If one were to stay up late one night, perhaps with your favourite whisky, some Eric Clapton records and a flip chart, with the intention of designing some legislation calculated to cause the maximum amount of ambiguity, frustration and difficulty, you would do well to come up with anything better than s136 Mental Health Act 1983.
- Only the police can start it – what if A&E want it instigated and the police don’t see the need?
- Only the NHS can end it – what if the police believe the need for s136 has ended or at least their involvement in it?
- When should a patient be removed to A&E?
- No-one has defined where police responsibilities end – when is it acceptable to leave patients in NHS care?
- No-one has defined where NHS responsibilities start – what if everywhere is refusing to accommodate a patient, but the police have very real concerns about the safety of using the cells as a place of safety;
- Many things that must be done are not specified to one or other of the organisations. For example: repatriating people who are not formally admitted after s136 – nothing says it is a police OR an NHS responsibility, so what if we don’t agree?
- There are no legal or other guidelines about what precisely should happen where alcohol, drugs or aggression are involved – yes, agreements should be reached in local protocols, but what if agreement is not reached?
- The overall 72hr timeframe is the only legal timeframe specified, nothing else by law needs to happen within it. *
* Interestingly, the legal timeframe for the equivalent authority in Scotland is just 24hrs. In Northern Ireland it is 48hrs. (There was a suggestion in the draft Mental Health Bill 2004 that in England and Wales this should be reduced to 12hrs, but it was one point amidst many which saw the Bill thrown out.)
Add to this the potential for police discretion to be exercised in different ways about whether s136 should be invoked at all; discretion about whether to select s136 when other powers of detention may be available – a drunkenness offence, a criminal offence, a breach of the peace – and one can see why NHS staff may be frustrated by police decisions and police may be frustrated by NHS reactions. Compound that with the exercise of NHS discretion – how intoxicated is too intoxicated; how aggressive is too aggressive. “The bloke we brought in yesterday was accepted and he’d had more to drink than this”, etc..
Of course, the agencies also have their different aversions – the police want to minimise the potential for deaths in custody, 5% of which since 1998 have been s136 MHA and most have involved drugs, alcohol and / or aggression. The NHS wish to minimise the possibility that NHS staff may be assaulted and cannot undertake too meaningful an assessment until a level of sobriety has returned to intoxicated individuals. Quite rightly, they want to resist being used by their local police as a ‘drunk tank‘.
If the police detain a person who appears to be in their late teens, whilst moderately intoxicated and resistant who has injured themselves by self-harming and who it subsequently emerges has a learning disability, it will necessitate contact with the following agencies in this order:
- Accident & Emergency
- s136 Place of Safety provider (if different)
- Local authority (for the AMHP or the duty AMHP scheme)
- Learning disabilities provider (if different)
- Either LD inpatient unit or LD community care provider.
That is potentially as many as seven different organisations, five of them within ‘the NHS’ and each with their own operating cultures and expectations around the role they should play within the s136 pathway. Try just getting 7 managers of an appropriate level in a room for a meeting.
Should any one of those providers not engage, either on the day, or more strategically in terms of agreeing the local s136 protocol then it will fall to the police either to convey, accommodate to ensure security and temporary care. If they are doing these things, how do the police know they’ve done everything they could in the event of the preferred pathway not working or not being available at all? Well, in the final analysis, the police have every legal right – actually a legal duty – to do all lawful and reasonable things to protect the human rights of their detainee and the integrity of their own decision-making. Here is a four-step approach which does exactly that.