Countless times before, I’ve mentioned Professor Jill Peay’s remark from her (exceptional) 2010 book Mental Health and Crime that work done at the interface of mental health and criminal justice is amongst the most complex that will be done by any of the professionals involved in it. When it comes to policing and mental health, I’d go a little further because policing is often done under time constraints and whilst knowing all too well you probably have very incomplete information and yet must still make a decision. For the years I’ve worked on this, I’ve known many professionals who want this to be simplified – especially the legal aspects – to aid understanding and to allow incidents to be worked through quickly and effectively. It’s a quite understandable instinct but this post is about the urge to simplify and the risk of over-simplifying.
There are three different ways in which a Community Treatment Order can be recalled and where the NHS are looking to recall someone, all the police really need to know (if they become involved in the process at all) is whether or not the recall process has been completed properly to render the patient “AWOL” under the Mental Health Act (MHA) – this means ‘absent without leave’. So when writing policy or giving training, it may not necessarily be worth boring police officers or paramedics about the three different ways in which the recall can happen and what the intricacies are, because they are a matter for the doctor authorising the recall. It might be necessary for police or paramedics just to know the key question to ask: “is this person AWOL under the Mental Health Act now?” Because ‘yes’ = legal powers are available to assist; and ‘no’ means no are (yet) powers available (and yes, the legal power involved in this scenario is not exclusive to the police – s18 MHA can be exercised by anyone authorised to do it, ultimately). But here’s the complexity: you only have to work in this domain for a while to realise doctors don’t always know the point at which powers for police, paramedics or professionals kick in or even what is required to recall someone and they have been known to demand someone’s return when it would be unlawful to do so. This has included expectation a person will be held in police custody for many hours or even days until a bed can be found. For a CTO recall, you need to serve a notice which specifies the relevant hospital therefore in practice, you need to know the relevant hospital has a bed and is willing to receive the person being returned.
I’ve had to refuse to force someone to hospital unlawful, after it became obvious the recall notice had not been properly served so do we need all supervisor to know this – or do we simplify by just asking them to confirm someone is “AWOL” now and then tell them to rely on the doctor’s answer, if it’s challenged. After all, it would be for the doctor to justify why they said yes and section 139 MHA may be of some protection to the officers and force concerned, if they were legally challenged for something where it was found the doctor was at fault for providing mis-information.
FLOWCHARTS
It’s tempting in this area to draw flowcharts or process maps: I drew a few when I didn’t know any better, but it’s something I’ve long since stopped. In my experience of drawing, reviewing or using them, they rarely work well because of complexity. The variables which are relevant to decision-making in policing and mental health and vast and numerous as well as subtle and so reducing that to a process map means you either over-simplify things to such an extent it gets you to the wrong conclusion all too often, or you end up with a flowchart which looks too much like the London Underground map. I’ve just written three paragraphs about CTO recalls and that’s just one small part of the MHA – imagine the complexity of s135(1) warrants or MHA assessments without warrants, the return of conditionally discharged patients under Part III MHA or the immediate risk to life debate which will become important in coming months and years. Things are unavoidably complicated because you’re managing sensitive vulnerabilities amidst various kinds of threats and risks, often in a time-limited situation and in a legal context which was developed in the 1950s for a mental health system which no longer exists. Our models of care have evolved away from the law to such an extent, practice doesn’t always reflect the law – try policing that amidst accountability systems for officers which expect them to conduct themselves lawfully!
For these reasons, I stopped drawing flowcharts many years ago and have been known to refuse to do them for other work I’ve done, where it was suggested “we just need a flowchart at the back”. OK, but you’ll have to get someone else to design it because I think they’re really unhelpful and I do have another idea instead — and the idea is reflected in the Quick Guides on this website: short, bullet point style aide-memoirs which set out the things to think about –
- What is the objective here?
- What legal or medical considerations have bearing on the decisions?
- What are the broad options available?
I found this approach to be better, because there is only a certain extent to which the inherent complexity can be reduced.
WARRANTS
So let’s do the thing on warrants!
Where mental health services believe someone is becoming unwell and they want to attend the location to assess that person and potentially ‘section’ them, questions start to arise about how to get lawful access to someone in their home. If the patient has a relative who is assisting the professionals, it may be that a patient’s spouse may grant lawful access, for example. But where access cannot be secured, an Approved Mental Health Professional (AMHP) may feel a warrant under the MHA is required – s135(1) MHA refers to this.
Some police forces or police officers in times gone by have adopted a policy position of “no warrant, no police” for reasons which are about pushing back a little on what is seen as inappropriate demand, attempting to make it more straight-forward to triage calls. Where an AMHP rings up “can I ask for some police officers to support a Mental Health Act assessment?” they may find the call handler asking, “Do you have a s135(1) warrant?” The answer is then used to determine one of two options – “Yes” or “No”! Underpinning this approach is an assumption that where no warrant has been obtained, there will be no real policing purpose achieved by officers attending.
But we know there are a number of problems with this approach —
- The AMHP may have tried to obtain a warrant and been turned down by a Magistrate – if the situation is still unpredictably risky and mental health professionals could be seriously hurt, it may still justify police officers’ attendance even without a warrant.
- The AMHP may be managing an urgent situation where there is no time for a warrant application – if they need officers quickly to help manage that urgent risk, it may still be justified to feel there is no time to secure a warrant (the process can take hours).
- The grounds for a warrant may not be met – a MHA warrant is about the patient to be assessed and it could be the police are required because of an obstructive or even threatening relative at the location, rather than because of the patient. Remember: it is a criminal offence to obstruct an AMHP in the course of their work, police may be required to assist in managing that, especially where it’s happened before and NHS staff and the AMHP attending a MHA assessment would be considered ’emergency workers’ for the purposes of legislation around assaults.
In all three situations (and some others I’ve not listed), the AMHP coordinating the assessment may have perfectly legitimate need of police support, but they risk not getting it if someone is playing “no warrant, no police” because of an over-simplified policy position which has failed to consider the above situations. It is and always has been much more complicated than “no warrant, no police”. And whilst we’re talking about s135(1) warrants, I re-issue a plea on behalf of all AMHPs for police officers and staff to stop insisting that you “execute your own warrants!” They can’t: only the police can execute a s135(1) or s135(2) warrant, even if the warrant has been sworn out by an AMHP or other mental health professional.
It’s YOUR warrant to execute, not theirs!
ONLY SO FAR
So you can simplify or condense complicated issues only so much before the you then risk over-simplifying them – and there’s a balance to be struck if we’re to avoid building in risks to unthoughtful processes. The example of warrants shows how over-simplified some approaches are and they have been discussed in coroner’s courts to establish whether or not they have contributed to someone’s death. Of course, we need to ensure hundreds of thousands of police officers, nurses, doctors, paramedics and AMHPs (amongst others) know how to approach the interface between the agencies and they can’t all be experts so policy and procedure to simplify is required – as well as access to some people who do have the necessary knowledge to guide others if things are becoming complicated. We know it’s pointless attempting to train everyone in all aspects of situations which may come up with mental health law because some situations are incredibly rare – CTO recalls being an example of this. I also wrote earlier this year about a situation where an English patient has absconded to Scotland and the debate emerged about whether Scottish Police have powers to re-detain English patients north of the border. In all my 20-years of interest in this subject area, I’ve had those cross-border queries about a handful of times, so there’s no point pretending that all staff can or should know this – they just need to know how to find out.
I also once dealt with a situation where a sergeant had been accused of fumbling a police response to a request to assist with returning a patient who had been recalled from a CTO. The sergeant had never heard of a CTO and the request to him had no made mention of the fact the patient was simply “Absent Without Leave” under the MHA and could be treated as if he were just “missing” from s3 MHA. Somewhere in amongst all that, he confused himself to tears and got it wrong – hardly the crime of the century and something that would have been avoided if those requesting police assistance had explained it correctly. So surely “he needs retraining”, came the call? – well, patients on CTOs are recalled only very infrequently and there are tens of thousands of sergeants across the UK. Do we want tends of thousands of hours spent on training for situations that the vast majority of those sergeants will never, ever handle? Or should we expect mental health professionals who deal with such patients much more regularly, to have the requisite legal knowledge to brief sergeants on these rare situations, so they know what is expected of them. Well yes, we should – alas I long ago learned not to trust legal views given by mental health professionals and it’s not because many of them are legal eagles: some have exceptional knowledge and there are plenty I’m prepared to trust. But a mental health professional I do know know well? – no chance. I’d always look things up for myself if I didn’t know or take advice elsewhere.
So we need clear policy guidance and some reference materials along with just some staff who are knowledgeable enough to either know this stuff or know how to find out the answer quickly and we need better mental health and capacity law training for our colleagues in the NHS and AMHP services. The Quick Guides on this blog are a start towards the reference materials but they are not the only way to do it and they don’t answer every conceivable query. However you do it, though – don’t over-simplify things to such a degree that you end up with the wrong answer and find yourself being questioned about that in a Coroner’s court after the worst of all outcomes.
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 