A few weeks ago and partly following a tragedy involving the police but unrelated to mental health, a brief discussion broke out on X (Twitter) about ‘welfare checks’ and the Right Care, Right Person (RCRP) initiative. During the online discussion, a doctor said this —
“The undertaking of welfare checks by the police, outside the operation of the MHA, will no longer be required under RCRP. A routine welfare check where a social worker is not expected to walk into predictable conflict, is no longer a police matter under RCRP.”
I need to pull this one apart, I’m afraid – sorry!
It’s all too often assumed medical or nursing professionals know best when it comes to legal issues affecting medicine or nursing – and we are seeing a lot of opinion and contradiction about what RCRP is (and therefore what it isn’t). So far this year already, I’ve heard police officers and Approved Mental Health Professionals (AMHPs) talking about “RCRP and section 135 MHA” when, in fact, the four phases of RCRP include nothing specific to s135. I’ve heard opinion about the so-called “threshold” for police involvement in incidents which isn’t right either. The threshold is clearly outlined in the National Partnership Agreement (NPA) from June 2023 so it’s right there for us all to read – whatever you may think about it, it’s not unclear. That said, I’ve seen in writing a letter from Policing Minister who has added elements to the published threshold and I’ve seen senior police officers quoted in the media adding elements to it which aren’t mentioned in the NPA either.
- RCRP has four phases (in the national model) —
- Welfare checks (1); hospital walkouts, inc AWOL patients (2); conveyance (3); and s136 / Place of Safety (4).
- And the ‘threshold’ for police involvement is specified as —
- Crime, in progress or happened; and an immediate risk to life or risk of serious injury.
So be careful about misunderstanding and misinformation – everything needs checking and you should carefully check what you’re hearing. In fact, as I’ve said before on this blog, you shouldn’t trust this website either – always do your own research, read actual legislation or caselaw, read the source documents for things like this and form your own, inevitably more confident view. Legal training, awareness or literacy across all public professions is pretty thin stuff and opinions can purport to be facts, so remember your ABCDE.
DOCTOR KNOWS BEST
So where does this leave us with the good doctor’s advice about what’s what? —
Well, both sentences in the quotation above are wrong – and each of them is wrong in more than one way. I’m flagging it because it risks influencing people’s attitudes and behaviours as to what they can expect or what they can request when the various professionals who must inevitably inter-connect, start thinking about their safeguarding or risk management responsibilities at the interface of emergency and criminal justice services managing mental health.
- There are no “welfare checks by the police” inside “the operation of the MHA” never mind outside — the police have no MHA-specific role on welfare checks, except to the extent that AMHPs have a right of entry (without force) to premises to check on a mentally unwell person and could, in theory, seek police support for that if they anticipate a breach of the peace.
- But it’s not the welfare check the police are doing, if they offer support – it’s the prevention of crime or a breach of the peace they’re ensuring – the welfare check remains for the other professional.
- A welfare check is not a MHA-specific, thing, except in a very limited circumstance.
- See section 115 MHA for the wording of a power for Approved Mental Health Professionals to check on the welfare of some mental health patients in some circumstances and bear in mind: I’ve never known this power used – ever!
- And the undertaking of welfare checks by the police was never, ever “required” to start with! – except where a specific legal duty was owed because of other, additional factors beyond a concern about someone’s welfare.
- So it’s not the welfare check element that is “required”, it’s the urgent risk to life / serious injury factors which are the duty.
- RCRP changed nothing about the law or the police “role”, believe that or not.
- The point, as I understand it, was to re-draw boundaries to reflect what the law has always said after practice evolved away from it for a complex combination of reasons.
- A “routine welfare check” on a human being was never a police matter, in law, especially not where it relates to healthcare issues and it’s been a frustration of front-line officers for decades that call handlers and some supervisors or senior officers either thought it was or allowed it to become one.
- Some of us have always assessed such requests according to the law on this, for over a decade.
- And finally, “welfare checks” (in their broadest conception) can be a police responsibility whether or not another professional is attending someone and whether or not they face “predictable conflict” – this can occur, for example, because of a legal duty on the police arising from Article 2 (A2) and Article 3 (A3) ECHR obligations in human rights law or where a police force has agreed to take on responsibility, for whatever other reason.
- Our doctor colleague leaves unmentioned these immediate risk thresholds, unless he’s implicitly distinguishing between them by using welfare checks to refer only to those non-emergency situations?
Let’s use an example —
Imagine a mental health nurse from a community team undertakes a visit to an address because of concerns for a mental health patient. Upon knocking the door and achieving no reply, they decide to ring the police to consider forcing entry to the premises. It has always been the case, call handlers or officers would need to think through whether to deploy and that might include consideration of how achievable the task is and whether a power of entry were available, given there was no response when the nurse knocked the door. If the police felt the task was not achievable and / or no power of entry would be available, what would be the policing purpose within?
NB: “achievable” in this context might mean, for example: are the police being ask merely to physically locate someone? – that’s achievable. Police can tell you whether someone is there or not there, once they’ve gained access. If the police are being asked to vouchsafe someone’s wellbeing both now and in the coming hours or overnight, that’s not achievable. The police don’t have the training and skills to do this and shouldn’t try, because it’s in no-one’s interests if they guess based on their clinical skills from a first-aid certificate whose syllabus didn’t once mention mental health.
ALL SITUATIONS ON MERIT
So imagine this hypothetical visit by the nurse follows the non-appearance of the patient at an outpatient clinic the previous day – he was due to attend at 1pm on Wednesday, but failed to show up and he didn’t answer his mobile phone when they called him that afternoon. The following day, a nurse is outside his known address and there is no reply from the door. The patient has no significant history of serious self-injury or suicide attempts and it’s not unusual for them to miss the occasional appointment or to not answer their phone.
- Is this an immediate risk to life or risk of serious injury incident? – no.
- It follows from that, there is no “risk to life and limb” to justify entry under s17 of the Police and Criminal Evidence Act 1984, so entry can’t be forced even if the police do turn up.
- People can take their own view about whether a uniformed officer might improve the chance of someone answering or not – but then you’ll have to debate the ethics about whether it is the role of the police to promote cooperation with the NHS.
- My own view is I tend to think the principles of autonomy and mental capacity are more important and the law agrees.
- Either way, there is no legal obligation here, for A2 / A3 purposes or anything related to a crime or a Breach of the Peace.
- It’s also worth noting, incidentally, the words “breach of the peace” do not appear in the NPA at all – it’s not a part of the RCRP threshold despite being a part of the role of the police.
Repeat this story however, but imagine the non-attendance is significantly out of character, that recent weeks had involved serious attempts to self-injure, amounting to a risk to the person’s life. This now all looks very different, doesn’t it? – it may well be an A2 / A3 obligation on the police where we can justify a view that entry to save life and limb is required, so s17 entry justified and off they go with blue lights flashing.
WHATEVER YOU THINK
We all have opinions about things – plenty about RCRP needs debating, discussing or better understanding. It’s still a relatively new programme and it hasn’t yet been comprehensively evaluated. I’m especially interested, for example, in why the College of Policing and NPCC have taken the time to write and publish the National Partnership Agreement with sign-up and support from the Home Office and the Department of Health and Social Care as well as NHS England, only for plenty of people to start adding things to what was published and which aren’t in the document.
It raises questions about what is “in” and what is “out” when thinking about the threshold.
We also know doctors and nurses are going to have to wrap their heads around this as well — NHS managers in primary care, mental health trusts and acute hospitals are also going to have to do so. The NPA is probably the place to start because that’s the document offered up as the joint agreement and which specifies the threshold with NHS England’s badge on it. Doctors should be careful to ensure they’ve understood what has in fact been agreed, especially if they are taking to social media to explain it to others.
Diverting from the terminology in the NPA risks, at best, altering the meaning of it or worse still, being seen to make things up which then don’t survive contact with reality and frustrate expectations or promoted adverse outcomes. This is important stuff, in the end – important to understand what it is and what it isn’t.
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
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