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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