Section 136 Arrests Within A&E

The police are sometimes called to A&E and requested by medical or nursing staff to implement a police holding power under mental health legislation – either s136 MHA(EW), s297 MHA(S) and a130 MHO(NI).

To implement one of these powers and then remove a person from one health building to another is counter-intuitive to a lot of officers and where local PoS arrangements rely upon the use of police cells it can appear utterly perverse.  If someone has presented themselves to the NHS and then been either bounced between different parts of it, or indeed turned away completely and incarcerated in a police station for ‘care’, you’d struggle to explain that easily to a common sense expert, wouldn’t you?

  • Some of the questions that arise:
  • Is A&E a place of safety? – it certainly can be; so it depends.  See a previous blog post on this subject.
  • Is A&E a place to which the public have access? – yes, it is.  (If you want to read more detail on why, I have written about that seperately.)

The fact is, nothing in law prevents s136 / s297 / a130 being exercised in relation to someone who is currently standing in an A&E department, even if they’ve been triaged and are pending treatment.  Of course, whether it is exercised is quite another matter!

The police officers involved – NB, not the medical staff! – have to be individually convinced that the grounds for exercising the authority are met. Sometimes, convincing them may just be a matter of good communication as to what has gone on and sharing any relevant information.  Saying, “he’s mentally ill we want him arrested s136” is not enough!  << real example!

I previously posted a true story where A&E wanted someone arrested under s136 but the police resisted this, believing the legal justification for doing so was not there.  Where such differences of view remain, the only route through the woods is dialogue.  The police would ultimately have to accept medical decisions around healthcare, so must the NHS accept police decisions around arresting people.  Both have access to proper channels of communication, if they remain dissatisfied, but police holding powers should not be utilised to punish patients for getting frustrated with waiting or for the convenience of the professionals involved.  They should be used only to ensure access to assessment and / or care that would not otherwise be achieved without the imposition of that detention.

Arresting someone – yes, it is an arrest – is a serious business which can affect life opportunities.  Even MHA holdings powers can and sometimes will appear on enhanced CRB checks for employment. We should all understand how important employment opportunities are to people with mental health problems and therefore, we need to recognise that the legal coercion of an individual is a big step.

Of course, there are other examples in reverse: where a patient in A&E has become disturbed or aggressive to a degree that means they need to be controlled for the safety of others and officers have declined to arrest by saying, “He’s already in a place of safety” or “A&E is not a public place”.  Such things are either misunderstandings of law, or the presentation of false argument to justify inaction.

Someone may well be in a building which could be a place of safety but if there is no urgent need for physical healthcare treatment and it is ‘just’ a case of needing MH assessment which will problematic in A&E because of the person’s presentation and the environment, it may be necessary to arrest.  If the person should be in A&E because they have serious medical problems, but are also in need of urgent MH assessment and possibly admission, it may be necessary to arrest s136 and keep the person within A&E for that course of action to unfold and proper assessment to take place.

All cases on their merits, but I repeat:  you can arrest s136 / s297 / a130 in A&E but whether you should, will very much depend on the circumstances.  Let’s put the patient’s needs at the centre of the decision.  Now there’s a thought!

One thought on “Section 136 Arrests Within A&E

  1. 30 July 2012


    Dear Mental Healthcop,

    I find your illuminating posts so helpful. Thank you very much for all you do.

    May I ask a knotty question: what happens when a person is deemed to be mentally capacitous by a psychiatrist and the opinion is that there is no clear evidence of any mentl illness whatsoever and no psychoses and no formal thought disorder?

    For if a person is deemed such by the CHRTT psychiatrist, how then does the police get involved thereafter?

    I ask because I am very concerned about public safety and transparency, and where there is misfeasance in public office and tort because of stripping of Habeas Corpus and DOLS and Human Rights of a person who is in a hospital bed having had major surgery and catheterised [on account of the surgery] then has been deemed to be acting “inappropriately” and possibly in “civvy street” would be classed as a “public order offence”, surely there can be no prosecution at all? For post-operative cognitive dysfunction after major surgery for a fractured leg and urinary catheterisation are major risk factors for such confusional behaviour, and indeed it can remain for several months or even be permanent. This was the guidance of the Royal College of Anaesthetists and can be found online in their booklet 7.

    What worries me is that then people “forensically” investigate to find out whether the perspon who was now deemed not to be capacitous could in fact have been non-capacitous when signing the consent form for surgery.

    To me, this is simply ludicrous.

    After all, is it not a criminal act to operate on someone whom you believe not to have the capacity to make informed consent?

    This is the nightmare I am currently in.

    I would be so grateful for your help.

    With best wishes


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