Whose Responsibility Is That?

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.

Here’s why:

  • 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:

  • Police
  • Ambulance
  • 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.

Advertisements

10 thoughts on “Whose Responsibility Is That?

  1. My head hurts. I had a student sectioned recently. Don’t ask me for details! No criminal justice implications but it still took forever and I had reached the head-banging stage after the first hour of the meeting. Seemed simple to me and my colleagues but no……

    I think it took more than one person at the booze to come up with the current *sniggers* system. Probably a squadron of civil servants with a leavening of solicitors and psychologists and a focus group.

  2. The biggest issue in my area is waiting with people for an assessment then waiting for a bed to be found. All our 136 patients are taken to A&E where they have an empty room for us. It’s not lockable and there’s no radio signal. 13hr waits are not unusual and all that time we have to wait with them, usually with 2 officers.
    We asked for a lock but was told by the hospital that it was against their Human Rights! Most of the time they’re not violent but want to leave and staff won’t stop them. Imagine if a doctor detained somebody for stealing medical equipmemt and was told to wait with them for 13 hrs while we carried out our investigation?

  3. Thank you again for the clarity – big pharma probably also involved somewhere, both recreationals for the decision-makers[sic] and the sedatives,ant-psychtics and tranquillisers needed by all concerned

  4. Boss,
    I read your blog with interest. Would you object to me plagiarising the s.136 advice for my team? I would of course credit you with writing it. I was completely unaware of the Codes of Practice the NHS have. I await your response.
    Thanks.

    1. Don’t mind you using it at all, but obviously I’m blogging in a personal capacity and you should see what your force policy says. That said, in just my personal view, if your force policy or your local operating protocol says anything else, then it’s probably breaching something which is worth complying with; either for medical or legal reasons.

      This approach is what the NPIA based their national guidance upon. Arising from this guidance, all forces had generic templates given as examples or by which to review their own approach. In just my force area, this suggested approach was welcomed in one area, tolerated in others and outright rejected in another. But I submit it’s legal and ethical regardless of how it’s reacted to. Navigating through sensibilities can be difficult, though, which is why I advise you to see what your force MH lead says, or at least your local commander.

      (The NPIA Guidance is hyperlinked on the resources page, above).

    2. Don’t mind you using it at all, but obviously I’m blogging in a personal capacity and you should see what your force policy says. That said, in just my personal view, if your force policy or your local operating protocol says anything else, then it’s probably breaching something which is worth complying with; either for medical or legal reasons.

      This approach is what the NPIA based their national guidance upon. Arising from this guidance, all forces had generic templates given as examples or by which to review their own approach. In just my force area, this suggested approach was welcomed in one area, tolerated in others and outright rejected in another. But I submit it’s legal and ethical regardless of how it’s reacted to. Navigating through sensibilities can be difficult, though, which is why I advise you to see what your force MH lead says, or at least your local commander.

      (The NPIA Guidance is hyperlinked on the resources page, above).

  5. I am quite astonished that your area does not have a joint agency S136 policy which would/should cover most ot the issues raised here. Practitioners in London are given to thinking that practice in the regions is backward and this blog seems to confirm it.

    1. I’ve read a good few s136 protocols from London and they are by no means perfect and my colleagues in the Met police have told me many frustrated stories about very similar matters. Some areas in ‘the regions’ – wherever they are! – are very good, others less so. As with everything.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s