Another blog that is long overdue, but it has come up recently in queries and other conversations, so it seems right to put this out now. As so many people haven’t heard of or actually read section 140 of the Mental Health Act, I’m going to write it out in full —
“It shall be the duty of every Clinical Commissioning Group [England] and of every Local Health Board [Wales] to give notice to every local social services authority for an area wholly or partly comprised within the area of the CCG or LHB specifying the hospital or hospitals administered by or otherwise available to the CCG or LBH in which arrangements are from time to time in force. —
(a) for the reception of patients in cases of special urgency;
(b) for the provision of accommodation or facilities designed so as to be specially suitable for patients who have not attained the age of 18 years.”
So here’s the breakdown — every CCG and LHB has a legal duty to specify hospitals to the AMHPs in their area(s) those hospitals which can receive patients in cases of special urgency and which has facilities suitable for under 18s.
In a strictly personal capacity, I recently submitted in excess of thirty Freedom of Information requests to CCGs asking for their “section 140 lists.” Many of them replied in ways that didn’t actually answer the question – several acknowledged that they had not specified any hospitals under this provision for either purpose and others either listed one or two locations in their area or just listed every hospital in their area. No-one who did specify a particular hospital, specified whether it was for purpose a) or purpose b).
One CCG were honest enough to just admit that they didn’t understand the question! Something of a mixed bag of responses, to say the least when in reality it should be obvious there are only two possible replies:
1. We have not specified any hospital – presumably followed by some undertaking to correct this omission given it is enacted as a duty.
2. Here is is a list of the hospitals we have specified – presumably followed by a list which breaks down whether the hospital was specified for purpose a) or purpose b), above.
Richard JONES points out in his Mental Health Act manual (2013) that “this section does not oblige the specified hospitals to admit patients” and I have heard this said of all applications for admission. Of course in the wording of this section it does not say “and it will be the duty of such hospitals as are nominated under this section to admit patients when urgent applications are received” or similar words. There are many things not said in the Mental Health Act that are still a factual matter of law so I’m far from convinced that this ends the matter as finally as is sometimes suggested. If you can tolerate a small diversion –
The Police and Criminal Evidence Act 1984 governs the arrest and detention of people in police custody, which obviously includes arrested whilst actively resisting. To cater for scenarios in which people may be coerced because of resistance, it provides (in s117 PACE) that “where any provision of this Act confers a power on a constable … the officer may use reasonable force, if necessary, in the exercise of the power.” So this covers powers of arrest, detention and search, etc.. The Mental Health Act 1983 contains no such wording at all, despite the fact that it is also concerned with detention and search as well as with more intimate and sensitive issues like enforced medication of patients. There is no MHA equivalent of s117 PACE.
Does this mean that professionals engaged in realising the provisions of the Act cannot use reasonable force? Of course not – it is clearly inferred without being explicit that force may be used and other guidance indicates this to be true, like the MHA Code of Practice and the MHA Reference Guide. This is why when I read section 140 MHA and see the language of “duty” upon CCGs it is very obviously an obligation and what would be the point of creating such a legal duty in the first place if it does not end up in a situation where realisation of its intentions is delivered in the real world?
Interesting that section 140 MHA is not mentioned, even once, in the Mental Health Act Code of Practice. Why do we think this is?
BREACHING SECTION 140
So what effect does specification under s140 have for those hospitals, if it creates no duty upon them at all, despite the duty to the CCG that some be specified? What consequence does it have for CCGs if the commissioning of services and the specification of certain hospitals translates in reality to no different method of managing them and no requirement, for example, to reserve certain beds and / or contingency plans for those circumstances where s140 was envisaged to be of application?
I’ve always taken this section to directly infer, that those hospitals so specified have to have contingency plans in place for urgent admissions and of course, the providers of those hospitals should be discussing in contracting how that looks in reality and how they keep the necessary beds, infrastructure and staffing available to be able to realise an admission when indicated. It is the express will of Parliament that this is achieved, otherwise why did they bother legislating for this section at all?
In a public conference today, the Chief Executive of Birmingham and Solihull Mental Health Trust stated that as an indicator of pressure on the mental health system, he had checked bed occupancy in his trust and found that 475 out of 477 beds in his trust were occupied at midnight. He had a further 9 patients from Birmingham and Solihull in beds provided by other mental health trusts, out of area – some were a considerable distance away. Now I don’t know what Birmingham CCGs think of section 140 or how they see it administered, because they were amongst the CCGs that didn’t answer the question posed in my FoI requests.
But whichever way we look at this, section 140 could well be being breached. If the CCG has not specified any hospitals at all, then the legal “duty” referred to in s140 is not complied with – so who’s policing that? If they have specified hospitals but in reality they are not managed in a way that gives effect to the implications of s140, is that not then an issue for the CCGs to manage with their chosen providers; and an issue for the CQC or NHS England to take up with providers and commissioners respectively?
Why in some areas are there no longer “arrangements in place” for these “cases of special urgency” despite what Parliament clearly intended in s140? An indicator that the implications of s140 generate more compulsion that appears accepted elsewhere seems clear from s39 of the Mental Health Act, which is remarkably similar. Section 39 falls within Part III, which is concerned with patients involved in criminal proceedings. This provision in full –
“Where a court is minded to make a hospital order or interim hospital order in respect of any person it may request— the CCG or LHB for the area in which that person resides or last resided … to furnish the court with such information as that CCG or LHB have or can reasonably obtain with respect to the hospital or hospitals (if any) in their area or elsewhere at which arrangements could be made for the admission of that person in pursuance of the order, and that CCG or LHB shall comply with any such request.”
Again, the words “could be made” indicate that the details being furnished have to be capable of leading to the hospital making the order concerned. If the hospitals so mentioned are full, then they are not hospitals at which “arrangements could be made”. There is a level of obligation in this language, surely? The Care Quality Commission reference this provision as being in need of improvement on page of their 2012/13 monitoring report on the Mental Health Act.
NIGHTMARES IN CUSTODY
The discussion about all of this most usually occurs when we are talking about a person arrested for an offence, admission to hospital under the MHA is indicated and there are no obvious beds available. I have blogged (twice!) before about this and won’t repeat the point here. Suffice to say, that if one potential solution could be to consider a course of action that utilises plans that are in place “from time to time” in certain hospitals, it does rather call into question how implementation is being overseen and what challenges could be posed to CCGs and providers after difficulties in ensuring urgent admissions. Let us not forget, the mental health trust in the MS v UK case was found wanting for a human rights violation (article 3) arising from an inability to manage admissions. Arguably, between them and the CCG, they were in breach of section 140 MHA, also.
So hospitals presumably need to be managing beds in such a way as to mean they have contingency plans for high peaks of demand. Whether that means running at no more than 90% occupancy levels until “urgent admissions are indicated” or some other approach, is up to them to determine. We know from a range of media sources over the last six months or so how we’ve lost about 10% of inpatient psychiatric beds nationally and this is now giving rise to some patients, including some children, undertaking a journey of several hundred miles to be admitted. In some areas, they have lost half of their inpatient beds. (I still really enjoy the example of a MH trust who decommissioned beds to save £1.4m and subsequently had to spend £4.1m on out of area and private placements.)
But unless someone is going to “police” compliance with both section 140 and its implications, we are in a difficult position where it is quite possible the affected third parties, whether they be police services or Nearest Relatives could consider civil action against CCGs or providers where urgent admissions cannot be realised. They could, for example, challenged the lack of provision and or any lack of application by an AMHP for the want of effective s140 arrangements by judicial review. “Why are arrangements not in place for the reception of patients in cases of special urgency?”
This is what happened in Manchester in 2004 – the police service took the NHS to court, in order to safeguard the police officers involved from any suggestion of liability and arising from a failure to ensure admission to hospital after a man spent three days in custody. I would argue this situation happens several times a week in many police forces around the country as we continue to see difficulties with bed availability. I also know of an example of a mother threatening legal action after her son spent 36hrs in a place of safety where admission was indicated after a few hours, but where failures to identify a bed led to suggestions that the boy be sent home despite open admissions from the professionals involved that it was not really an appropriate course of action. It was the potential of legal action which ensured that efforts to improvise a bed were re-doubled and something found. Let’s just hope the solution wasn’t the closure of the Place of Safety in order to improvise an area to which someone could be admitted – because the CQC had something to say about that last week, too.
Difficult issues – but they won’t go away by us ignoring them and frontline professionals need to be especially wary of the liabilities that could befall them if they don’t robustly challenge the sorts of positions where the inability to admit someone gives rise to other problems, like protracted detention in custody beyond the legal limits allowed.
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the Royal College of Psychiatrists.
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All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2014.
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.
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7 thoughts on “Section 140 Mental Health Act”
I have seen one of the CCG responses to your request – via a certain forum. It came no where near answering the question posed. But it did state that via a MH Trust Bed Management Team “This arrangement improves on s140 MHA”. I REALLY DON’T THINK SO!
We (professionals/carers/families/service users) seem unable to hold organisations to account. Colleagues & I have considered formal complaints to the MH Trust & the CQC. Indeed we have met with CQC Inspectors & discussed a number of issues relating to the many difficulties around MH crisis/MHA Assessment work. We continue to raise issues via the appropriate channels – but it can feel like banging head & brick wall.
You will like this – becuse this week my focus has been on Sec135(1) Warrants & discussing/informing the police, NHS & ambo service & colleagues what the COP & MHA actually say. Not some version of it, driven by operational demands & lack of beds. Your colleagues have not been overly impressed with some of the detail & implication of the lack of a POS.
Thanks Michael for that. We are looking here at supporting an individual to be able to access safe crisis care following agreed safeguarding failures by the MH Trust. However authorities – and now the Trust, LA, CQC and CCG all involved – do not have a clue where their responsibilities start and end. In the meantime a severely disturbed and distressed person deteriorates while they bat her between themselves – more concerned about potential legal action than doing the right thing.
As an example of how to fail an extremely vulnerable person and their carers it is up there. Trust admits cannot met her needs due to their failures but CCG have never apparently thought of what happens when the commissioned services fail to deliver. This extends to all those cases you quite rightly refer to in blogs and that everyone knows knows about. The CCG dont know what to do and in the meantime while they think and have cross agency strategy meetings the person concerned is actively suicidal with nowhere to go.
The LA in the meantime seem paralysed by this and on one hand state that her MH needs are too much for them to manage (sic) but dont actually do a community care assessment as then they will be formally liable. At the same time the LA AMHP’s assess her but then have nowhere to place as Trust can’t meet the needs. And back to square one. Kafka-esque or what? And then she’s told she’s paranoid.
In legal terms yes a case in every respect from every direction. Problem is that the vulnerable individual now sees this only in terms of the coroners court and unfortunately when she states that her voice is louder in death than in life she will of course be right. Because that is the only way any of these authorities will pay attention albeit for a few minutes with a ‘lessons will be learnt’ mantra …until the next case.
So maybe we will also do an FOI request along the same lines to try and focus the CCG – or throw them in to more confusion. Are you able to share the content of your request?
If people can’t recognize when they are being abusive themselves – and I am referring to most police officers- does any of this stuff really matter? Most people rely on intuition and observations of behaviour; this has at least an equal bearing on outcomes as much as anything else, so all this legal stuff becomes pretty irrelevant.
Whatever people’s real intentions are and there true feelings are authors important than feigned legal personality wouldn’t you agree?
I am presently having a few moments hiding away in a room in my house trying to calm myself after my son with a range of special needs has been subject to severe taunting at school and has come home very distressed. At present I have calmed him but I suspect when he gets tired later things may escalate. In the past he has assaulted me when distressed but I have managed, twice with police help, to contain things. It is a sad fact that this his tall, obviously male, father appears more of a threat to him on these occasions than his shorter, apparently weak, mother. As he gets older things can get harder. These things so often seem to happen at night or at the weekend and yep, here we are approaching Friday evening.
I looked to Twitter for a bit of personal distraction and discovered your blog. If I have understood your commentary correctly your FOI request revealed no report of any hospital designated for purpose (b) of s140 in the whole of England/UK? Gosh, one just has to hope that the grounding, the mindfulness, the distraction, the medication etc etc works OK this weekend. Would so love to invite some of the heads of those CCGs over for tea! I don’t doubt they have some very significant issues to address and we are only one little family and I know others have it a lot lot worse than we do. Nevertheless it’s a scary old world when any safety net seems to have so many holes in it. There is some comfort at least in seeing people like you and Experto Crede highlighting the issue. Please don’t stop.
Sunseeker – At a long shot contact Andy McNicholl the journalist at Community Care – the social workers weekly rag.He did a fantastic piece on failing mental health services alongside work the BBC did. Link is on this blog site somewhere
I am not sure how old your son is but if I tell you there is interest on the complete failures of CAMHs amongst journalists at the moment then you may get a voice . Michael Buchannon at BBC News has covered MH very recently (covered Nick Clegg comments this week) and quoted the above Community Care article with regard to the patient experience of cuts (not sure spelt name right). Try him. Sometimes it helps to share. It is also the only way some authorities take note ( and I inc the above ones mentioned previously). MIND’s media team may also be interested as they are contacted for stories and will work with journalists.
May not be right for you as really the last resort but sometimes buys a bit more time in keeping you the carer sane when no one else is listening. The person I refer to is an adult and has reached the end of what she can endure and we around her are torn between trying to keep her alive at all costs and accepting that she ultimately has the right to autonomy with all that means.
I think it is worth fighting for your son and your own sanity but in a strategic measured way at a pace you and your husband can manage and one way is to keep informed as possible. This blog is a godsend for those of us who are not police officers as much as those who are because it says it as it is AND is very widely read. And sound legal advice that helps focus those strategies and helps us understand the mess the police are left with and why.
Maybe focus on your local CCG as they commission services and otherwise you spread yourself too thin. Find out named person responsible for doing this and present your situation to them. Doesnt have to be in a format they want – sometimes a recorded account is more effective as difficult to file away a voice.
With regard to the police – and depending on where you live – see if there is a mental health liaison officer at the local station, see if you can talk to them or file a crisis plan for your son just in the very off chance that any intervention is softened. Can work but not always.
Really hope the weekend goes ok. Follow this blog as it gives a more balanced picture than many and the one you need when there is more and more reliance on the police. It has certainly helped me understand what is going on and to then explain to others.
There is more constructive guidance in your reply than I can recall having in a long time. Thank you so very much. I especially appreciate the suggestion of seeking out a mental health police liaison officer as it is the potential for harm (from both aspects) should my son cross paths with authority in my absence that concerns me deeply. And what a good idea to record a submission to the CCG – one quality I do have is my distinctive voice but it never occurred to me to use it this way. So much easier too than trying to compile some lengthy report.
I will fight for my son – sadly my own sanity is a rather limited commodity and the impact of all this on my own mental health has been significant. I don’t have the energy to engage with the media at present; getting through the day is enough, but maybe one day and it is helpful to hear how I might do this.
Thank you again for your time in replying. Maybe my own paranoia has fuelled thoughts that I have failed to find the right help – in a rather sad way it does offer some solace to hear that it’s not personal.
No paranoia – you are just trying to balance acceptance with justice. Wish you well
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