It’s been necessary to point out in various blogs over the last few months there are five areas of Mental Health Act business which should be subject to a joint protocol between statutory agencies, to ensure roles and responsibilities are understood and that staff understand what is expected of them, when difficulties situations emerge. Those five areas of business, with the references form the Code which outline the requirement, are –
- Section 136 MHA and Places of Safety – see para 16.31 MHA CoP (Eng); para 16.38 MHA CoP (Wal),
- Mental Health Act assessments in private premises, inc s135(1) MHA warrants – see para 16.31 MHA CoP (Eng); para 16.38 MHA CoP (Wal),
- AWOL patients, inc s135(2) MHA warrants (and informal patients / ED hospital walkouts) – see para 28.11 MHA CoP (Eng); para 28.11 MHA CoP (Wal),
- Section 140 MHA and urgent admission – see para 14.80 MHA CoP (Eng); para 14.72 MHA CoP (Wal).
- Conveyance – see para 17.10 MHA CoP (Eng); para 17.10 MHA CoP (Wal).
The above list does not mean this has to be five separate documents, it only means those five topics should be covered.
My own view is: I would cover conveyance in each of the other protocols because those other issues always give rise to the question of how patients are moved from A to B and it’s as easy to cover it in each of the other protocols as it is to repeatedly cross-refer, having to write “For conveyance after use of [insert MHA power], please see separate policy on conveyance”. So if asked, I’d recommend to others they draft and agree four protocols, covering conveyance as required within each of them as it relates to that topic.
REACHING AGREEMENT
Public agencies – inc the police, ambulance service, local authority, Integrated Care Board, NHS Mental Health Trust and the CAMHS / LD service provider, if different – should be agreeing these documents and this might be harder than it sounds. There are a number of discussion points within the above topics where the law does not make it obvious which agency should discharge a certain responsibility and during a hypothetical discussion between organisations seeking to develop, agree or revise a policy, you could imagine a sticking point emerging. Some examples may help –
- Returning AWOL patients – we know that Coroner’s courts have examined the question of who should return an AWOL patient to hospital. In the inquest after the death of Sasha Forster, the Coroner issued a Preventing Future Death report stating hospitals needed to ensure they have the staff available to discharge their legal responsibility to return patients. Both the trust and the Department of Health and Social care replied to the Coroner, disputing they had a legal responsibility. They pointed out that powers available to return patients are enjoyed by police, Approved Mental Health Professionals, staff of the hospital from which the person is missing and ultimately, anyone else authorised by the hospital.
- But does observation of this fact mean it is a specific responsibility of the police, for example? Well, no – not necessarily. Section 18 MHA is silent on the question of which professional, in which circumstance should be exercising powers they have and in fairness to the police, they could point out the Code of Practice MHA makes a few observations on this topic: paragraphs 28.6 and 28.14 both make statements about the responsibility of healthcare professionals to return patients, the latter being reference to situations where patient’s locations are known.
- Although they didn’t specify, this may have been what the Coroner had in mind when they said ‘legal responsibility’ of the trust. Of course, the trust do bear a duty of care in general terms to patients who have absconded from their care so whilst there may be dispute about specific circumstances, there can be no argument to suggest the trust has ‘no responsibility’ to return patients, or at least be a part of that.
So all of that needs putting in to a protocol, which should be agreed by the police, local authority and relevant NHS agencies. What happens if they can’t or don’t agree?!
NOT REACHING AGREEMENT
A coroner in London recently published a Preventing Future Death report which hints at the gaps which can emerge between organisations if there is no agreement or joint understanding. Heather Findlay was a s2 MHA patient who absconded from hospital in circumstances which the jury said amounted to a immediate risk to life. The trust reported her missing to the police, however she was found deceased by a member of the public around 45-mins after absconding. In evidence at the inquest, the Metropolitan Police suggested that kind of incident may be one that would not receive a police response because it “was a healthcare matter”. The trust however, offered no evidence of capacity or capability to able to deploy their staff outside the hospital ground to locate or return a patient. The coroner noted this as a matter of concern in the PFD notice –
“From the evidence I heard, the police / health trust partnership working allows each agency to regard such a situation as the other’s responsibility, whilst nobody is on the ground attempting to retrieve a seriously ill patient who is meant to be inside a locked ward for their own safety.
Whether this is a matter of policy or practice, the result is the same. If partner agency working is to be effective in caring for this extremely vulnerable cohort of patients, there needs to be crystal clear understanding by all those involved, from the highest policy maker to the most junior member of a team at the sharp end, of how to tackle these difficult situations and exactly who is meant to be doing what.”
[Bold is my emphasis.]
So this is the sort of situation, where a statutory guideline requires agreement, means managers will need to listen and talk to each other, understand legislation and case law (esp around what a duty of care does and does not mean and what ECHR obligations do and don’t mean) and come to a practical compromise about principles which will determine how we make sure no-one falls between the gaps. There are obviously a multitude of situations where something must happen but nothing definitive states who must do it, so how else do you put together an agreement than by discussion, listening and compromise – repeatedly over time?
UDI
The risk always is, when agencies attempt to unilaterally determine what other agencies will do, it breeds frustration – and for the avoidance of doubt: this works both ways! For example,
- For many years, despite what was said in the Code of Practice MHA, many NHS areas simply refused to provide any health-based Place of Safety facilities in an NHS building for those who were detained by the police under sections 135(1) or 136 MHA;
- Meanwhile, Emergency Departments were known to decline to receive anyone in ED under s135(1) or s136 unless the person was presenting with a ‘RED FLAG’ type condition, that merited ED attention.
- This FORCED the police to detain people in police cells in the absence of any other public building being willing to accommodate them, whislt knowing it was damaging to vulnerable people and whilst knowing it wasn’t always safe to do so but whilst having no other available option in the real world.
- It took decades and various death in custody inquiries to allow the argument to be put about how unacceptable that was to the public and families affected, as well as the officers who were left in invidious positions dealing with it all. It is in this context that I’ve found the response to “Right Care, Right Person” to be interesting, because one of the principle objections to RCRP intentions by police forces (that they will work towards deadlines to change their practice), is that it’s forcing a police position upon health organisations, without planning or notice.
- And in law, the fact the Code says these things, not the Act, meant that there was no obligation on NHS areas to provide a Place of Safety at all – and the High Court pointed out when declining permission for a judicial review, there is always an A&E department in an area if someone cannot be taken to police cells for medical reasons.
We could now re-write a lot of this approach, because the police service is now defining what they will and won’t do based on legal advice, through the Right Care, Right Person initiative. Forces are acting on legal advice which defines police responsibilities on mental health calls as being related to crime or immediate risks to life or of serious injury. Beyond that, it’s said there is no obligation on the police – except of course that there is, because plenty of things under the MHA may need doing that only the police can do, in circumstances where this particular threshold is not met. But the main point I’m making here, is the police attempt to define what the NHS will do, as the NHS previously did to the police.
DEFINING OTHER PEOPLE’S JOBS FOR THEM
It should probably just be acknowledged there is unresolved and sometimes undiscussed conflict that requires discussion at the most senior level, which we know doesn’t always happen. We saw this in the June 2023 inquest for Heather Findlay in London where the police argued there was no obligation on them to respond to any call the mental health unit may have made about Heather, because “it was a healthcare matter”. They argued that position because NHS staff from the hospital had the same powers under the MHA as the police and because it was their patient, they were unlikely to provide a response. The Coroner’s PFD is illuminating, especially when you view it against the PFD from another Coroner in Surrey after the death of Sasha Forster.
Heather was a s2 patient who absconded – Sasha was a s17 leave patient who needed to be returned to hospital after attempting an overdose whilst away from hospital. The Coroner in Sasha’s case wrote a PFD to the mental health trust and copied it to the Department of Health and Social Care, raising as a matter of concern the fact that hospitals have a legal responsibility to be able to return those patients whose s17 leave has been revoked. Both the trust and the DHSC wrote back, disputing there is a legal responsibility – pointing out that powers under s18 are available to four categories of professional. They seem to think this observation means there is no responsibility on the NHS trust to take action if, I presume for example, they could ring the police and ask them to do it. But if there is nothing in s18 MHA about the hospital having a specific legal repsonsbility – and there isn’t – then it is also true the police don’t have a specific responsibility.
So whose job is it? – “something must be done!” to safeguard a vulnerable person, but who is legally responsible for ensuring it’s done? Ultimately, the hospital have a duty of care to their patient notwithstanding the patient has absconded or failed to return: the police legal duty of care kicks on where the “immediate risk to life” and “immediate risk of serious injury” criteria are met. Imagine a situation where it’s not quite that serious or urgent, and one might argue that it does sit with the hospital or its mental health trust who, if they choose to organise themselves accordingly, could make decisions about which staff from the trust would undertake to return a patient. Also worth bearing in mind, paragraphs 28.6 and 28.14 of the Code of Practice to the Mental Health Act which has something to say about all this – highlighting the police should be called to assist in the return of a patient whose location is known, “only where necessary”.
POLICING A VACUUM
Does something become justifiably necessary for the police because a mental health trust has not considered how best to return a patient? It’s hinting towards that old adage about “Poor planning on your part does not constitute an emergency on my part” or something similar. This is why the Coroner in the Heather Findlay inquest is highlighting the importance of senior leaders ensuring joint understanding of situations where both agencies could or should become involved, reflecting the agreement reached in a joint protocol. That particular inquest made reference to just one topic on which there should be a protocol, but there are the four others to consider as well, all listed at the top.
You only have to go online and start google searching for these protocols or checking mental health trust websites to see examples of protocols which are questionable, really quite poor or even entirely absent. Just to check whether or not this outrageous generalisation still holds true, I google searched about half a dozen documents from various trusts around the country. I’d have a field day with some of them, if required to critique them after an untoward incident and all the potential reasons for doing so are covered on this blog a number of times. The Preventing Future Deaths report page is a good place to start, which should also help focus attention on what can happen if agreements aren’t reached and protocols now adequately developed in partnership.
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 