In keeping with the broad role of the police, which ultimately can involve almost anything a society can generate where there is conflict, emotion or the potential for disorder, the police are often referees at events which are, at their essence, not police issues at all. Officers find themselves standing at arguments over child access and custody, relationship breakdown and civil debts or landlord / tenant disputes. They also sometimes find themselves refereeing disputes between the public and other professional groups about the use of invasive powers, like environmental health enforcement and mental health services.
An interesting one emerged last year and I wrote this post at the time, but delayed its publication and I’ve anonymised or removed unnecessary detail, because it shows the potential for the police to end up refereeing a legal dispute between two groups of professionals, with a patient at the centre of it all.
Police were called to an acute hospital ward in a general hospital of a small town, to a report by a patient that they were being held there by NHS staff when they should be allowed to leave. They stated they had been treated for injuries sustained in an accident but were now recovered enough to be discharged home, but staff weren’t letting them leave. When officers arrived, the staff stated they were at the point of discharging the patient, but the person had been a s3 Mental Health Act patient in a psychiatric unit several months before and they had been discharged from there on a Community Treatment Order. The argument about the patient not being able to leave arose from the mental health team stating they wanted to recall the patient from the CTO back to the psychiatric hospital. The problem with that, as ever, was the lack of an inpatient psychiatric bed meaning they could not complete the recall notice necessary to mean the patient can be detained.
So legally where are we so far? – we have someone who is not obliged to remain in the acute hospital being discharged from there after completing their treatment for an injury and nothing in play under the MHA to stop them from leaving and yet they think they’re being held.
But bear with me, it becomes more complicated.
SECTION FIVE
The mental health team had suggested a ‘workaround’, which we might otherwise call a ‘fudge’ – they asked the acute hospital to invoke section 5(2) MHA by getting one of their doctors to ‘hold’ the person under a doctor’s holding power until the bed could be found. It led to a dispute in which both the patient and the police found themselves standing. Is it lawful for an acute hospital doctor to use s5(2) MHA to ‘hold’ a patient in an acute ward where they no longer need to be for a Mental Health Act assessment by an Approved Mental Health Professional (AMHP) and two doctors?
Loads of things here –
- Section 5(2) is about any doctor in any kind of hospital holding an inpatient in that hospital location, so an AMHP can convene an assessment.
- Is this person really an inpatient now if the acute hospital is right on the verge of discharging them? … or indeed, has already done so.
- Section 5(2) is about the MHA assessment – does this patient really need one?
- If they are a CTO patient, re-admission to hospital is easily achieved by their psychiatric doctor (known as the ‘responsible clinician’ or ‘RC’) just recalling them to hospital – there is no need to conduct a full MHAA if we already know they are a CTO patient who can be recalled.
- What happens if you ring your friendly, local AMHP and ask them to sort a MHA assessment for a CTO patient, whilst over-worked and under-paid?
- Well, the AMHP may well reflect on the minutiae of section 13 MHA to consider the case and decide no MHA assessment is necessary – because the RC can just recall them.
- Finally – and perhaps I should have started with this but I wanted to highlight how wrong s5(2) really is – s5(6) MHA precludes use of both section 5 holding powers on CTO patients and certain others.
It’s unlawful to do this, quite simply – but remember our scenario here: we have a mental health team asking an acute trust to do it and the police are standing in the middle having to decide whether they are going to have to suggest any interference with the patient leaving would amount to trespass to the person. How many police officers in England and Wales have heard of s5(6) to realise it doesn’t apply to section 5? Well, I had an instinct it was unlawful but I couldnt tell you why and had to phone a friend and ask the audience to get there – then I went and read it for myself, so my best guess is “not many” or “none” will know this because the application of holding powers under s5 MHA is nothing to do with the police – at all.
But is it reasonable to think acute hospitals (who do have to consider the application of these powers) and mental health services (who we are told are specialists and experts in mental health care, which should include mental health law!) should know the ins and outs of section 5 powers to realise s5(6) MHA flatly prohibits the solution they were debating where the person is a CTO patient?
RECALLING CTOs
Remember what the mental health team are trying to do? –
They want to recall the patient from their CTO. So the recall mechanism is the legal route through this problem and if a lack of a psychiatric inpatient bed is the problem, perhaps we should be somehow improvising our way around the bed problem, rather than fudging a weird legal solution that isn’t actually legal anyway? There are a few ways you could improvise around the bed problem –
- Recall the CTO patient to the acute hospital they were about to leave – if / when a psychiatric bed arises, they can be transferred.
- Recall the CTO patient to a hospital in the area which has a section 135/6 “Place of Safety” and use that as a temporary location – this has happened in the real world for various kinds of MHA detention which are neither section 135 nor 136.
There are plenty of reasons we could object to each of these things:
- If the CTO patient is recalled to the acute hospital, who is then caring for him given the acute staff no longer need to and are not mental health nurses on that ward?
- Who will the patient’s ‘RC’ be in that hospital, given the doctors there are not psychiatrists, but those specialising in the area of medicine relevant to the injury?
- If you recall the person to a Place of Safety, you then have a knock-on impact upon the police because the PoS is either out-of-bounds entirely or running at reduced capacity until the patient is moved on from there.
- Same question arises about who would be there RC.
But you know one thing about all that, compared to the s5(2) idea? – it’s legal. That needs to count for something, in the end.
This blog aims to try to ensure officers can find the answers to these rare and impossible questions if they need to. I hope this post helps because I haven’t known this query in over twenty years of being fascinated by this area of business.
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 am not a police officer.
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 