Recently, I had emails via the very excellent Inspector Jan PENNY in Thames Valley Police, drawing me into a debate in her area about the use of section 136 in an Accident & Emergency department. The definition of s136 makes it plain that you can only exercise the power in “a place to which the public have access” and TVP officers were consumed with the detail of what this meant.
The post I wrote last year on Section 136 Arrests Within A&E addressed the question of whether A&E is “a place to which the public have access” and I definitively stated that it was, without detailed explanation about the kind of arguments that break out. In light of Thames Valley’s difficulties, I want to put that detail out there, with a nugget of information I only discovered tonight.
ACCESS TO A&E
In many A&E departments these days, they have entirely public waiting areas into which absolutely anyone could walk should they wish to do so but many have introduced controlled access to the treatment areas. You often have to be let through a door which has a security swipe system controlled by nursing, medical and security staff. You absolutely cannot walk into those areas just because you want to; it is completely conditional upon staff permission to do so on their terms, at times determined by them.
Recently, police blogger Inspector Gadget wrote about this access system representing a problem even for police access, such is the level of control exercised over them. To what extent is the area of A&E beyond these doors “a place to which the public have access.” Well, it turns out there’s an easy answer to this, after some have spent hours torturing themselves with legal definitions that were never relevant to begin with.
Legal debate about this often turns quickly to the legal definition of a public place. The problem is that there are different definitions depending upon which Act of Parliament you are reading. The Road Traffic Act is different to the Public Order Act, etc., and in any event, s136 MHA does not refer to “a public place”, it refers to “a place to which the public has access.” We must assume that these are different things, otherwise Parliament would have used the same phrase to ensure the same meaning.
The Thames Valley officers had removed a person from the access-controlled treatment area under s136 and the detention of that person in the cell block was refused by the custody officer as potentially illegal. This decision rested upon an interpretation of “a place to which the public have access” that focussed upon an interpretation which implies totally free, entirely unrestricted access, or access granted because of the satisfaction of an entry criteria which, in theory, anyone could meet, such as payment.
Actually, section 9 of the Public Order Act 1936 would imply that A&E treatment areas are fair game for s136: a “public place includes any highway and any other premises or place to which, at the material time, the public have or are permitted to have access, whether on payment or otherwise.” (The bold is my emphasis.)
Whichever side of the fence you sat on until now, the answer is actually specifically clear. I have tonight been re-reading the Sessey judgement and found something I had failed to spot when reading it previously: paragraph 39 of the judgement is referring to the difficulties faced in achieving an urgent admission under the MHA with regard to people who may be inclined to leave the hospital. It states:
“If a patient evidences an intention to leave the hospital before the s.4 application is completed, hospital staff may contact the police who have the power to detain the patient under s.136. We do not accept that there should be any problem with the use of s.136 in these circumstances.
The Accident & Emergency Department of a hospital is a place to which the public have access and accordingly it is a public place for the purposes of s.136.”
So there it is – it is beyond doubt, following a High Court ruling. Of course, now that you know you could detain someone under s136, you’ll need to decide whether you should detain them … and what you then actually do with the person is quite another debate again because nothing in this post or that court ruling will help you with the wisdom that “A&E is not a place of safety.”
Well, actually, it can be … and it often is … and it all depends. See another of my posts for that debate but remember that ANYWHERE can be a “Place of Safety” – including my Mum’s house – dependent upon the circumstances and the rationale behind the choice. So to the argument put forward on Twitter that a local arrangement between the police and mental health services; A&E and the local authority that A&E is not a Place of Safety, I say that a rose by any other name, is still a rose.
The Mental Health Cop blog
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– was referenced in the UK Parliamentary debate on Policing & Mental Health
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