Norman Lamb MP wrote to his local police force recently, asking about those kinds of cases Iâ€™ve been banging on for years now: people being held in custody for hours and hours, if not days and days, following their arrest for an alleged offence but whilst awaiting admission to hospital under the Mental Health Act 1983. The BBC covered this sort of thing last week, following the release of data by the National Police Chiefsâ€™ Council and Mr Lambâ€™s contact with Norfolk Police led to some data for his local area.
Two things struck me â€”
Detaining people against their will without an obvious authority in domestic law is an Article 5 violation; other case law outlines that protracted delays getting someone in to hospital from police custody when they are in â€˜dire need or urgent psychiatric careâ€™ can violate Article 3, also. So hereâ€™s why the MDâ€™s response to Normal Lambâ€™s findings is at least confused and at worst, quite deeply disingenuous.
The mistake that appears to have been made in the Norfolk situation is not dissimilar to the one made by Radio Four journalists on the Today programme when they interviewed Chief Constable Mark Collins about this last week: detention in police custody after arrest, pending identification of an MHA bed for an inpatient admission is entirely separate and entirely unrelated to issues around the use of or the reduction of s136 of the Mental Health Act. These two things are not â€˜these detentionsâ€™ because they are two kinds of thing.
In respect of people being detained in police custody under arrest pending the identification of a bed, the Medical Director claimed in local media coverage, â€œThrough our close partnership working with the police, we are doing a lot to avoid the need for these detentions. In Norfolk alone we estimate that we have avoided over 150 detentions under the mental health act, in the past year.â€ Itâ€™s slightly ambiguous, but Iâ€™ll bet 50p or a pound that this refers to the close working in street triage to avoid use of s136 MHA â€“ admission to hospital is â€˜detention under the Mental Health Actâ€™ so the comment simply canâ€™t relate to an admission to hospital scenario, which is what Mr Lamb is enquiring about. Detention by the police under s136 â€“ avoided or otherwise â€“ is not â€˜these detentionsâ€™: â€˜these detentionsâ€™ are, being under arrest for an offence in custody, not detention under s136. They are two different things.
And it strikes me as a real shame that a senior member of a mental health trustâ€™s executive team would either badly misunderstand the difference between these problems OR attempt to present them as being the same thing, when they demonstrably arenâ€™t, for whatever reason that happened. Of course the crucial difference between avoiding a s136 detention and avoiding a protracted delay to identify a mental health bed for admission is that one of these â€˜avoidancesâ€™ involves no laws being broken, whereas the other one involves at least three or four laws being broken, including PACE, the MHA and human rights frameworks: this is an important distinction to understand lest we find ourselves accused of playing fast and loose with the fundamental rights of vulnerable people.
Oh, and finally: finding beds is a job for the NHS â€“ I do wonder what the CCGs in Norfolk have done about their duty under s140 MHA and what policy the provider trust operates around that legal provision â€¦ as quoted in the BBC coverage of Mr Lambâ€™s discovery, to argue that â€œWeâ€™re doing our bestâ€ isnâ€™t quite good enough when we know the NHS have been spending funding for mental health services on clearing acute trust debts rather than ensuring that fundamental human rights are protected. Legally speaking, itâ€™s no defence to a violation of fundamental rights to point out the system stretched and money is in short supply. Thatâ€™s why they are â€˜fundamentalâ€™ rights â€“ they are more important than everything else!
Winner of the Presidentâ€™s Medal from
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award.