We’ve probably all heard the hackneyed tale of Everybody, Somebody, Anybody, Nobody —
There was an important job to be done and Everybody was sure that Somebody would do it. Anybody could have done it, but Nobody did it. Somebody got angry about that, because it was Everybody’s job. Everybody thought Anybody could do it, but Nobody realized that Everybody wouldn’t do it.
Welcome to the interface of policing, mental health and criminal justice. My favourite example of this is the issue of health-based places of safety which is effectively one of the four Right Care, Right Person (RCRP) topics – phase 4 is yet to be implemented in many of the areas who have started the process but it will involve NHS staff to take over s136 detainees in health-settings within an hour. Good luck with that.
The Mental Health Act 1983 (MHA) requires those of us who are detained under s135(1) or s136 MHA to be removed to a Place of Safety – so where should this be?
- Well, anywhere can be a Place of Safety and nothing prevents those professionals involved in a particular case from improvising and using someone’s home address or a relative’s address, for example.
- But the MHA Code of Practice, which caselaw tells us should be complied with unless there are “cogent reasons for departure”, states agencies should agree which location will be used and when.
- Broadly speaking, you have police stations, emergency departments and mental health units as the options which could perform these roles, but ultimately any building run by an agency, including a charity or a day centre, could do the trick.
- However, no-one has a duty in law to do this – NO-ONE must do what must be done, and ultimately, people do have to go somewhere, don’t they? … or they are at risk of spending hours in the back of a police car, which has happened on occasion.
- I notice nobody ever seems to think about the human rights implications of this, because we know detention in the wrong kind of setting and failures to admit people to hospital for care when it’s urgently required, engage human rights obligations.
And what does s6 Human Rights Act 1998 say? — no organisation may act in a way that fails to ensure someone’s Convention Rights.
Back in 2016, a High Court hearing took place after the death of Toni Speck in North Yorkshire. She had died from seretonin syndrome whilst detained under s136 MHA in a York police station and an inquest investigated her death. Her family submitted to the Coroner the inquest should consider the lack of a health-based Place of Safety in the York area where Toni may have been taken and supervised medically, somewhere more appropriate to her status as a patient. The argument was the NHS had a duty to provide such a location and by failing to do so, had deprived Toni and the police dealing with her of the option to do the right thing. The Coroner rejected that submission and didn’t take evidence or consider that as any kind of factor contributing to Toni’s death.
NO LEGAL DUTY
Unhappy with this, Toni’s family brought an action in the High Court. In The Queen v The Coroner for the District of York (2016), the High Court found there was no obligation whatsoever on the NHS to provide a distinct health-based Place of Safety. They pointed out that all areas have access to an Emergency Department so if there were reason to think police custody was not appropriate, then ED could be used instead. I understood the thinking when I read this judgment, but I thought then as I think now, that I wonder if the judge had asked York ED what they thought about this. Some EDs just refuse.
In the last few weeks, I’ve had a question about Place of Safety from an area a long way from York. It released to a situation where officers had detained someone under a s135(1) MHA warrant after attending with an Approved Mental Health Professional for a planned assessment. In the particular area, it was well established that ED would not receive anyone detained under s135(1) or s136 MHA unless they had additional, urgent medical needs necessitating the kind of care ED alone can provide – beyond those circumstances it was for the police, ambulance service or AMHP to work out where to use.
The query came because there was no health-based Place of Safety available within a hundred miles of the patient (they’d checked) and in previous circumstances, they had resorted to using the interview rooms to the side of the police station front office as an improvised solution. I had to point out that was unlawful — the unlawfulness of the improvisation links to a legal change which took place since the York case. In 2017, we severely limited the circumstances in which a police station can be used – all use of a police station for children was banned and restricted, very limited use for adults, governed by new statutory regulations. It’s not just a limitation on the cell block, it’s a limitation on the police station as a whole.
EVERY AREA
So every area of the UK needs to know where patients detained under these kinds of mental health laws could or should be taken – a joint protocol should govern this. But as I type, some areas have no joint protocol, most areas who do have some provision in non-ED settings have not increased their capacity since 2010 despite the use of the power increasing significantly. So what we end up with are national statistics which suggest ED is used as a Place of Safety 35% of the time, when there is little doubt most of those patients don’t require ED services specifically, with other areas showing 50% reliance on ED. Some EDs have become so fed up of housing people who don’t need to be there, they’ve told their police, AMHP and ambulance colleagues to sort it some other way, despite the fact there may be literally no other way to do it.
It’s an interesting dynamic isn’t it? – we’ve recently see the chair of the Association of Ambulance Chief Executives (AACE) writing to the chair of the Health and Social Care committee to highlight and object to how RCRP is being implemented specially arguing that police forces should not be making changes to their approach until after the rest of the health system is in a place to handle the consequences. Meanwhile, some EDs to which this man’s paramedics are transferring patients in need of a healthcare response and who sometimes cannot secure it any other way than via ED, are being turned away along with their police colleagues, just because of a person’s status under the MHA and before it’s known the other arrangements are in place. If that’s not an equality, disability discrimination issue right there, then I don’t know what one is and it highlights the inconsistency of the NHS demanding police cannot change an approach until everyone’s “ready” (whatever that means) when the NHS itself does precisely this.
Every area needs health-based Place of Safety provision – it doesn’t have to be an ED for most people and it would be best if it weren’t but in the absence of other health options, it will probably have to be because seven years ago, the use of police stations was legally restricted. Don’t forget, the draft Mental Health Bill 2022 proposes to complete the process on police stations by removing them completely from the statutory options. So if everybody knows that this needs to happen, and nobody does anything about it because they all think somebody else should, we many up without anybody doing it and the only thing that happens next is harm to the dignity, safety and rights of patients.
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, 2024
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 