Confidence is not Knowledge

How confident are you about your knowledge?  I was told by an inspector when I joined in 1998 “knowledge is confidence” when it comes to policing and the law.  Now I’m at the opposite end my career I’m left with the contradiction we can’t also say “confidence is knowledge”.  Confidence, most certainly is NOT knowledge!

In this post I’m going to be referring to legal knowledge about mental health and capacity law, but we probably could (and should!) ask the same question about most of what we think we know.  I’ve written on this website a number of times “Don’t believe everything you think – most of it’s wrong” to convey this idea and I use it as strap-line on my personal social media but it’s an important point framed as an important question and it speaks towards our attitudes as well.

What does it say about attitudes and casualness if we can’t explain how and why we’re correct on something, especially if we’re busy asserting it to others?

WHAT AM I ON ABOUT HERE?

A few examples for you –

• I don’t know how many AMHPs told me that you can’t secure a s135(1) Mental Health Act 1983 (MHA) warrant from a Magistrate unless you’ve already tried to gain access to the property or have reason to believe you’ll be declined entry.
• I heard this a lot before I ever bothered to read the s135 statute for myself and the one thing you immediately notice when you do, is those kinds of words appear in s135(2), but NOT in s135(1).
• You read a little more and you find in the Code of Practice to the MHA reference to a requirement for AMHPs applying for a s135(1) warrant that they explain to the Magistrate any reasons for applying where they have not yet attempted to enter the premises.
• So how can bullet point 1 be correct, given bullet points 2 and 3? – I submit it can’t.
• It doesn’t stop bullet point 1 being very confidently asserted, even recently …
• Why?!

A police example –

• Police officers taking a missing AWOL patient to hospital after they located them with injuries.
• Upon arrival in an Emergency Department of an acute hospital, the police leave the man there with NHS staff pointing out NHS staff have powers to keep the man detained whilst he’s treated and it’s up to them to return him to the original mental health unit.
• Really?!
• What part of s18(1) MHA makes that plain for all of us to see?
• It is true that some NHS staff have powers for AWOL patients, but it’s not automatically ED staff – it’s staff of the original hospital!
• It’s also true that anyone can be authorised by the managers of the hospital from which the AWOL to re-detain an AWOL patient but whether ED staff would be willing to accept that request is not obvious at all – ED always seems fairly busy without asking them to start securing a patient who was actually in the care of the police before the officers walked out on the situation, ignorant I assume of the Webley case about negligence.
• Anyone who has actually read s18(1) MHA would see this and if you haven’t read it, why would you assert things about it to others in the first place?!

Shall we do another one?  I feel we’re on a roll –

• Only the police have powers under the Mental Capacity Act 2005 to act where coercion of the vulnerable is required in their best interests.
• I’ve heard paramedics say this and an episode of BBC One’s Ambulance showed control rooms insisting on this point a few years ago.
• So where’s that written down in the MCA? – and I do mean, precisely where: which section of the Act makes this plain about coercion and police powers?
• I submit it’s nonsense and we can see that it is by just looking around us never mind by reading the MCA (gaps of shock that we might read it) –
• Do paramedics not lift unconscious people on to stretchers every single day in the UK and take them to hospital either without consent or sometimes against their will? … heart attack victims, road collision victims, drunk people or those having a stroke, etc.?!
• But ask in a room of paramedics whether they think it’s solely a police responsibility to coerce the unwilling and most hands will go up (I’ve done this exercise DOZENS of times).

One more … because why wouldn’t we?! –

• Imagine an Emergency Department ringing because of a mental health patient in distress whose behaviour is becoming concerning to staff:
• Perhaps they may walk out whilst at risk of suicide or self-injury; perhaps less often, they may start posing a risk to others in the hospital.
• “He’s already at a Place of Safety!”
• Is he, really? – what is a Place of Safety in law then?
• Yes, it’s a “hospital, police station or any other suitable place”, BUT …. and it’s an important but!
• “Place of Safety” is a legal concept which relates to people who are already detained under s135(1) or s136 MHA by the police.
• If you’re not already detained by the police and you’re in a hospital, then you’re just a person in a hospital, legally speaking.
• So please don’t use the “already in a Place of Safety” argument to justify something else, like not attending to a situation – there may be other reasons to decide not to attend, but this isn’t one of them.

CONFIDENCE IS NOT KNOWLEDGE 

We could have used other examples around investigators or mental health professionals who still think the ‘mental’ question about criminal offending is the issue of whether someone has “capacity”.  In reality, ‘capacity’ is not a concept in criminal law and has no bearing whatsoever on the questions which should be addressed to determine criminal culpability. This is made plain the CPS Guidance on mentally disordered suspects (partly because I asked them to make this clear, precisely because people keep saying these legally nonsensical things and driving perverse outcomes).

But it remains to wonder why do we think as we we do on so many of these things? – why do certain ‘zombie’ facts refuse to die, not matter how many times you explain them?!

Well, I suspect various reasons –

• Custom and precedent – that’s how we’ve always done it. It’s not really an answer, in the end, but many organisations operate on this basis and certainly where I’ve challenged AMHPs about the 135(1) example above, I’ve often heard them say something like “but that’s what I learned after qualifying and starting – because that’s how we’ve always approached it”. It’s what I once called the “law versus policy fallacy”.  If policy and practice resulting from it is to do things a certain way, we sometimes assume that means it’s because of the law, without double-checking.

• Mis-direction – sometimes, people in influential positions say things like this and it has impact on less experienced professionals, esp where the police are being told things by confident AMHPs, doctors or nurses. Because I’m about to expressly criticise many doing those jobs it’s important to point out it was AMHPs, doctors and nurses who warned me to be wary of some of their colleagues because legal training is very limited. I was once asked to deliver an input for student mental health nurses by one of their lecturers about mental health law. I assume he meant police-related, but actually no – he meant explanation of the main inpatient provisions like s2 and s3, but he also wanted me to cover police powers under s135 and warrants under s136. Obviously, the police power is 136 and the warrants are 135 – from a teacher who is teaching. Be wary of who you listen to and double check everything to your own satisfaction, including this website.

• Attitudes – I suspect some of this stuff is driven by attitudes already in existence. It’s been a thing for decades, for example, to assume mentally disordered offenders can’t be held criminal responsible and that mentally disordered victims must be unreliable witnesses. We’ve seen the cases where these things play out but if poor attitudes continue because all of those holding them are not trained properly in what the inquiries, investigations and inquests are teaching us (when they really shouldn’t have to) is it any wonder certain views refuse to die?  And where attitudes amongst influencers isn’t quite right and they say things which aren’t accurate, we’re back to mis-direction, however well intended it may be.

MY FIRST LEGAL HEADACHE

The very first mental health law headache I had shows what might go wrong.  Along with another probationer, we were sent to an address to locate a missing person – this is back in 1998. The lady in question was Absent Without Leave from a hospital where she was a s3 MHA patient.  We attended her home and knocked the door, she came to the window and waved at us but refused to open the front door, saying she didn’t want to go back to hospital. In fairness to her, it was an old Victorian asylum building – absolutely horrible place and I was glad to see it de-commissioned, sold to the prison service and turned in to a training building for them after considerable redecoration and refurbishment!

My colleague and I debated powers of entry and neither of us knew of one which applied to this situation so in the finest traditions of the service we shouted, “Sarge!” and asked for some guidance. Our sergeant was a good guy, very “by the book” but he’d just spent the best part of a career investigating murders on the homicide unit so he had no working knowledge of the MHA at all, by his own admission.  He rang the ward she was missing from and later told us the conversation went a little bit like this –

“Hi – this is Sergeant [SURNAME] from the police.  We have two officers at the address of the lady you reported missing.  She’s there but she’s refusing to open the door.  I’m afraid we’re a bit unclear about the power of entry – can you help with whether we can force entry to the building if we know she’s there?”

“Oh, yes sergeant – she needs to be in hospital.  You can definitely force entry to return her for us.”

“I’m fairly new to this stuff because I’ve been a detective for years – would you mind telling me where in the MHA I’ll find that authority to force entry.”

“Err … but she needs to come back to hospital. It’s probably not safe for her to remain at home.”

“I appreciate that, not suggesting otherwise – but this is not a ‘life or limb’ situation. She’s chatting happily enough at the window with officers and no sign she’s injured or distressed.  So the question is just which statutory provision enables us to force entry without it being a ‘life or limb’ emergency?”

“Err … I probably need to speak to my manager.”

“OK – I’ll assume you don’t know then, until you ring me back but obviously, we won’t be forcing entry until we know.”

We were told to clear off until the NHS rang back and they didn’t, at least not during my shift. As the youngest in service probationer, I was then tasked with searching the Police National Legal Database for the answer and it didn’t take long to find, actually.  The answer is a stated case of D’Souza v DPP (1992) – officers forced entry to recover an AWOL patient under the ‘life and limb’ provisions of s17 PACE and then brought a legal claim.  The court found for the patient stating the police needed a warrant under s135(2) MHA and s17 PACE did not apply because it wasn’t a ‘life and limb’ situation.

Be careful who you listen to and question your own knowledge.  Why do you think what you think and can you reference it to a statute, regulations or the Code of Practice.  And do you understand the difference between those things?

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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

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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