How to ‘do’ s136 Mental Health Act (MHA) properly: <<< this also applies to s297 MHA(S) and a130 MHO(NI).
1. Call an ambulance to EVERY arrest; without fail.
2. Remove anyone suffering from a potential medical emergency or physical injury to A&E
3. Remove other detainees to the psychiatric place of safety in your area – it is not the role of police officers to pre-judge issues around admission to a place of safety where drugs, alcohol or resistant behaviour is involved. That is for the NHS to decide.
4. Only when all three have been done and any other (improvised) alternatives have been rejected*, consider removing to a police station. It is a PoS of last resort, after all.
Objections to this approach.
1. “Calling an ambulance takes too long and isn’t necessary”. Tell that to the man in my force area who was an undiagnosed diabetic who appeared confused as his blood sugar levels went heavily awry. He appeared potentially mentally ill to the police so they arrested him s136. The fact an ambulance was called meant that when he collapsed it was into the arms of a paramedic who had just done a routine blood sugar test who could then begin treatment as he was rushed to A&E. His consultant said, if he’d been removed in a police vehicle to the cells, he probably would have died by the time it all unfolded and an ambulance had arrived. And if that’s not enough, it’s also legally required by para 10.17 to the Code of Practice to the MHA.
2. “A&E is not a place of safety!” Oh yes, it is; because ANYWHERE can be a place of safety for the purposes of the Mental Health Act, as long as it agrees to receive the patient. Take a potentially mentally ill person to A&E because they’ve self-harmed, overdosed or because they’ve got a head injury and A&E for that person, for that time and for those reasons is a place of safety under the MHA. It doesn’t mean they’re agreeing to open the floodgates to everyone, but criteria should be agreed for when A&E is necesary and it doesn’t mean the person remains in A&E throughout; once the emergency medical matters have been managed, the person can be transferred to a more appropriate Place of Safety. Your 72hrs starts, however, when your detainee is accepted into A&E for treatment / assessment.
3. “People under the influence of drugs or alcohol or those who are violent should be in the cells.” Once we know it’s medically safe, then perhaps that may be necessary. If that just takes a paramedic’s say so and the PoS is already full, then fine. But it may need a trip to A&E to rule out the possibility of alcohol masking something else. If you put anyone into a police station against their will – s136 or otherwise – then PACE kicks in and it states Code C to PACE that the custody sergeant must ensure appropriate clinical attention for detainees. This involves either, calling an Approved Healthcare Professional (FME) to custody or calling an ambulance / transferring to hospital. It is not automatically correct to hold someone in a cell for several hours pending an FME – remember; the FME is there to provide advice to the custody officer, not to provide healthcare for the detainee. That remains a legal responsibility for the NHS.
* Don’t forget – the MHA allows ‘improvised’ solutions to PoS problems; the Code of Practice to the MHA implores consideration of this in para 10.22 – “the police station should not be considered the automatic second choice if the first choice PoS is not immediately available. Other options should be considered.” So if you’ve detained a 15yr old girl and A&E is not appropriate, the PoS can’t accept, why not remove her to her own home and risk assess the appropriateness of it in terms of safety, the environment, cooperation of family / parents, etc.. Would her parents be willing to allow the police to keep her there for an AMHP / DR to attend an assess? If not or if it’s not an appropriate, safe environment, off to the cells we go knowing we’ve tried but I’m damn sure I’d want my son at home with me and a cop rather than in a police cell block.
We know this is right because it is consistent with all the guidance and laws pertaining to s136. Alter this approach and you’re breaching something.
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Since this blog began, the law of England and Wales, including the Codes of Practice to the Mental Health Act 1983 have been updated, several times. Always check the date of publication, displayed below; and cross-reference to current legislation and guidance when using this material as a reference guide.