I missed something last year, probably because I’d changed roles and I’m not focussing on this stuff as before. In 2019, the Care Quality Commission reported some findings after a review of the implementation of the Code of Practice to the Mental Health Act 1983. Those who have followed this blog since the start will know I’ve done a number of articles highlighting parts of the Code which are especially obscure, helpful to know or widely misunderstood. My particular favourite has always been paragraph 28.14 (and helpfully, this paragraph reference number is correct for both the 2015 English Code of Practice and the 2016 Welsh Code of Practice but this post relates only to the CQCs review of the English Code): 28.14 reminds us that where patients are Absent Without Leave under the Act, it is ordinarily the responsibility of hospitals to return them to the ward. Support from the police should only occur ‘where necessary’ (and I’ve covered how we should think about that, elsewhere).
It is also worth remembering what the status of a Code of Practice actually is, in law: it is not, strictly speaking, a binding instruction like the Mental Health Act itself, but the House of Lords (now the Supreme Court) once ruled in the “Munjaz” case that a Code of Practice is a document which should be followed unless there is “a cogent reason for departure”. So what would the cogent reason be, if we were asking the police to return an AWOL patient against the general thrust of paragraph 28.14?!
Well, there could be several –
It’s worth bearing in mind the inquest after the death of Sasha Forster, the question arose about who carries responsibility for returning AWOL patients (and in the context of that inquest, it was amidst contradictory suggestions as to who should lead). The mental health trust gave evidence they simply did not have the resources to do this, the implication being that the police would have to do it regardless of the Code, because of their resource situation. The Coroner issued a Preventing Future Deaths report which referenced the hospital’s responsibilities to ensure resources can fulfil such obligations but there was ongoing contradiction in responses to the PFD notice as to whether the hospital does, in fact, bear a legal responsibilty for this notwithstanding there was acceptance the police do not have a legal responsibility to return patients unless other factors apply (things like an immediate threat to life).
So who knows?! … either way:
This CQC publication covers many issues about the Code much more generally but I offer the above example to show how messy it all gets and how much debate continues to rage about the Code and its contents. The review places welcome emphasis on another favourite topic of mine – section 140 of the Mental Health Act itself. I did wonder why we see that emphasis on the actual legislation within a report about the Code – Acts and Codes are not the same thing. The report explains: the 2015 edition of the Code of Practice was the first to outline statutory guidance on this piece of legislation – paragraph 14.80 highlights CCGs, providers and others should agree arrangements to ensure patients can be admitted urgently to hospitals, where necessary. Section 140 MHA 1983 was first introduced as s132 of the 1959 Mental Health Act so it has been the law of England and Wales for over sixty years. The 2015 Code and the 2019 CQC report show there is still work to be done to ensure its implications are given effect.
You may remember cases like MS v UK (2012) which centred on inability to identify a suitable hospital with an available bed for a vulnerable man’s admission from police custody? There have been countless more less high-profile examples which did not reach a legal arena and the fact there are many more cases is referenced in the 2018 Independent Review of the Mental Health Act by Regius Professor Sir Simon Wessely, example. If you’re involved in this area of planning, I’d encourage you to read the CQCs report: it’s only 19-pages long and there is a decent summary at the start, if you just want it all boiled down to a few pages.
My own view was that it’s nice to see in writing what is often discussed when the MHA is being considered or applied in practice. But the conclusions are the key issue, as always –
“We found the revised guidance has not had an impact on making sure that there are locally agreed joint protocols in place to support the implementation of section 140 … commissioners are not doing enough to make sure they are meeting their statutory responsibilities and applying the supporting guidance in the Code. If the legal obligation under section 140 is not discharged as intended, approved mental health professionals are often left in a difficult situation when they have assessed someone as requiring detention under the MHA but are unable to find a bed. In some cases, a suitable bed can only be located out of area, miles away from a person’s home and family. Additionally, people who are arrested under criminal law are staying in police cells for too long, often unlawfully, after it has been established that they need to be admitted to hospital following an assessment under the MHA.”
In addition and most curiously, the Department of Health published non-statutory guidance on section 140 MHA in November 2019 – NB: I’m aware this link takes you to a useless page. For reasons I don’t know, the document was pulled down from the internet within a day or so of its publication. The link states it will be made available “as soon as possible” but over a year later, this has not been rectified, as far as I can tell. Thankfully, I know that some managed to download and save a copy before it disappeared so I can now only guess why it may have been published and removed given its contents don’t seem particularly contentious. I’m at a loss as to why the implications of this provision seem some widely resisted and we have again recently seen on social media.
The Code of Practice to the Mental Health Act is an important legal document, as are all other Codes – it is statutory guidance for which all relevant professionals should have regard and with which relevant agencies should comply unless there is a cogent reason for departure, according to the highest court in the land. The 2015 edition of the English Code is, by definition, out of date because the Mental Health Act itself was amended in 2017 and if you read, for example, chapter 16 of the 2015 Code (relating to police powers), it still states that place of safety detention can last 72hrs. It’s been reduced to 24hrs for over three years now and it also says nothing at all about the severe legal restrictions now placed on the use of police custody as a Place of Safety under the Act. Those restrictions were first introduced in 2017 so an update is needed at some point.
The point of this post? – just to continue to highlight the need to know, understand and give effect to the Code of Practice and its contents and to keep chipping away about section 140. By extension, it’s to argue that professionals need to be aware that discussion about how responsibilities are discharged and by whom are not just discussions based on people’s opinions, preferences or frustrations. If a hospital asks the police to recover an AWOL patient without any obvious explanation as to why the trust are not doing this themselves in a more therapeutically fitting, least-restrictive way, an officer querying this is an officer attempting to understand whether a ‘cogent reasons’ and seeking to ensure the matter is handled in the least-restrictive way (one of the over-arching principles of the Code and of mental health law more generally).
Policing is restrictive by definition, the attendance of uniformed police officers at incidents is an inherent “or else” to anyone involved, even where officers are acting calmly, with humanity and empathy in response to extremely sensitive incidents and vulnerable people. I think we still have a lot of work to do, understanding how feelings of criminalisation and stigmatisation play out when we over-police and it is for this reason I’d argue the Code needs to be more widely understood and given effect in the real world, along with the Act itself, however imperfect it may be.
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 OBE, 2020
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