Section 136 and the FME

The Force Medical Examiner, or Forensic Medical Examiner, is the doctor who comes into police custody suites to undertake various medical functions.  The terminology for these professionals has changed over the years and is now officially the “Approved Healthcare Professional” which is helpfully confusing when I want to discuss AHPs in the context of functions they must undertake with AMHPs (Approved Mental Health Professionals under the Mental Health Act)!

For that reason, I’m going to persist with the outdated term, “FME”!

When I joined the police, the FMEs were a load of local doctors, mostly GPs, who were on a rota.  My station and two others had four of them and they were in each subsequent 7 day period “first choice” then “fourth choice” then “third choice” etc..  Many of them earned more from being an FME than they did from being a GP because they worked about 24/7 for a week, then had two weeks ‘off’ (because 3rd and 4th were rarely called) and then a week of being called ‘occasionally’.

Presumably because of cost and some debate about skills, training and clinical governance, somewhere around 2002, my force contracted a private provider to undertake all medical functions in the custody office and elsewhere, introducing nurses for certain functions rather than doctors.

The FME has an interesting role with regards to s136 and it varies across the country.  Legally, once someone has been detained by the police and removed to any place of safety, they must be seen by a “Registered Medical Practitioner” and an AMHP.  The RMP needs to be a doctor and there is no specific requirement that they be “s12 approved“.  Section 12 approval relates to doctors who are declared to have “special experience in the diagnosis or treatment of mental disorder”.  Many functions for doctors under the Mental Health Act 1983 require a “s12 doctor” but s136 MHA is not one of them.  In fact, many FMEs in fact ARE “section 12 approved”.

The Mental Health Act Code of Practice states that the RMP should ideally be s12 approved, but stops short of mandating it.

Force Medical Examiners being used outside police custody

Sometimes, local s136 policies specify that even where a person is removed to an NHS place of safety, the FME should still be involved in the s136 assessment.  There are a few problems with this which then emerge in reality.

Firstly, some force contracts with their medical provider, do not cover it and therefore some FMEs are told by their contracted employer not to undertake such functions.  Assessment under s136 MHA is a statutory responsibility for the NHS and therefore, the NHS should ensure that the commissioning of PoS services ensures the availability of whatever kind of DR they believe is the most appropriate.  This has caused tensions and problems, because it sometimes only became known that FMEs were involved, once contracted medical companies were overseeing FME schemes.

It turns out, RMPs can claim a statutory fee for s136 and MHA assessments, so plenty of FMEs were happy to do it.  But then some NHS areas started trying to suggest that as the doctor “worked for the police”, the police should pay that bill.  Err, no.

I have recently been looking for a reference which I’m sure I once read in the Code of Practice to the MHA, which indicated that PCTs should not rely for the delivery of services upon third-party organisations that are not directly commissioned.  Contracted police FME services are one such example, where reliance by the NHS on a service they did not commission and do not control, can lead to operational problems.  PCTs must ensure they have answer to “how s136 gets done.”

I suspect some of this may change in the future when the NHS takes overall commissioning responsibility for healthcare in police custody, at the point of writing this, it remains true.

Force Medical Examiners in police custody

FMEs have been used in various ways for s136 assessments in the cells.  In some forces, the local authority WANT the FME to get involved in a ‘screening assessment’ before the AMHP is notified, ostensibly so that the FME gets rid of any s136 detention which is obviously inappropriate.  In other areas, the local authority specific DO NOT want the FME to make any decisions whatsoever around s136 MHA, because they want to bring their own RMP, usually off the “section 12 approved” rota.

Each of these scenarios poses a different, interesting question: if the FME is screening people out, on what basis are they doing so?  I ask because I know that some doctors think the question to ask of s136 patients is whether they are ‘sectionable’ under the Mental Health Act.  In fact, the purpose of s136 assessment is not (just) to establish whether the person is ‘sectionable’, but “whether they are mentally disorder for the purposes of the Mental Health Act” and to identify subsequently necessary care pathways.  These could be inpatient OR outpatient pathways.

The second quandary is interesting: if the FME gets to police custody with a view to doing “FME things” and staying ‘out’ of the s136 process – police want FMEs to confirm fitness to be detained in the police cells, levels of safety observations which will be undertaken whilst the person is there, helping with decisions around whether they need removal to A&E for any purpose perhaps after a physical examination – what then happens if the FME who is an RMP thinks the person is “not mentally disordered within the meaning of the act”?  The Codes of Practice to the MHA and to the Police and Criminal Evidence Act 1984 both state that if an RMP believes the person is “not mentally disordered” etc., then the person should be released and s136 comes to an end.  To detain beyond that point would be illegal; a false imprisonment by the police.

However, in more than one joint operating protocol that I have read, the policy states that no-one detained under s136 MHA in a place of safety will be released until they have been seen by both a doctor AND an AMHP.  Which could amount to a false imprisonment, in some cases.

I also know of local protocols where the local authority want the FME totally removed for the s136 process, even where they are in police cells.  This usually stems from a history of incidents where the local authority found that FME decisions were way off mark, leading to the unnecessary release of people who were quite unwell.  But of course, the custody sergeant is obliged to call an FME for reasons above, that are nothing to do with s136.  Safer Detention guidelines and PACE require it.

I understand the importance of the AMHP role in s136 assessments.  Not only do AMHPs make arrangements for full MHA assessment if the “s136 assessment” indicates compulsory admission to hospital may be needed.  Also, even where admission may not be necessary but where the person detained is suffering from mental disorder within the meaning of the Act, the AMHPs role is to ensure the relevant community follow-up.  This may take one of many forms, including referral to the patient’s own GP, or community based mental health services.

So a tension in police custody can emerge, depending on how local s136 protocols are drafted:  the custody officer is responsible for managing this tension and my advice is this:

  • Notify the FME for assessment as soon as practicable after ‘detention authorised’.
  • Notify the AMHP as soon as practicable after ‘detention authorised’ of the s136 detention in your cells and give the FMEs estimate time of arrival.  The AMHP can then choose whether or not to be present at the same time, as preferred by the CoP MHA.
  • If the FME arrives first and assesses the person to any degree, the question to ask is, “Is this person mentally disordered within the meaning of the MHA?”
  • If yes – continue to detain for the AMHP.
  • If no – section s136 has been brought to an end by virtue of this assessment.  Unless you think for good reason that the Doctor is way-off in their conclusion, in which case contact your on-call senior FME (most forces have this) and notify the AMHP.

Footnote: “Not mentally disordered” after removal to A&E

The references highlighted above about RMPs indicating that someone is not mentally disordered has one further consequence that is worthy of mention in this context, although it is not about FMEs.  Where a person has been removed to A&E – presumably because of additional RED FLAG injury / illness which makes this necessary – it could be that an A&E doctor states that a person is “not mentally disordered …” etc..  Where this occurs, it again raises the question of whether s136 should be brought to an end, irrespective of whether the AMHP has arrived or been notified of the detention and undertake an interview.

After much discussion on this point it comes back to the Code of Practice to the MHA (para 10.33): “If the doctor sees the person first and concludes that they have a mental disorder and that, while compulsory admission to hospital is not necessary, they may still need treatment or care (whether in or out of hospital), the person should still be seen by an AMHP.”

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3 thoughts on “Section 136 and the FME

  1. here’s a scenario.. an intoxicated stressed single dad winds up near a bridge, correctly removed via sect 136, though to the cells.. a mate looks after the kids overnight.. the next morning 0700hrs single dad is sober, embarrassed, keen to get to work and very much aware that his mate also has to get to work. Seen by a Section 12(2) approved FME, clearly not mentally ill at all – but has to remain in the cells for some hours till transported to the local mental hospital ‘136 suite’ because the local policy states that all FMEs should only establish if Fit to Detain. KIds wind up with social services, single dad devastated.. Looks like a damaging false imprisonment to me.

    1. I would agree that after the FME said not mentally ill at all, the detention became illegal. The Code of Practice to the MHA specifically covers this and states that if ANY Registered Medical Practitioner declares ‘not mentally disordered within the meaning of the Act’ then they should be released.

  2. As an FME myself, I am acutely aware of the unacceptable delay in getting the Section 136 sorted. In Lincolnshire the FME is usually within an hour’s call of the custody suite. The frequent problem is in finding an AMHP and then, if appropriate, the section 12 approved, 2nd doctor if one has to proceed to a Section 2 mental health assessment. This is where a detainee can find him/herself waiting so long.

    The problem is worse than suggested. In the event that the DP is found to be ill and in need of Psychiatric in-patient care, there is often a further delay in securing a non-existent bed.

    The difficulty in securing psychiatric/social care whether in or out of hospital leaves me upset. NHS Commissioning, the huge variety of different NHS/PCT services and the difficulty in finding appropriate help for a DP in need provides a service that is inadequate, slow and uncaring in too many cases. The introduction of the internal market and financial incentives distorts the service to the detriment of the safety of the DP and the custody suite. In my county, the Community Mental Health Team ceases to exist at night. They have a “contract” with the local county hospital’s A & E department and are financially penalised if patients are kept waiting too long. In consequence, problems in the community / custody have to wait till the following morning.

    Despite the continued and increasing difficulties faced by the NHS it seems illogical to give them yet more control over affairs in the custody suite.

    The Prison Medical services used to be the responsibility of the Home Office; now transferred to the NHS. Just saw a prisoner who was beaten-up in the local prison. He entered on 85 mls of Methadone and 11 years later, he was still on the same dose. As a result of the beating he pee’d blood and went into urinary retention. That was the Saturday. He wasn’t treated until the Tuesday by which time to possibility of obtaining DNA evidence had long since passed.

    Forensic Medicine in both Police Custody and in HM Prisons needs to be bought back to the control of the Home Office and fully privatised with set response times. AMHP’s need to be part of the Forensic Team not part of the PCT otherwise the log jam will continue with the risks of death and injury in custody increased.

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