It’s all we have and it has to change

An interesting debate is ongoing at work. Officers are becoming increasingly aware of the fact that they actually have no powers to deal with mental health crises in private places and are beginning to openly ask the question

“So what should we do?”

The fact that this realisation is dawning after 30 years is also interesting.

The Mental Health Act is dated 1983 and the powers we have now are the same as they were then. Nothing has changed.

One has to ask whether the realisation is, in fact, due to the increasing number of occasions where we are being asked to deal with it or whether the message is finally getting through to officers and supervisors on the front line. Perhaps both.

This debate was kick started by an open question of “how can we reduce the number of 136 detainees we put in cells?”

I believe there are 2 responses to this:

1. We take a firm stance with the NHS commissioners and MH service providers and say that within, say 6 months, we will not be accepting 136 detainees in our cells. You have until then to get your house in order.

2. We train our officers so that they can consider options other than 136, recognise what they are dealing with and know what other agencies should be doing. Training is empowerment.

There is much to be done to improve the capability and responsiveness of Emergency Duty and Crisis Teams also. Having two people answering the phones (well – calling back after you have left a message) is not so much an Emergency service as it is a call fielding / delay it til the morning tactic.

I don’t blame the front line staff here – the system simply is not designed to deal with emergencies at all. It is mostly used to put things into a holding pattern rather than dealing with them there and then. Which often leaves the police holding the fort until such time as an “emergency” response can be mustered.

Someone has rightly recognised that police are powerless to deal with emergency MH crises in private places and has asked the same question I have been asking all this time.

What are we supposed to do?

I have attempted to answer that question and someone has then asked

“What about the Mental Capacity Act?”

I have then spent some time explaining that the MCA is not a silver bullet when it comes to dealing with MH crises in private.

More often than not, it is no more useful legislation in an MH crisis than the Badger Act 1973.

The “Sessey Judgement” spells this out for us in crystal clear terms.

Here was a case where police officers, no doubt acting in the best interests of the claimant, have entered private property with no warrant and relied on the Mental Capacity Act to restrain and remove the person to a hospital.

Upon legal challenge, the Honourable Judge has said “Oh no you don’t.”

The Judge’s ruling makes it quite clear that only Sections 135 and 136 confer powers on police officers to remove someone to a place of safety.

Section 5 and 6 of the MCA do not.

The Judge also says that the ONLY way to lawfully deal with an MH crisis in private is to get an AMHP and doctor to the scene to carry out a Section 4 assessment. If necessary with the 135(1) warrant.

Even if this is too slow and takes forever and a day it is the ONLY way it can be done as it is what parliament has given you to work with.

Some colleagues have said that we shouldn’t be trained and we don’t need extra legislation as this will create a responsibility for the police which doesn’t currently exist and will allow other agencies to expect us to deal with these situations.

Whilst I understand these points of view I disagree with them.

Whether we like it or not, the police WILL be called to deal with MH crises in public and in private. Irrespective of whether we are the best or right agency to be dealing – we can expect to be called, we can expect to be confronted with it and we have a duty to deal with it if we are.

Even if the Emergency Duty Teams were suddenly boosted to full 24/7 roaming capability and went to 90% of such calls, the police can still be expected to attend and deal with some.

At the moment we have no powers to deal with it at all.

Instead we have historically relied on The Ways and Means Act in order to discharge our moral duty (and responsibility under the Human Rights Act) to protect life.

We will arrest for Breach of the Peace or Affray knowing damn well that they will never be prosecuted but it means we can place them in custody and get someone help.

Using “offences” to deal with an MH crisis in a private place is like criminalising a heart attack.

The debate about the proper provision of Places of Safety is still needed. Ideally, nobody detained under the Mental Health Act should be setting foot inside a police station but let us leave that debate aside for now.

What is currently lacking is the ability for ANYBODY (not just the police) to take IMMEDIATE action to deal with a life threatening MH crisis in private.

If I can see someone cutting their wrists open and they appear to have mental capacity (the decision to take one’s own life is not an automatic sign of lack of capacity) then I have to get a warrant from a magistrate before I can do anything about it.

I can kick the door in and enter but to do anything else requires a warrant and the presence of an Approved Mental Health Practitioner and a Doctor.

How quickly do you think they can get to the scene of a situation like that – even after they have been diverted to swear out the warrant first?

At any time of day this is next to useless. At 2 am on a Sunday morning it is even worse.

The answer is very simple.

The judge in the Sessey case said that you have the provisions of the Mental Health Act to work with as that is all that the legislators have deemed necessary.

The legislators need to re-examine this urgently.

Either you amend Section 136 Mental Health Act to include private as well as public places (this has some ethical and libertarian concerns – understandably)

OR

Amend Section 17 of the Police and Criminal Evidence Act 1984 to allow officers to enter a premises to protect life (which they can currently do) and then DETAIN to protect life (which they currently can’t.)

The legislation could even be amended to include detail of where a person detained under such circumstances should be taken. Preferably a Place of Safety or a hospital.

Mental Health Law could then be amended to make sure that a detention under this power is treated the same as a 136 detention with the expectation that it is handed over to the NHS or MH services as the norm.

I would also point out that the kind of cases I am talking about here are the really urgent ones – the real “life or death” moment ones – someone who is about to cut themselves or hang themselves there and then.

In any other cases which are less time critical then it is only right to obtain warrants and take a slower and more considered route.

All the other issues I have previously mentioned regarding mental health provision still need to be addressed but this is perhaps the most pressing aspect.

We have struggled, making it up as we go along for nearly three decades.

Mental health crises are becoming more common, our involvement is more frequent and the situation is becoming acute.

The disparity between a situation occurring in public or private is nonsensical when the system in place for dealing with cases in private can take hours rather than minutes or seconds.

But that system? Its all we have and it has to change.

Courtesy of Nathan Constable