The Independent reporting today NHS mental health services are in a “desperate” situation, largely over access to beds when admission to hospital under the MHA is needed.
This post need only be short – my reaction to reading this, frankly, was to wonder what has changed?
I suspect it’s the frequency with which the situations may be occurring or perhaps the frequency of us hearing about it, because there’s nothing fundamentally new about any of this. This blog began about a decade ago and one of the earliest posts was about a (then) relatively recent European Court ruling in the MS v UK case – that was an Article 3 ECHR finding whereby a man suffered inhumane and degrading treatment in a police cell, after difficulty in ensuring his timely admission to hospital under the MHA. (Apologies for again stressing this: his legal action was against the NHS for failing to get him out of custody and admitted in a timely way for treatment, not against the police for anything the officers did or didn’t do.). Potentially relevant to my point about the Independent’s story about desperation is the fact that MS case occurred in 2004 and took eight years to become a judgement.
So almost two decades ago we knew of and heard of cases where patients were waiting for days in days in unlawful situations for hospital admission. You may remember a BBC news article from earlier this year which referenced a Cabinet Office report evidencing several thousand protracted and unlawful detentions in police custody, pending MHA hospital admission? This stuff is even more complex than the Independent’s coverage.
One thing struck me again about the coverage of the situations being highlighted – the legal dimension. The article mentions the case of Hannah Belford who experienced waits in an Emergency Department, ahead of hospital admission. The article states “After being sectioned under the Mental Health Act in December 2018, Ms Belfron … was left waiting three days as there were no beds within my area.” I cant make this point enough: people waiting for beds after being assessed under the MHA are not “sectioned”, they are just assessed as requiring admission admidst a bed hunt that can often go national and last many hours or days. On one level, this may not be too much of an issue if the person is happy enough to wait for that support, but there are always ethical and legal problems where that is not the case.
A person only becomes detainable, ie “sectioned” at the point where an Approved Mental HEalth Professional makes a written application to a specific hopsital for that person’s admission. Until that point, the person’s situation is legally governed by whatever legal context was in play. In many situations in an Emergency Department, this could be a situation with no legal framework: someone attended ED and was assessed, they waited (too long) for a bed. But in other situations, it could be governed by s136 of the MHA, which means detention by the police for assessment. AMHP / NHS services have 24hrs to assess the person and make any necessary arrangements for that person’s care – so what happens if the 24hrs runs out and there’s still no beds?
You’ll find answers to that question elsewhere on this blog and no doubt, the general desperation highlighted by this article involves those kinds of situation and many others where legal imperatives kick in. I get the resource reality, I really do – because I see it most days at work. But what I don’t see is much discussion about the legal reality of this: the MS v UK case shows there are fundamental human rights engaged in the matter of timely admission to hospital. Other types of situation also give rise to Article 2 (right to life) and Article 5 (right to liberty) obligations – if the inability to admit someone in a timely way leads to suicide or homicide (examples available) or if the expiration of holding powers like s136 MHA then lead to protracted detentions without an obvious legal basis (examples available), then those other ECHR obligations start to become relevant.
Section 6 of the Human Rights Act 1998 states, “It is unlawful for a public authority to act in a way which is incompatible with a Convention right.” So who’s policing that?
Winner of the President’s Medal, the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All views expressed are my own – they do not represent the views of any organisation.(c) Michael Brown, 2021
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 – www.legislation.gov.uk