from how we’ve changed our mental health services and because of police factors which are driven by cultural attitudes in policing, often influenced by leaders. RCRP is setting a new cultural standard and we already know officers in the UK are telling mental health professionals “the police don’t don’t do mental health any more” because professionals are telling us this on social media and you might ask yourself what could possibly go wrong?
So for me, a key question to ask yourself is this — if a person with unmet mental health care needs gets themselves in to a difficult position and is in immediate need of care or control and as a result of the assessment which follows, is then referred to a GP or community mental health team for support they were not previously receiving and that makes a positive difference to them, was the original decision to use s136 by the officer an example of over-policing? I submit it’s not.
I worry this whole debate is contributing to thinking and cultures which will miss the nuance of what we know goes on and what we know matters to ensuring appropriate and, wherever possible, safe outcomes. If someone thinks that s136 is merely a stepping-stone to being admitted to hospital for those of us who need that, I submit they’re not really understanding the subject and it means their analysis of s136 use (and just as crucially their non-analysis of non-s136 use!) may be missing examination of the important, multi-variate factors which in fact and in reality, drive the use of the power and drive the AMHP-led outcomes at the end of the assessment.
We can only simplify this stuff to a certain degree and over-simplifying it is replete with risks that we’ve known about for years.
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 