- This guide is an attempt to “operationalise” complex issues and you should refer to your area’s policy and your supervisors for specific local requirements.
- INITIAL ACTION
- Call an ambulance to EVERY arrest made
- Remove anyone displaying a RED FLAG to the nearest A&E department
- Remove everyone else to the NHS place of safety in your area.
- Use a police station only as a last resort, if you cannot improvise any other alternative solution and only where the statutory criteria are satisfied.
- Alternative solutions could include a domestic address – their’s, a relative’s or friend’s – if it were assessed as a safe and appropriate setting.
- Use of private residences requires the consent of the person detained AND anyone else who lives at the specific address.
- SUBSEQUENT ACTION
- Call the Approved Mental Health Professional yourself and take their name;
- Call the Registered Medical Practitioner if the person you detained did end up in the cell block.
- Constantly re-assess for RED FLAGS whilst the person remains detained under s136 and in contact with the police.
- Remove to A&E if any RED FLAG emerges at any stage.
- Once the patient is received, consider whether You Should Stay or You Should Go
- LEGAL REMINDERS
- Where the police remove someone to after arrest is, ultimately, a matter for the police.
- Local protocols are important, but only binding if they actually deliver legal outcomes.
- Paragraph 16.38 MHA CoP states, “A police station should not be assumed to be the automatic second choice if the first choice is not available. Other options should also be considered.”
- Paragraph 16.58 MHA CoP states, “a person should never be moved from one place of safety to another unless it has been confirmed that the new place of safety is willing and able to accept them.”
- NHS preferences not to deliver upon their own guidelines and Codes of Practice ARE NOT sufficient grounds to ignore legal frameworks.
- Ensuring that you have attempted to secure the right kind of assessment and care; or the nearest available thing, is important to demonstrating a discharged duty of care.
- Doing what we all know to be the wrong thing, will not be defendable with “But the NHS would not / could not …”
- MORE MATERIALS ON ALL ASPECTS OF S136 AND PLACES OF SAFETY
- More detailed guidance on how to act before / during / after s136 detention.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2019
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – http://www.legislation.gov.uk
Mental Health Cop 
can you use 136 in A&E? [or should it be a section 4]
You can if you need to … depends on circs, really.
ED staff can use security to detain simply for declining liaison assessment with no visible evidence of risk to staff or self. They can also make medical treatment of self-harm contingent on ‘agreeing’ to such an assessment.
So when security physically stop us from leaving the dept for declining liaison whether that’s before or after treatment is that assault? Can I call the police?
If ED are to stop you from exercising a free choice to leave, they have to have a lawful ground for doing so. They cannot use the Mental Health Act for it; so they’d need another legal authority. If they cannot provide one, they become potentially liable for false imprisonment if they stop you from leaving without resorting to force and also for assault if they have used force.
You’re quite within your rights to phone the police and once the officers have confirmed whether or not you were stopped, by force or otherwise, the officers are entitled to ask A&E to justify it prior to considering how they proceed.
You have also got the right to speak to a solicitor and take civil action.
Thank you this is helpful.
So if for example they claimed they stopped me from leaving because they thought I was a danger to myself without any assessment or evidence of that, just basing it on my having attended for a self-injury repair, then as you say that’s not a legal detainment. I guess they could use a section 4 on grounds of ‘danger to self’? But then how would they do that without first having an assessment of risk?
The trickier aspect is being denied medical treatment until I ‘agree’ to an assessment – bear in mind these typically last all of 5 minutes with 3-4 questions. It’s no joke waiting for hours for this to happen when I need to see a surgeon.
You know once the Triage nurse said to me, ‘you have to do a liaison assessment, it’s our policy all patients attending with self-harm have to, so you either do that or talk to the police’.
You know what, I’d prefer to talk to the police, I think I could more easily explain to an officer why I don’t want that assessment, how it doesn’t help, and why it’s better for me to get the treatment I do need and then get home and to bed.
Problem is that would feel like such a waste of police time, you have better things to be doing, however I do wonder what would happen.
My fear here is that treatment full stop can be declined if you piss them off, so most of us just keep our heads down, speak when we’re spoken to and go through these endless charades. That’s why we tend not to complain because it could go against us.
Last time I was in A&E the security officer really frightened me, she was verbally unpleasant and physically pulled me away from the door, I truly believed that if I had resisted she would have pinned me to the floor or hurt me. There were two police officers in the dept at the time for someone else, I really wanted to approach them and ask for help.
I hope you’ll understand that I’m not able to commit to a definitive ‘yes’ or ‘no’ on anyone’s case from a blog, but for example, if A&E did really and genuinely fear that you were going to leave and present a danger to yourself, for example, through further self-harm, then they could either call an AMHP and with a DR go for s4; or consider the use of the Mental Capacity Act, to detain / restrain in your best interests.
If either of these things were done, you should have been formally told about it and if they have not been done, you options of police / solicitor to challenge them are open to you. Don’t forget, after the event, you can also write to the hospital and ask in their complaint’s procedure for an explanation from their point of view, outlining that unless you get a satisfactory answer you retain your police / solicitor options.
If I were you, I would also consider writing / asking about the process of being denied treatment for injuries if / until assessment by liaison. I understand why they have such policies, it seems appropriate. But at the end of the day, imposing conditions like that on your willingness to clear or stitch or dress physical injuries seems odd, like telling a cancer patient that unless they agree to speak to an health advisor on smoking that they can’t have treatment for lung cancer.
Absolutely, I appreciate in this capacity it’s not possible to give definitive answers from a blog but what you say is still really helpful to me in pin pointing what my rights are.
I’ve just received an account from someone who was taken back to the ED by the police from home because they left before a liaison assessment they didn’t want. It was the police who informed them they were under the MHA, the ED never informed them. How the hell can someone be on a s4 without knowing it, assessment by telepathy?
Lol yes, your cancer patient example is spot on, I’ve referred to the broken leg one – if you broke your leg your would expect an xray, pain relief, plaster cast/whatever treatment/appt for fracture clinic – you wouldn’t expect to sit there with a broken leg with demands to fill in a health & safety questionnaire wanting details of how you fell over and how you will ensure you will never fall over again.
The process of being denied treatment for injuries is specific to injuries, this doesn’t occur with overdosage where blood count/IV/antidote would be administered immediately. The severity of external injuries also doesn’t appear to impact on this practise, whether it’s sutures through to plastics under a GA.
A number of ED’s do this, inner cities especially, so because this is more than one dept which is why I’m collating evidence from service users and writing to the CQC to address this so it might have wider impact. ED’s need to have specific guidance and instructions on both the issue of proper legal detainment within the ED and treatment in relation to that.
Having worked in an Emergency Department for 20 years I can verify that patients brought in by Police under S136 can be very difficult to manage. Arranging adequate supervision (both nursing and security) is demanding. There must always be someone monitoring the patient and if the patient decides to leave one must think carefully about what to do. The Police are likely to be absent and general nurses have no power to detain the pt. Security guards are poorly trained and can be overly aggressive.
If someone was brought in to an A&E department under s136 and the A&E department agreed to receive that person for assessment / care, then should the police leave, there is still an ability to keep that person detained – under s136(2). Whether this is done by nurses, porters or security would be for the hospital to decide. Having said that, it has always been my view that unless A&E was set up specifically for the purpose of receiving most 136 detainees – set up with a distinct area in which such patients are held pending assessment – the police should remain there is all instances where the patient is conscious as potentially able to take the decision to leave.