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Implementing “Right Care Right Person” — easier said than done for police forces?

With Blue Monday drawing attention to mental health this week, James Muller examines some of the issues faced by police forces in implementing RCRP

What is Right Care Right Person?

Right Care Right Person (“RCRP”) is a strategy for dealing with requests and calls for police action or assistance concerning welfare, mental health and associated areas. It was originally developed by Humberside Police, and it is now part of the National Police Chief Council’s and College of Policing’s national strategies. In February 2023 the Home Secretary wrote to Chief Constables and Police and Crime Commissioners requesting that they work in partnership with other public bodies to implement RCRP in their areas.

The National Partnership Agreement for RCRP was signed in July 2023 by the Government, National Police Chiefs Council, Association of Police and Crime Commissioners, College of Policing, and NHS England, and sets out the threshold for the police response and the importance of collaboration with partner agencies to provide the most appropriate response.

The RCRP approach aims to ensure that persons who need help get the best possible care from the most appropriate service by reducing the reliance on police as the first responders to reports of welfare, hospital walkouts, and other mental health situations where there is not a risk to life or risk of serious harm, and where core policing operational duties do not apply.

RCRP covers calls and requests for police assistance relating to, and police procedures concerning, the following areas:

  • welfare checks;
  • persons absent without leave (AWOL) from a mental health establishment (where they are detained there under the Mental Health Act 1983);
  • walkouts by voluntary patients from healthcare facilities (including abandoning medical care or treatment);
  • detention under s136 Mental Health Act 1983, and the transfer or responsibility to NHS trusts and AMHPs;
  • requests to support ambulance attendance;
  • transportation for physical and mental health patients.

In short, the general approach of RCRP is that police will only deploy or act when:

  • a core policing duty is engaged — i.e. to prevent and detect crime, protect life and property or maintain the King’s peace;
  • article 2 European Convention of Human Rights is potentially engaged because there is a real and immediate risk to life (including from self-harm);
  • article 3 European Convention of Human Rights is potentially engaged because there is a real and immediate risk of serious harm;
  • the police have assumed responsibility with respect to an individual such that they owe a common law duty of care; or
  • the police have created the risk and therefore owe a common law duty of care.

Key issue: partnerships with other public bodies

One of the keys to the success of RCRP is that there is effective partnership working between the police and other public bodies (fire and rescue services, ambulance services, NHS trusts and local authorities), and that those public bodies have a good understanding of RCRP. It also requires that those other public bodies put in place procedures so that they can act in situations, within the scope of their responsibility, where historically they would have defaulted to seeking police assistance.

The importance of working in partnership is recognised in the National Partnership Agreement, which says:

  • “To successfully adopt the approach, strong partnerships need to be formed between police forces, health bodies and local authorities to identify how to implement this approach in a way that best meets the needs of the local population and the shared aims of the agencies involved”
  • “While police forces will ultimately determine the timeframe for implementing the RCRP approach locally, it should be established following engagement with health, social care and other relevant partners.”

However, in reality, many police forces are finding it difficult to form partnerships with other public bodies in relation to RCRP, and very few full partnership agreements at a local level are actually in place.

It is notable that the Local Government Association is not party to the National Partnership Agreement, and the LGA has publicly expressed numerous concerns regarding the practical implications of RCRP. It appears that there is likely to be some considerable disagreement between police forces and local authorities on RCRP.

Although NHS England is party to the National Partnership Agreement, the implementation of RCRP locally remains a potential point of contention, and we understand that formal agreements with local NHS trusts and ambulance services are still far from the norm.

Key issue: article 2 “Real and immediate risk to life” threshold in practice

Article 2 of the European Convention of Human Rights is potentially engaged when the police know, or ought to know, of a real and immediate risk to life, including from self-harm, to an actual or potential victim (including risks to a specific group). A key issue arises as to what the “real and immediate risk” threshold looks like in practice, and how it will be interpreted by officers and staff.

A “real and immediate” threat is one which is “substantial or significant” and “present and continuing”. A risk that is conditional on some other event or which may arise at some point in the future is not real and immediate.

In Dove v HM Ass Coroner for Teesside and Hartlepool [2023] EWCA Civ 289 the state being on notice of suicide risk at some point previously did not equate to a real and immediate risk of death at the current time. Even where somebody is vulnerable and has long-term mental health difficulties including self-harm, that does not mean article 2 is engaged where “… there was no indication in any of her dealings with the Department in the weeks and days prior to her death that her mental state was acutely deteriorating or that she had become exceptionally vulnerable in the days before her death.”

Whilst numerous legal cases (including those before the European Court of Human Rights) analyse in detail what amounts a “real and immediate” risk to life, police officers and control room staff are required to make such assessments in real time, making the assessment far more difficult. Additionally, because all of the relevant case law says that article 2 cases are fact specific, it will be very difficult for police forces to give meaningful and comprehensive examples, when training individuals on applying the “real and immediate risk” test.

The overall result will likely be that the approach will be inconsistent between different officers and staff. This inconsistency could also cause issues with the public and other public bodies’ understanding of RCRP.

Key issue: article 2 medical emergencies

Another key issue for consideration is how police forces address instances where there is a real and immediate risk to life, but that that risk derives predominantly from a “medical emergency”.

If there is a real an immediate risk to life, article 2 may be engaged, and, if it is, the state has a duty to take reasonable measures within the scope of their powers to avoid that risk. What is reasonably required in any given instance will depend on the circumstances. The duty is owed by the state as a whole rather than by individual state bodies – if reasonable measures are not taken, the state is in breach, regardless of which state body should have taken those steps.

There are many instances that on the face of it might be “medical emergencies”, but where attendance of the police could potentially help to avoid the risk to life. Potential examples include where police could assist in forcing entry to enable an ambulance to attend, or where somebody who has taken an overdose might be non-compliant. Questions arise as to whether in such circumstances Police are required to respond under article 2 – and RCRP policies and procedures will need to have considered this.

Key issue: reasonable checks of police systems

The consideration of “real and immediate risk” under article 2 takes into account not just what officers/staff knew, but what also what they ought to know. This means that officers/staff should take reasonable steps to obtain information (e.g., from other public authorities) or check information to which access is available(e.g., on PNC). The natural question arising from officers/staff, is what level of checks are reasonable.

Unfortunately, there is no legal definition of what would be reasonable checks. What is reasonable is likely to be highly dependent upon the facts and circumstances in any given instance, and might well vary between the types of calls received. 

There is some very limited guidance within the Humberside RCRP approach made available by the College of Policing:

  • “A full check of police information systems should also always be conducted where it seems likely that the police will attend the incident.”
  • “Consideration was also given as to whether to conduct police system checks on calls where police did not have an obvious duty to respond. This took into account existing force operating models, Independent Office for Police Conduct (IOPC) investigations and law. The decision was made not to conduct intelligence checks where the decision was clearly a 'no', but to do so when the decision was 'yes' or 'maybe'.”

The level of checks expected will need to be considered and determined by police forces, with guidance and training provided where needed, so as to enable effective implementation of RCRP. 

Key issue: s136 Mental Health Act

One of the most contentious and complex areas of RCRP is around the transfer of responsibility for individuals detained under s136 Mental Health Act 1983 from police to NHS trusts or AMHPs. Recognising the complexity, many police forces have opted to prioritise the implementation of other areas of RCRP first, with implementation on this area being at a later date.

The particular difficulty arises for police because, unlike in many other areas of RCRP where the question is around whether police should or should not deploy/act, with respect to s136 MHA the question is at what point officers who have acted can cease to act. If responsibility has not yet passed to another organisation, it is not open to the police to simply cease acting.

Many forces are facing significant challenges around the amount of time that they are having to remain at hospitals/EDs etc in relation to such matters, often averaging over a dozen hours.

This area is one in which partnership agreements with NHS trusts and local authorities will be particularly important – although, as previously mentioned, this itself has presented significant difficulties.

Any such agreement would likely need to incorporate specific procedures and sufficient documentation to ensure a proper audit trail.

In the absence of such agreements, police forces will want to take specific legal advice on how to address this complex issue unilaterally.

Coroners’ Reports to Prevent Future Deaths concerning RCRP

Since the first police forces started to implement RCRP, we are aware of two instances in which coroners have issued Prevention of Future Deaths reports which, in part, express concerns regarding the implementation of RCRP.

The PFD report arising from the death of Heather Findlay raised three particular areas of concern regarding RDRP:

  • That police might not attend when a detained MHA patient is AWOL “in what the clinician perceived to be an emergency situation”.
  • That partnership working might allow police and trusts to both consider a matter the other’s responsibility, resulting in neither acting.
  • Confusion about the process for the police being given the trust’s own risk grading of an AWOL MHA so as to inform the police’s assessment of their risk (even though it would not be determinative of that assessment).

The force concerned provided a comprehensive response to that PFD addressing those issues and helping to explain RCRP.

The PFD report arising from the death of Elizabeth Watson raised generalised concerns about the response time from emergency services in relation to vulnerable persons, and the effect that RCRP might have on this.

The deadline for responses has now passed, but the responses are yet to be published.

Weightmans can provide legal advice and support on Right Care Right Person policies and procedures and in the implementation of these by Police Forces. We can also provide advice with respect to partnership agreements with other public bodies concerning RCRP.

For advice, contact our regulatory law solicitors.

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