This blog is part of the series which will cover, in detail, the amendments to the Mental Health Act 1983 within the Policing and Crime Act 2017. This post is one of several which relates not the amendments themselves, but to the implications arising from them.
For background to the series, see the introductory post which outlines why I’m doing this and what other specific issues will be covered concerning laws that will come in to effect in the next few months. We now know the changes will take place on 11th December 2017.
In just over one week, we will have much less time to ensure those of us detained under s136 MHA are assessed and it will be more complicated than it was before at a time when use of this power appears to be rising*. Earlier in the year, I cut and paste sections 135 and 136 MHA on to a word document, and then went through the Policing and Crime Act, adding all the amendments so I could have a copy of the law as it will appear once implemented on 11th December. Originally just a reference tool for myself, I published it on a blog and it seems to have been quite frequently used, according to the WordPress stats dashboard I have access to. What I couldn’t help but notice when I carried out that exercise, was the word count: these pieces of legislation have considerably expanded in size – we’ve added two sub-sections to s135 as well as more than that to s136 and three whole new sections to the MHA itself – s136A, s136B and s136C.
Police officers will now need to know much more and to think much more when using s136 because the law is more complicated than it was. They will also need to be aware that in many areas of England and Wales, the NHS will find it harder to operate within the legal framework, for a variety of complicated reasons: officers will not only need to know the law and what the Plan A should be; they will also need, I suggest, a Plan B for how they will discharge their responsibilities as well as they can amidst difficulties and uncertainties – how will we handle operational incidents where the Plan A is just not possible?
I am trying really hard here not to scaremonger and it is a careful balance between that and ensuring I help to prepare my operational colleagues for the reality I am seeing. A force mental health lead told me only this week, that they have been written to by one of their mental health trusts, insisting the police detain people in custody in circumstances where the law simply doesn’t allow for it. So what will their constables, sergeants and inspectors need to know on Monday 11th December? They won’t just need to know the new laws well enough to discuss and debate; they also need to know their Plan B for how they are actually going to act if those arguments fall on deaf ears. I’m guessing if senior NHS managers are writing to insist on certain things, their frontline staff will be under orders to refuse to act contrary to those instructions.
In what may appear to be a diversion from this introduction, I wanted to highlight that I’ve been asked during this year to undertake work on policing and mental health of a kind I haven’t really had to do before. I mention this because it has afforded me new insights in to this territory which I thought would be likely to re-affirm in my mind the difficult position operational officers can find themselves in; OR it would cause me to think afresh about old ideas which have somewhat cemented in my mind over the last ten years.
I’ve been asked four times this year to act as a so-called ‘expert’ witness in legal proceedings – in one of those matters, I have written a report and given evidence in a Coroner’s Inquest, in the other three I am in the process of writing reports and legal proceedings of various kinds will happen next year (and possible beyond). By seeing the specific detail of matters which have been independently investigated by the IPCC and reached the legal stage, I’ve had to challenge myself about how I theorise the appropriate way to respond to some of the most challenging incidents officers face. I’m glad to say, this work has merely served to reinforce what I already thought and given me new grounds and new evidence to assert the ideas which I first developed when setting up Place of Safety services in the West Midlands between 2006-11. I can’t say more than that at this stage, but I’m quite able to repeat something I’ve said before many times in training, conferences and guidelines or policies that I’ve authored or reviewed –
The police cannot simply do as they are expected to do by the NHS because of their preferences, structures or funding and then hope to survive contact with all the accountability mechanisms – police officers must know what is the ‘right’ thing to do and pursue that, getting as close as they may, even if it involves managing some expectations or conflict along the way.
So, do you already know the answers to the following questions? –
Then, of course, we have to process the person and all of the above questions are a part of Plan A where everyone knows the law and the NHS have the capacity, capability and willingness to support that decision-making. Upon arrival at the first location the person is accepted in to, the new 24hrs clock starts ticking, we need to inform the AMHP whose responsibility it is to conduct the assessment. The Code of Practice MHA states the AMHP should do this with a s12 DR, whilst the MHA itself merely requires a ‘registered medical practitioner’. We know AMHPs sometimes have difficulty securing a s12 DR, but with 72hrs to play with, it’s always been possible to work through that.
What if Plan A doesn’t work? For example, what if the Place of Safety is full and if ED refuse to admit someone because they continue to insist (contrary to the Government guidance on these amendments) that they are “not a Place of Safety”? What if you work in an area which has unilaterally declared that “all violent detainees must go to custody”? Apart from the fact that the law now demands much more than someone simply being ‘violent’ (incidentally, not a word used in the Mental Health Act (Place of Safety) Regulations 2017) – even if the grounds for using police stations are met, it doesn’t mean it will be medically safe for that person to be taken there. The NHS have guidelines on these matters, but they won’t have to explain why they didn’t implement them if the police can simply be told in a local policy or by writing a letter that “anyone who is violent will be turned away”.
What’s the Plan B?! – it’s about ensuring, as the Metropolitan Police did in the Joseph Phuong case: make sure you always –
The most dangerous thinking of all – assuming it’s not worth trying something because you predict it will fail.
If you don’t try to do the right thing, the right outcome won’t happen – if you do try to do the right thing, it may happen and even if it doesn’t, no-one, anywhere will be able to say you didn’t try. Based on my recent work, I would suggest these points may make the difference between whether or not officers are treated during death in custody investigations as witnesses, or suspects.
To those who may argue things like this go wrong so very rarely, this kind of warning is pure hyperbole, I say this: firstly, it’s not you that will be in this position and police officers are entitled to ensure they can account for their use of coercive powers on vulnerable people; and secondly, yes, ‘only’ 14 deaths in police custody per year, and ‘only’ 1 or 2 of those involving people detained under s136 MHA – everytime the detention of someone with mental health problems goes very badly awry, we end up talking about the same things, over and over again.
What I’m outlining here is nothing more than ensuring operational officers can’t be accused of failing to learn the lessons of the last twenty years, where things went awry for their colleagues, some of whom ended up in a criminal court before then ending up in a Coroner’s court. And this is about the lives of vulnerable people in the care of the state – does it get more important than that when we know the system isn’t always there to support officers’ decision-making?!
NB: you don’t just ‘brace for impact’ because you think you’ll crash and burn; you do it to maximise the chance you will emerge unscathed.
* Yes, I know the data for 2016/17 showed a small reduction (of 2%), but that data omits a return from Devon and Cornwall Police who have historically used the power about as much as the touted reduction. There are also reasons to doubt the figures that have been published – I was contacted by several forces in the days following publication saying their figures were wrong. I suspect a small rise, of perhaps 2-3%, but I can’t prove that.
Winner of the Mind Digital Media Award.