Last week, journalist Emily Townsend from the Health Services Journal published an article (£) about a letter from the national director of mental health for NHS England, Claire Murdoch. She has written to senior NHS figures about the Right Care, Right Person programme which is being rolled out nationally and which was announced formally in June with the publication of the National Partnership Agreement, signed up to by NHS England, albeit unmentioned on their website and social media feeds, from what I can see.
The article says a few things of interest, worth quoting –
“NHS England has warned the decision by police forces to respond to far fewer incidents involving people in mental distress will pose ‘risks’ to both patients and a service “already under enormous pressure”. National mental health director Claire Murdoch has written to integrated care board leaders and mental health trust CEOs about the possible impact of the “right care, right person” policing model which is being rolled out across England.
…
Now, in a letter seen by HSJ, Ms Murdoch has admitted the new model is a “major change for services already under enormous pressure” and warns that implementing all of the actions set out in the national partnership agreement may take time between the police and the NHS. This took three years in Humberside, she notes.
Ms Murdoch wrote: “I know you will all be doing your best to make this work, but I am so mindful of the risks to services and people with mental health problems, as I sure your are too.” ICB chiefs and mental health CEOs are therefore being asked to report any challenges to the safe and effective implementation of the model, including the need for additional resources or risks to patient safety, to the Department of Health and Social Care.”
COULD TAKE YEARS
There is plenty to be thought and said about RCRP as it’s being rolled out and I’ve covered a reasonable amount of this blog in recent months. But one thing I’ve thought about throughout is the NHS line about how the changes they will need to make will take years to achieve. I suspect this might be right but I can’t help but feel that we’ve rather been here before. Those who’ve followed this blog from the start will remember the Crisis Care Condordat. This was a government driven publication in 2014 which aimed to create an oversight and governance process for all areas of England (and eventually Wales) to collaborate on how to improve crisis care in local areas, on precisely the topics and issues Right Care, Right Person is now addressing. So nine years ago, there was NHS England and other national sign-up, including policing, to ensure the police are not over-relied upon for things like welfare checks, the recovery of patients who need returning to hospital, conveyance of patients to hospital (for example, after being ‘sectioned’) and so on. In that period of time, there have been various NHS strategic publications to drive that activity, such as the Five Year Forward View (2016) and the NHS Long-Term Plan (2019). By definition, we must be due another strategic plan at some point soon.
I’m not oblivious to the various difficulties being faced by NHS services: we know they’ve lost thousands of mental health nurses, have had to have campaigns to attract junior doctors in to training in psychiatry and we know, perhaps must crucially of all, that demand for secondary care (ie, specialist) mental health services has gone up. We know that inpatient beds have been cut whilst that demand has gone up, so more people who require specialist mental health care are receiving that care in the community with doctors commenting in respect of hospital admission that those who need it are “going in too late and coming out too early”. Coroners have repeatedly flagged problems with ensuring timely admission to hospital, with one Coroner in Birmingham hearing evidence from senior psychiatrists that NHS mental health services are “in crisis” and writing to the Secretary of State for Health not capable of resolving the difficulties uncovered in a succession of cases where vulnerable patients lost their lives.
So people need to form their view: are those difficulties enough to justify the ongoing problems with legal compliance or should NHS managers be ensuring, as a basic requirement, their services work to legal standards? This question has many scenarios in mind: the legal duty on police forces to conduct ‘welfare checks’ relate to when there is an immediate risk to life or an immediate risk of serious injury (whether those things be due to crime, mental health crisis or anything else). This was true prior to 2020 when Humberside Police began their RCRP initiative and it remains true today in all police force areas, irrespective of whether they have formally introduced RCRP or not. So if you ring 101 or 999 asking for a welfare check, the call handler or any officer assigned to it is quite entitled to consider the request based on the law. If there is no immediate risk to life or risk of serious injury, it could be decided the request will be declined, depending on circumstances. Why would a police force decline such a request where the threshold is not met if it has the option to ensure someone’s welfare or flag problems to the NHS? Well, mainly because it will no doubt have a number of other statutory responsibilities ongoing at the same time which will have to be delayed or neglected, to prioritise the request to undertake a welfare check they have no duty to perform. Another far more important reason is, the police can’t actually do welfare checks in connection with those of us who are mentally ill – I’ve written about this before. They can merely confirm whether someone is where the caller thinks they are, whether they are alive, breathing and conscious and whether they are obviously ill, injured or intoxicated.
Whether any of that assures a third-party about someone’s ‘welfare’ is quite a different thing.
ONGOING DILEMMA
There are ongoing problems here: the law and risk. They are little discussed in the context of the debates now emerging about RCRP. The law is the law, as they say and it remains relevant to decision-making regardless of the position you take about the number of tasks we should expect of our police that are not legal duties belonging to them. Even if it is true the police have contributed to this problem by agreeing too often to these requests in the past, it also remains true the NHS (and others) have been over-relying on the police to do them and arguably shouldn’t have been asking as much. The conversation about reducing over-reliance has been going on now for at least nine years, arguably for far longer given the conversations which didn’t lead to much and then necessitated the Crisis Care Concordat.
Let’s use another example: returning AWOL patients where their location is known (another aspect of RCRP): if it is going to take years to ensure a response, one might reasonably wonder what the NHS did with the Preventing Future Deaths report from the inquest in to the death of Sasha Forster (2019). Sasha was a s3 Mental Health Act patient granted a period of s17 leave. After some difficulty whilst on leave, she was in an Emergency Department at the point when staff decided they would need to revoke her leave and return her to hospital. The police were mentioned and Sasha fled, to end her life, before she could be safely returned but the Coroner remarked in the PFD the NHS had a legal responsibility to return Sasha. In fact, the NHS mental health trust and the Department of Health and Social Care disputed this suggestion of a specific legal responsibility to return patients, pointing out the various professional groups had the same powers, including the police. But what their response did not mention was the obvious legal point that hospitals owe an ongoing duty of care towards their patients, including whilst absconded or on leave and that police duties of care kick in only where there is an immediate risk to life or risk of serious injury. The police had not been contacted about Sasha’s presence in the Emergency Department or in connection with any suggestion she be returned.
Police duties of care can kick in, therefore, where other agencies have failed to discharge theirs, for whatever reason. It is true hospitals have a legal duty to keep someone who has been ‘sectioned’ safely detained on a mental health ward, for example, but if that patient does manage to abscond and there is now an immediate risk to life, this can also become a legal duty for the police to find and safeguard the person whether or not absconding was due to any kind of omission or neglect (and it isn’t always due to either). The fact the police may win a duty of care because this threshold is met, does not mean the hopsital’s duty of care is over just because the police are now involved. Exactly how this all works in practice should be governed by proper, locally-agreed joint protocols on the operation of the Mental Health Act, for example – five topics areas should be subject to such protocols.
HOW MANY MORE YEARS?
So where are we now: we are in some kind of odd, middle-ground where some forces are talking about rolling out RCRP but not until partners are ‘ready’, despite the fact it is argued that over-policing is problematic to those of us affected by our mental health. By making no adjustment to current practices means we are choosing to willingly over-expose the public to the unnecessary over-policing we’re worried about and at a cost to other police responsibilities on which we must suppose the public wish their officers to focus. Meanwhile, health agencies seem genuinely unsure what to do with this – there is increasing acceptance money will be required and one mental health trust Chief Executive suggested some national work had estimated £260m would be required to fund the additional resource required for the NHS to cope with the implications of RCRP. This obviously includes staff who in some cases take time to train and so on.
So this could take years – and it did years in Humberside, from conception to fully running. The main problem about this “it could take years” line is something which was mentioned at the Health and Social Care Affairs Committee in Parliament on 19th September: the MPs questioning witnesses observed the Crisis Care Concordat is almost a decade old and we’re still here talking about the same things. One might legitimately wonder how many more years than nine it might take to achieve the position everyone agreed was already overdue in 2014. If the time period now thought necessary for RCRP adaptations had been taken after the Concordat, it may well be wondered whether RCRP would have been needed at all. But the decision about how we go forward from here is a decision about how much problematic over-policing are we prepared to inflict on the public, pending assessments of “ready” and at what cost? We also need to bear in mind, nothing prevents a suitably informed officer or member of staff from reacting to inappropriate requests for over-policing by politely declining – indeed, Mind’s Chief Executive Sarah Hughes suggested they are learning from some families and service users that this is what is already happening in some forces who are not yet formally ready to start RCRP.
Interesting times ahead.
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 