When I started proper work on the subject of policing and mental health, I had not the first clue where to start – there was no course you could ask to go on. I came to this agenda originally precisely because of my professional ignorance, but also my uncertainty and my fear – there was no personal agenda in the background of this. I’ve been asked more than once whether I used to be a mental health nurse – no, I didn’t. I’ve been asked whether I, my family or close friends have experienced mental health issues – actually, none of your business, frankly but I’ll restate that the essence of my curiousity fand frustrations was professional.
Without that first clue, I did what seemed instinctive to me as a police officer: I picked up the Mental Health Act 1983 and read it – then I read it again. I also read the Code of Practice to the Mental Health Act – and yes, I do mean all of it. When the Mental Capacity Act received Royal Assent and when it’s Code of Practice came out, I read those too – I’m a policeman: I look at things legally and I do still regularly re-read this stuff as I also do with other legislation (Public Order Act 1986 and PACE 1984, most recently). But I’ve been receiving feedback lately that we shouldn’t be too worried about the legal stuff – we can’t legislate for every scenario and society and services change over time … if only more senior police officers “just understood” that things will not always be done legally, it would help if we “worked in partnership”.
This euphemistic attitude leaks all over our NHS, quite frankly – remember some years ago an award-winning documentary was filmed in the South London and Maudsley mental health trust called Bethlam? There was one episode where a senior doctor on screen unlawfully detained a man on the ward, depriving him of liberty by denying a voluntary patient the right to leave when he chose to do so but without actually formalising his detention under the MHA in order to legally prevent him from doing so and thereby at least affording him some rights to challenge his detention and have it scrutinised. It what’s known in the business as a de facto detention and the CQC often criticise this when it happens. The following day, the medical director of the trust did a social media Q&A where I fired in the question about the de facto incident and was straight-forwardly told, “I think it shows how difficult some aspects of the MHA are in reality.” As if that’s the end of that and the liberty of vulnerable people comes second to professionals taking the time to understand their obligations.
This type of thing is not obscure, arcane legislation: unlike, for example s140 MHA which many senior psychiatrists have acknowledged they haven’t heard of, never mind understood or considered. It should be page one: don’t detain other human beings against their will unless you know the legal authority by which you’re doing it – patients have rights and they are written down to give you advance notice of what they are. Your duty is also to protect those rights (s6 HRA 1998, etc.) and this stuff isn’t actually that hard – just read it and attempt to understanding it. That’s all I ever did. Detention without lawful authority is an Article 5 violation. It being too difficult to find a bed quickly enough to get someone who is degraded by days on end in police custody, is potentially an Article 3 violation (see MS v UK). And of course, let’s not forget there have been many ‘Article 2’ inquests and civil challenges over the years after patients have lost their lives and families have had theirs destroyed by the impact.
It’s increasingly hard to take seriously the views of professionals about mental health laws when they admit, they have even less training on this stuff than some frontline police officers do; and who themselves are rarely ‘qualified’ in any meaningful, professional way. It’s particularly hard when one sees evidence presented in courts that attempts to blame officers for outcomes caused by statutory legal failures by healthcare organisations and professionals (see details of the David Stacey inquest, Leicester – the Safeguarding Adults review will apparently be published very soon). One AMHP told me a couple of years ago, her own daughter had graduated as a registered mental health nurse with just one hour of mental health law training in her entire undergraduate degree – it’s like forgetting to train the police on how to arrest people or undertake stop & search correctly.
So, to those mental health professionals who might suggest that the law is optional or aspirational or just too damned difficult, I say this: I will die in ditch before I ever agree with you – and the suggestion that this is just some kind of ignorance on my part is downright insulting. It is nothing more and nothing less than an honest, professional attempt to apply the same basic professional standards to mental health that we try to apply to the other other contentious areas of our responsibilities where we are removing liberties and invading privacies. We are inspected, regulated and investigated on a legal basis and I’d add my own view that many of the most destructive scandals in policing relating to mental health incidents were in part due to legal failures or ignorance by the NHS and too much willingness by the police to defer our responsibilities to supposed expertise. Examples available elsewhere on this blog, or on request.
And the public tell us repeatedly that they want this – they dislike their legal rights being violated and treated as optional or secondary.
If you want to break the law and violate the human rights of vulnerable people, just please have the courtesy to exclude me from your professional conspiracy and to be openly accountable for your decisions. Be aware as you do this, that the police are obliged to consider allegations of assault and false imprisonment by patients, just as we should consider the complaints made by NHS staff against patients – we are NOT on anyone’s side, legally speaking. Don’t expect me to turn a blind eye when you do try to involve me: I am legally obliged not to wilfully misconduct myself. In fact, it is a criminal offence for me to wilfully misconduct myself … but there I go again, banging on about the importance of the law! What’s most galling about some of this is the implicit notion – increasingly being expressed out loud – that the police ‘just need to understand’ that they need to help break the law. It’s as if some people think I’m thick and unable to understand something their qualifications afford them insight into.
Every single police officer in this country swore an Oath of Office when they joined in which they promised to protect fundamental human rights and be faithful to the law, over all else – we are not perfect in this, far from it, and I’m not attempting to sound holier than thou. It remains a constant struggle to reach these standards and so should it – we often fail; but it would be misconduct territory for officers to openly incite others not to try. You are also obliged to do this, incidentally, by virtue of s6(1) of the Human Rights Act 1998. We’ve all got personal and professional opinions about stupid laws that we’d rather weren’t there: I’ve certainly got plenty. Debate about changing them, the difficulties of complying with them are all valid at the appropriate time and place and we’ve just had a long debate about the Mental Health Act itself. If anything, the Wessely Report is suggesting far tighter criteria and greater rights for patients which means this stuff isn’t going to go away any time soon.
And if you’re a police officer, know this: you can’t always trust that a mental health professional giving you legal advice is any better placed to do so than your sergeant – in fact, many sergeants would do better than some. However, we’ve even managed to get to a point where senior doctors are admitted as ‘experts’ on legal issues in Coroner’s courts to state out loud that officers made mistakes and got things wrong, legally speaking and contributed to a death, only for a barrister representing the Chief Constable to dismantle that opinion … with reference to the law, surprisingly enough. You know need to know your onions officer, as some of the help you will receive won’t always be as helpful as it looks and you need to be able to spot the difference before you’re blamed in a courtroom after someone dies.
Accept Nothing; Believe No-one; Check Everything; Document it All – Experts rarely stay in lane: refer back to the start. The partnership we have with the public is the most important of all.
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, 2019
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 – http://www.legislation.gov.uk