Historical Legacy

In a recent multi-agency event about the difficulties in our interface between mental health and criminal justice a classic scenario was hypothesised in order to raise questions for discussion about who bore responsibility for someone in a particular circumstance.  How could agencies work together quite creatively to support each other and how could someone who may be at risk be safeguarded?  I want to use this example to show the impact our legislation has upon our modern professional practices and our inter-agency working.  It is the historical legacy bequeathed to us by previous generations who reformed the system of mental health care, without reforming the legislation that underpins it.

Bob is a hypothetical man who has recently lost his job.  What begins as a personal journey of social depression and anxiety becomes a situation of concern as he starts drinking to excess.  This causes difficulties for him in his personal relationships and as things become financially acute with on-going unemployment, his drinking worsens and there is no obvious solution to these issues.  His marriage eventually breaks down.  Feeling that everything has collapsed beneath him, Bob begins drinking even more and his disinclined to seek any support from his GP or elsewhere.

Eventually, there is an incident which leads to concerned neighbours calling the police. 

Upon the arrival of officers, Bob is intoxicated, there are indications that may have made preparations to take various forms of medication but no indication that he has yet done so.  It is obvious from the condition of his home, he is failing to look after himself – there is little if any food, the house is in filthy disarray and he doesn’t have electricity because he can’t afford to top up his payment card.  The police have called the ambulance service who have ruled out any serious medical problems but paramedics are also unable to persuade him to attend any NHS service for assessment and support.  They’ve suggested A&E more or less immediately or whether he could see his GP for an urgent appointment tomorrow.  Given everything, they also feel he may need assessment under the Mental Health Act.  A phone call to duty mental health services leads to a referral for MHAA being accepted, but the team will be several hours before they can undertake it.  Those present have tried to contact family or friends, most notably Bob’s brother, and no-one is able to come to the address to be with him for a few hours or until the next day when assessment might occur.

The delay is for a couple of reasons: firstly, the team are committed with other emergency MHA assessments; and secondly, time needs to be allowed for intoxication to subside to make any assessment meaningful.  The question then arose about how to manage the potential risks and safeguarding issues in the meantime, given that Bob is not consenting to any form of intervention and will not voluntarily attend A&E or allow a response from his out-of-hours GP?


This vignette is not an unsurprising one to choose: I have used similar ones on this blog to highlight the impotence of police officers to resolve some kind of safeguarding situations where there is no criminal offence being committed and no breach of the peace being occasioned.  The kernel of the ethical and legal dilemma is to create that situation where everyone knows that something needs to happen to safeguard the person, but where there is no obvious legal route to doing so for the people present at the incident.  We should remember this is a particularly British problem: in most other jurisdictions, police forces can act in these situations.

Here’s the answer to this situation >> an Approved Mental Health Professional goes to a magistrate, out of hours if needs be, and swears out a warrant under s135(1) and this is executed at the house in order to remove Bob to a place of safety for up to 72hrs.  This means he is safeguarded whilst the effects of the alcohol wear off and pending a full MHA assessment once fit to be interviewed.  There would be genuine difficulties to any other approach.  The police cannot act unilaterally; the Mental Capacity Act would almost certainly not apply and no other health or social care professional has a power to act to safeguard him without his active consent and cooperation.

Sections 135 and 136 of the 1983 Mental Health Act were lifted, almost unchanged, from the 1959 Mental Health Act – legislators even left the section numbers the same, I like to think because someone took a view that they didn’t want to unnecessarily confuse the police!  Either way, it remains true that the laws police officers are working with as we approach 2014 are the very same laws that were written in the late 1950s.  In the sixty years or so since passed, developments in the model of care employed has led to an increase in the number of patients receiving treatment in the community.

It is not surprising that the number of police related interventions under the Mental Health Act has increased significantly in that time.  I wish I had figures from the 1960s about the police use of section 136 MHA 1959, but I don’t – in some areas we struggle to get figures for 2012!  There are various reasons to think that the use of section 136 MHA has risen considerably over the last twenty years as we’ve seen the number of inpatient psychiatric beds reduce from 55,000 to 17,000.  I have heard AMHPs say similar things: those who have been in practice for several decades talk about Mental Health Act assessments being far, far more frequently required as the average duration of stay in hospital reduces significantly.

I can imagine that sixty years ago, the number of occasions where a Mental Welfare Officer – as AMHPs were then called – would have needed a warrant from a Magistrate’s Court would have been very few and far between.  I can also imagine that the scrutiny applied to any misuse of section 136 was much less and I know some professionals in policing, health and social care still regard the illegal use of section 136 as a necessary expedient.  Don’t forget, it took until 1997 before there was an incident where the misuse of this power was legally challenged in the case Seal v Chief Constable of South Wales Police and after various appeals through the British and European Courts.  That case was only finalised in 2010.


But how practical is it, when the police are faced with a “Bob”-like situation that an AMHP is despatched to a Magistrate for a warrant?  Even if it occurred in a fraction of necessary cases, it would still be massively time-consuming and I fully doubt whether many, if any, local authorities have anything like enough AMHPs to make this realistic.  One ambulance service I know have 1,400 “Bobs” per month and accepting that they cover a region which will include many police forces, mental health trusts, etc., this is still a truly enormous figure.

When I suggested during this event that the solution here was a section 135(1) warrant, there was immediate reluctance although there was an acknowledgement that Bob probably needs to be removed to a place of safety to keep him safe until he can be assessed.  Well, the route to a place of safety under current law is a warrant!  The reluctance here arises from the bureaucracy involved in doing this properly and the inability to manage the implications on professional time, not from any particular disagreement that the outcome it would afford is the wrong one.  And all of this is the consequence of our current law, as it stands; because if Bob had been encountered in the street outside his house, officers could have used section 136 MHA and no-one would disagree with that.

So let’s remember: we’re policing a twenty-first century mental health system oriented to community care, but we’re doing it with mid-twentieth century legislation oriented to institutionalised care.  Until Britain looks to modernise (at least) the police parts of its legal framework we are where we are and the judge in the Sessey case reminded us that in the Mental Health Act “Parliament has expressly provided for the situation where the application is one of urgent necessity.”  Any observation that this lacks a practical appreciation of how difficult it would be in the case of someone like Bob to ring the duty AMHP and see the implications of the Sessey judgement as a reaction, is probably more a comment about whether the local authority is providing sufficient AMHPs to match predictable levels of demand.


In any event, my role at the afore-mentioned event was to speak specifically about a view from the frontline of policing.  So all of the above many be of interest to some, but finding oneself in the position of being the police officer or paramedic in the case of someone like Bob, the main lesson in this post is that we should not be dissuaded in asking for AMHP support in cases like this where it is needed.  That the AMHP may not share a view that a warrant is the way to proceed, either because they have a realistic alternative or because demands upon them prevent them from attending a Magistrate for warrant is not something that should concern frontline staff.  Recognising the situation for what it is, in the context of that Sessey judgement, and seeking the right support will be an important part of any audit trail that has to be offered up in the eventuality of an inquiry.

If an AMHP feels that it would have been appropriate to use section 136 on Bob had he been encountered in public, then it is fairly easy to argue that section 135(1) should be considered because he has been found in private.  The bureaucracy involved should not be the primary issue: the need to safeguard Bob, is the main concern.  So let’s push for what we know is right, until such time as we discover whether reform of the law will occur.  We only need to look to our nearest neighbours, the Republic of Ireland, to see how easy it could all be.  And then I wouldn’t have to keep banging out blogs hoping to help frontline staff to protect themselves from blame when the broader system within which they are managing a large volume of deflected demand, fails to support them as they seek to do the right thing.

IMG_0053IMG_0052Winner of the President’s Medal from
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.


12 thoughts on “Historical Legacy

  1. Hi – As usual an excellent discussion of a key issue in MH care.

    Unusually a small error crept into this article: Mental Health Worker??? sixty years ago???

    Before 1983, the AMHP role was called an MWO – Mental Welfare Officer – it’s in the 1959 MH Act for those keen on detail. Before 1959 I can just remember meeting the odd [and they really were!] DAO – Duly Authorised Officer – I think it must have been under the 1890 Lunacy Act? – Yes!! I am now well retired!! Here’s a lovely quote form the Medical Officer of Health’s 1948 report to West Ham Borough Council [thanks to the Wellcome Library]:

    A senior duly authorised officer – three male and one female duly authorised
    officers: the latter was Supervisor of mental defectives until the 5th July when she was
    designated a duly authorised officer to act, If required, in an emergency. This lady left the
    Council’s service in October, 1948. Clerical assistance Is provided as and when required from
    Health Department staff. The duly authorised officers, who are experienced in mental welfare,
    carry out various duties under the Mental Deficiency, Lunacy and Mental Treatment Acts.
    A twenty-four-hour rota system is operated by the three male duly authorised officers,
    calls for their services after normal office hours being made through the Council’s Ambulance

    He also reported:
    Mental illness of defectiveness.The visitation of patients after discharge from mental
    hospitals was continued by the Psychiatric Social Worker at Goodmayes Mental Hospital. Unfortunately
    the Council’s efforts to obtain the services of a Psychiatric Social Worker were unsuccessful
    owing to the great shortage of suitably qualified persons.

    A very different world 60+ years ago!!

  2. On the need for positive action to safeguard the ‘Bob’s out there – I agree that the MCA is not appropriate [some are even arguing it is no longer fit for purpose in many areas – to which I would agree] in it’s present form – you cannot legally convey using it. However – the key issue for police, public, ambulance staff, etc finding a ‘Bob’ – whether in public place or a private one, is not being able to assess what issues lie ‘behind’ his intoxicated state. One thing is usually clear – his intoxication is of a degree to incapacitate him, albeit temporarily, in terms of the MCA. Many Bobs who need safeguarding do not go on to need a psychiatric assessment; many do. We need legislation that does not stigmatise under the MHA – i.e. a revised MCA that allows forceful removal to a place of safety of people too intoxicated to take care of themselves safely and let them dry out safely – not a police station and not A&E – wasn’t somewhere running a ‘tank’ for this purpose? If they then appear to need further assessment under MHA then that can be actioned. I don’t agree the answer will necessarily be an AMHP getting a s135(1) – after all, it may not be clear the person needs a MENTAL HEALTH assessment. The MHAA is the second step, not the first.

  3. As it stands, I am not sure that it is appropriate to use either Sec136 or Sec 135 in this case. This may be becuse there is not enough information in the vignette. There is a suggestion & persumtion of depression & risk, complicated by alcohol & family breakdown & that psychaitric treatment might be required & I accept that it might. But equally it might not – as you know “the drugs don’t (always) work”.

    On the information given I am not sure we should be looking at the MHA.Depriving someone of their liberty, even for 72hours & perhaps having to use force, remains a big step in my book. As an AMHP I am not sure that I would be swearing on oath that a warrant is required just yet. Bob may very well need an assessment & support on a number of levels. Maybe starting with his GP & something like a Home Treatment Team, or an Acohol Service making attempts to enage with him over a period of time. But even if these services are there he can say no thank muchly – he has the right to decline. His capacity to do so may need to be assessed, by someone, when Bob is not intoxicated. MCA tells us that we should persume that he has it. Bob needs to stop drinking me thinks & take it from there – easy to say I know, but it is the first step – there are 12 of them.

    If the solution to Bob’s difficulties is 136 or indeed 135 we better bulid bigger hospitals & Places of Safety for the Bobs of this world.

    1. It was a vignette set up by an AMHP! I’m latching (and I think he was) onto the fact that whatever discussion has occured between the ambulance service and the AMHP service, there is an accepted basis for a MHA assessment.

      It’s fine to say he needs to stop drinking – the whole point of the scenario is that he hasn’t or that he won’t and that there are indications he may well take an overdose if left unsafeguarded and there is no-one else to do it. And, if may be so bold, this is the reason 999 services find the emergency mental health care in this country quite a frustrating beast to navigate.

      There time to engage may or may not be there: indications are this man will overdose if left alone and I’m well aware of his right to decline. As I say, the scenario was one set up by an AMHP and had that been presented to me with Bob in a street, there are few police officers who wouldn’t use 136 to safeguard him.

      I appreciate you may not want to swear on oath for a warrant – that’s the WHOLE point of this blog. The AMHP who set this thing up didn’t want to either. And yet if you don’t. The police and ambulance service have to walk and leave it to him. I doubt very much when he’s found dead from overdose in the morning that the decision-making not to safeguard him by doing what was possible would stand up the scrutiny. That’s why AMHPs in this situation – where there is an agreed and accepted basis that MHA assessment is needed – should prepare for phone calls like this. Their reaction is for them to justify.

      1. I knew it was a trap 😉

        Seriously though there is not information to suggest that Bob is going to OD. There is a risk, but as you know risk assessment is not an exact science. He might he might not – previous history & context are everything. But if we accept that Bob does require a MHA Assessment then he should have it. As it stands he would need to be seen by some medic first, either his GP or a HTT medic. Currently only his NR can request that the LA consider undertaking a MHA Assessment. Concerned paridemdics or indeed police officers have to jump through certain hoops & policies to get an AMHP on the spot or POS or A&E etc. Never mind two medics & a mental health trust willing or able to produce a POS or bed. Remember the target time response to POS requests for MHA Assessments is 4hrs. Hardley time for Bob to sober up never mind be adequately assessed.

        In my experince you are fairly bold & in the context of this article you have a very valid point. Blue light 999 services find MH services a frustrating beast because MH services are not set up as such. They are historically under resoursed & that situation ain’t improving anytime soon.For the most part MH services are set up to respond during office hours mostly. EDT & HTTs are not adequately resourced to respond 24/7. I agree that they should be – but they aren’t. Indeed I find it frustrating & often find myself working well past my contracted hours with no ackowledgement of that. At least you get overtime, I get to claim TOIL if I am lucky & then have to explain to my kids & better half that its all part of my job. The job I choose to do & still like, mostly.

        The use of the term safeguard & safeguarding are trigger terms. As you no doubt know safeguarding is now a formal process within which the LA has a lead responsibility. But safeguarding requires a vulnerable adult i.e someone who may stand in need of Community Care services & needs an Assessment. There also needs to be a Perpetrator. Bob might very well be a vulnerable adult & might need services but there is no perpetrator. So strictly speaking this is not safeguarding, but I suspect that both the Ambulance & Police would make referrals as such. Remember I don’t make the rules & I would change many of them & do bend them.

        In terms of swearing or indeed affirming, surely you are not suggesting that an AMHP bend the law to do the right thing? I know that you have fairly strong views about the police a Sec 136. To be fair after making reasonable enquires in these circunstanecs I might & have done. But you have to get to me first. Do the right thing, but do it for the right reason, not just because a square peg don’t fit in a round hole.I am aware of several examples of police & AMHPs misusing their powers to ensure the right outcomes.I am also aware of powers being exercised for the wrong reasons – but again I werent jonny on the spot, so who knows.

        It occurs to me that when I was a young social worker & the big Psych hospital still existed- some of the Bobs of the world ended up in them for respite & TLC. But then came along the drive for Care in the Community & the 1990 Community Care Act & the sell off of the hospital grounds.Not that these large insitutions were all good. But through rose tinted glasses they always had room at the inn.

        BTW I was a cub, scout & venture scout = always be prepared 🙂

        We do all need more places of safety. Yday a colleague had a 135 (1) warrant & everything & everybody ready to go but nowhere to go to! I see this more than I would like.

        take care

    2. Section 135 is not hte solution to Bob’s problems: it is, as you know, a mechanism to ensure his problems are properly assessed in a situation where he is safeguarded. As you rightly assert, what happens after that when he may or may not be exercising sober, capacitous judgement, is quite another matter.

      And we’ve needed more Place of Safety provision for well over fifty years. The lack of it in some areas is a national scandal.

  4. There can be a worrying tendency in the NHS, backed up by the MCA to see self destruction as a potentially rational choice, therefore no need to intervene if the person doesn’t ‘lack capacity’ or isn’t ‘mentaly ill’. It’s terrifying because it’s one choice you can’t ever change your mind about…..Accessing mental health services is incredibly difficult…….

  5. sometimes think it’s forgotten that people when people are intoxicated whether through alcohol or drugs an assessment can still take place based on other information if the risks are considered too high, to wait. Admittedly when i’ve done this generally its been on patients already known to services. Not sure if i would apply for a warrant in this case, it’s a possibility but think bigger issue for us would be when the request came in and how quickly we could get a doctor to accompany us getting an immediate response from GP Section 12 doc or ON Call consultant seems to be getting harder by the day, and thats in a small geographically speaking authority and in office hours

    1. Granted – section 4 was also mentioned but that was immediately met with the objection you anticipate of it “not being possible” to assess someone who is intoxicated. As you rightly say, it’s not necessarily as black and white as that. I fully see the legal difficulties with the idea of section 135(1), but that is precisely because of my main point — that the law hasn’t kept pace with the way in which we’ve changed our approach to mental healthcare. But the solution to the immediate safeguarding is either section 4 or section 135(1), so it may come down to which process is objected to less by that AMHP.

      I was asked earlier today what I would change in the MHA and my answer would have rendered this situation simple. Get rid of the public place requirement in s136(1). Like all the other developed countries in the world.

  6. Then the ongoing problem – let’s assume he is detained and is assessed – but is assessed as not needing detaining to hospital He sys he has no immediate plans for suicide, ,told he’s basically fine go home and may
    be see his GP., He really intends to make an appointment, next available is maybe in a couple of weeks, and all the stockpiled medication is still there ……..

  7. an interesting debale, there are no easy solutions to this. What a shame we cannot do something to stop the Bobs of this world getting into this situation in the first place…..

  8. Example – article in Community Care. http://www.communitycare.co.uk/2013/12/12/cuts-local-mental-health-teams-huge-impact-patients-story/#.UrILovRdV8U

    And this is within a 5 star CQC rated north London Trust with an LA AMHP service that claim to have a joint protocol with the Trust that means there is never a bed issue!! Really? Not quite what’s discussed at the weekly Bed Mgt meeting. Certainly not service users and carers experience. And certainly not the police and LAS’s experience who end up spending 3-4 hrs with someone extremely distressed and disturbed and have nowhere to take them..

    And the AMHP service still does not attend even when the individual has made a almost fatal suicide attempt after police have left on a previous attendance. Their suggestion each time they cant or wont come out is to try and get removal under the MCA rather than go down the warrant route. Not really sure that this policy approach to circumvate the MHA will stand up in court much of the time.and of course it leaves officers with a responsibility that they are very rarely qualified for. Most of us would like to see the AMHP’s actually stand up to the Trust and demand that if no NHS bed then get one in the private sector. Paying out each time would focus them and maybe increase beds again. Because without a bed being available the AMHP wont assess!

    Everything within the article is accurate . Some of it you couldn’t make up.

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