Monitoring the Mental Health Act

Yesterday saw the publication of the 2012/13 report by the Care Quality Commission on the Monitoring the Mental Health Act.  Here are just some headlines for you –

  • The MHA was applied over 50,000 times for the first time in history.
  • The number of people subject to the frameworks of the MHA is up 12% on the previous year, against a number of years where it is rising.
  • There have now been over 19,000 Community Treatment Orders, with almost 4,500 in this reporting year.
  • Only 83% of acute mental health wards and 76% of rehabilitation wards had sufficient staff to allow patients to take supervised leave.
  • There were just under 22,000 detentions under section 136 MHA – this is down 7% on the previous year.
  • Of those 22,000 section 136 detentions, 7,500 were removed to police custody as a place of safety – this is just over one third of all detentions.

The report itself is well worth reading, there are also various easy access formats available on the CQC website.

All of the CQC reports are available on my blog if you want to look at other trends, etc..  There is much in there that could be focussed upon in this year’s report, but I want to highlight just two things.  This is why I’d encourage you to read the thing for yourself, as there is much of interest that I haven’t got space to cover here – although maybe I’ll do a subsequent post, who knows?!


The figure being thrown around on Twitter is 17%, often just after the word “only” in italics, capitals or with some other emphasis.  Just 17% of people detained by the police under s136 MHA are subsequently admitted to hospital and this is down 1% from the previous year.  It means that one in six people detained are admitted.  The data we have, as collected, doesn’t allow us to know for certain how many people detained s136 were released without follow up (although some areas write to everyone’s GPs that section 136 was used.)  The inference always is that 17% or 18% is quite low and there are a few things to say about this.

Certainly, the figure has reduced massively in the last five years, as the use of section 136 has increased.  In 2007/08 the percentage of patients subsequently admitted after assessment was 29%.  As the use of section 136 has gone up, the number of people admitted has remain, roughly speaking, the same – hence the overall percentage has dropped.  From figures in particular areas, I know the higher use of section 136 is associated with higher numbers of people who need little follow up and so this all gives rise to questions about how the police use this power in the first place.  Is it appropriate?

On the one hand: officers are not mental health professionals so are not making diagnostic judgements when they are decided whether they think someone is “suffering from a mental disorder and in immediate need of care or control.”  On the other, officers should be thinking carefully about whether it is necessary, strictly speaking to detain someone at all and if so, whether this is the appropriate power by which to do so.

The previous Code of Practice to the Mental Health Act (1999) always used to make it explicit that section 136 should not be considered a substitute for the use of other powers.  This phrase was taken out of the current Code of Practice which is being updated and I already know that some have put forwarded the idea that it should be re-instated.  I think it should be put back as it links to how s136 is used in two key scenarios that I argue affects overall (mis)usage –

  • If someone is drunk in a public place and officers are querying mental ill-health, should they detain s136 MHA or for alcohol-related public order offences? – assuming a situation where the police feel they cannot avoid some form of detention.  After spending hours and hours debating this with all kinds of professionals, I come down to this viewpoint:  officers should assess whether they think someone they might detain or arrest is capable of being described in law as “drunk”.  If they are, stay clear mental health legislation unless there is objective, third-party or documented information that person lives with a mental health disorder.  If they do, then section 136 is in play and may add certain benefits to safeguarding the person, once sober.
  • If someone has committed a substantive offence, like any kind of assault, theft or damage, should they be arrested for the offence or detained under s136? – again, after much discussion about public protection and public interest, including how to balance off people’s right to treatment, dignity and care with broader considerations, I come back to this: the presumption should be an arrest for the offence unless – the offence is victimless or trivial; if the person reporting more focussed on getting help or support for someone and in all the circumstances it looks and feels more like a mental health


Once you’ve spent hours with mental health nurses, AMHP and others, this sort of approach seems to balance off everyone’s concerns.  It also seems to account for everyone’s frustrations.  We could probably all agree – we don’t really want the police arresting people for public order offences or possession of small amounts of cannabis when officers have been called by family members to a distressed relative experiencing psychosis in the road outside their house.  We also don’t want individuals who are alleged to have committed very serious offences indeed, detained under the Mental Health Act without consideration of a full investigation and prosecution.  We don’t want section 136 suites full of drunk people, but nor do we want detainees excluded from assessment and purely because they’ve consumed a tolerable amount of alcohol.

And we have to acknowledge that this will involve tolerating judgements by others that we may not take:  it is up to the police to decide what to arrest for, but it is difficult for a mental health nurse to understand why yet another drunk person is being brought to the 136 suite if there’s no real belief that they have a mental health disorder or background.  Whilst it is up to the PoS staff to decide whether someone is going to be allowed in for assessment, it is fairly difficult for police officers to understand why someone is excluded to a cell block if they’ve consumed an amount of alcohol that would still render it legal for them to drive a car.

All professionals need to see the catch-22 that is generated here:

  • Police misuse or abuse of s136 leads to NHS areas developing tactics to cope with high levels of inappropriate demand.  We see this in the form of exclusion criteria at PoS facilities, disinclinations in A&E departments and other resistances.  Put simply: in some areas, just some of the time, NHS staff think the police are “taking the Michael.”  So we need to use section 136 far less, in a more targeted way and use other powers of detention more often, even where there may be some MH concerns in the background.
  • NHS staff need to see, that officers have very legitimate reasons for sometimes detaining very drunk, sometimes resistant people under the MHA and need to be appropriately supported in clinical risk management that is way outside the scope of their first-aid certificate.  This applies to A&E departments where it will sometimes be appropriate to go, as well as to PoS facilities in other locations, like MH units.  We need to see the under lying emergencies and human rights challenges in some cases and appreciate the legal context within which police officers are operating.

We need to learn more about each other’s perspective! #timetotalk


I was particularly delighted with the level of focus in this report on section 140 of the Mental Health Act.  Having only blogged about it last week, I read the various remarks in this year’s document with a broad smile on my face.  If you can tolerate an explanation as to why: I first read about and raised the issue of section 140 to health professionals in my local area in 2006.

It always struck me as a piece of law that was largely ignored, disregarded or simply not known and understood – various health professionals have told me over the years that it is a “red herring” and that it “lacks teeth” etc., etc., and my attempts to suggest that it implied obligations and imperatives on Primary Care Trusts, as they were called at the time, fell on deaf ears.

In fact, when I have referred to being laughed at and patronised early on in my work on policing and mental health, it was with regard to s140 that some of this occurred.  It also occured during 2013 when discussing it in a forum or two.  Like any legislation: it is only going to be effective if those it affects are willing to comply with it or if it is properly policed.  It has always struck me as a piece legislation that is neither of those things, hence CQC attention to it today is very welcome.  It also partially vindicates some of the things I’ve said for years, which have been ignored so that is why I have been smiling broadly.

I won’t repeat my recent blog except to say this: there is debate amongst professionals about what it represents.  The CQC took over the legal responsibility for overseeing the MHA from the old Mental Health Act Commission which offered advice to the professionals that we now call AMHPs as to how to deal with situations where applications for admission are indicated but they cannot be realised for the want of a bed.  The MHAC advised a course of action which Professor Richard JONES describes as being of “doubtful legality” in his Mental Health Act Manual.  Of course, the MHAC themselves took legal opinion from counsel before publishing that advice and it obviously conflicts with Professor JONES’s view.

That’s OK: that’s what we have courts for.  It has been my unhappy pleasure to inform a couple of AMHPs and DRs that their inability to realise a bed for admission is giving rise to illegalities that will need to be challenged in court and legal action has been threatened to protect vulnerable from languishing in custody (like MS v UK) and to protect custody sergeants and police forces from very real liabilities.


This is all about NHS commissioning with contingency plans – I have written before about attitudes towards the use of capacity in policing and mental health, highlighting a different attitude.  Last night at work, I started the shift with a custody block that was 75% full and I was nervous about whether we would end up with new prisoners from incidents displaced around the force area.  25% spare capacity is not much to play with when I know that in some NIGHT shifts we can arrest enough people to more than half fill our custody area.  I was fully vindicated in my fears, because we were full by 1am and displacing prisoners elsewhere.

If we put this really simply: section 140 MHA implies (to me, at least) that CCGs have to commission services in such a way as certain units in their areas maintain empty capacity so that they can still admit urgent cases when they arise, above and beyond predictable levels of demand.  Running wards at 98% capacity and above, means you will never, ever have sufficient slack to manage unpredicted demands.  It should also be borne in mind that this will probably need to apply to a range of kinds of inpatient beds from acute admissions, to psychiatric intensive care units and within the medium secure estate.  This also has to apply to gender specific admissions pathways and to age appropriate accommodation – it is always going to be harder in specialist services where overall beds numbers are fewer.

Is this realistic?  Many NHS managers seem to think it isn’t and disregard it on that basis; either wifully or by omission.  All I will say is that public services have a clear legal duty to do many things that should not be needed very often, that involve rare elements of complexity – this includes your Chief Constable planning and preparing for riots, child abductions and armed sieges, even though they are thankfully rare events.  In no-way, shape or form, is it acceptable for the Chief Constable to disregard these legal and operational realities.  The same applies to NHS services because in this particular instance, Parliament has legislated and we learn from this report that many CCGs are ignoring the will of our elected Parliament and that 87% of surveyed AMHPs do not know what their local “cases of special urgency” provision is.

I am aware that two police forces are putting this omission on a more formal footing by giving CCGs and providers formal notice that there can be no expectation that police forces will illegally hold patients in detention, because of a failure to prepare for the implications of this legislation.  As such, the CQC highlighting it seems timely and welcome.

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

Winner of the Mind Digital Media Award.


3 thoughts on “Monitoring the Mental Health Act

  1. In C&I Trust the policy document produced referring to s140 contingency plans is probably one of the worst written documents I have ever seen. Really does look like someone has written it on the back of a fag packet on the way back from a 1/2 day course where they have had a light bulb moment by realising that there is actually a duty. No AMHP I know across all areas of the country have been familiar with local plans or guidance .

    The CCG must know they are on dodgy ground legally and the reports get more dire by the moment. However the problem seems to lie in the way they collect and access information to monitor this. As long as they are totally reliant on MH service providers telling them this is ok – and by this I predominately mean MH Trusts – then the failings continue.A commissioned service is not going to highlight it’s failings to it’s primary funder. The CQC have only just been given inspection teeth and even with the worst failings there are few sanctions.

    So it will take the police to follow through to get change as no MH Trust or LA is going to risk upsetting the already stretched relationships that exist across health and social care services. It takes another threatened organisation not under the same funding umbrella and with different legal responsibility to do this. Or a Judicial Review which is what they should be looking out for as cases rise.

    What an appalling inhumane situation we have ended up with. I too am glad the CQC has finally highlighted this in the report but anticipate a closing of ranks amongst health services

  2. Well just who is going to do it?
    There’s a saying which goes “When you’re up to your rear end in alligators you forget your real job was to drain the swamp”. A situation that front line police officers have found themselves in for many years when attempting to address situations involving mental health, whereupon the police would unwittingly find themselves acting as some kind of paramilitary wing of the NHS. However as a result of the governments cuts the police have found themselves with a smaller bucket and no reduction in the size of the swamp. This has resulted in a determination by the police that tasks which are the responsibility other local authority departments and partner agencies are passed back for them to deal with. It is a craft the police have been forced to develop in order to direct their scarce resources most appropriately and one which will become even more important as further spending cuts bite into police budgets.

  3. Ok will make a strategic suggestion…left my magic wand on the bus. And alligators scare me..

    Firstly this blog and the twitter feed are read widely from police to MH workers and the victims of poor services.
    So many people could choose to act if they want either as individuals, anonymously, through their federations, UNISON and the RCN ( why do you pay your subs?). If you are a health and social care professional you have a duty to act – read all your Codes of Practice and remember you have a personal liability under common law – something you may want to bear in mind when you don’t speak up.

    For each failing Trust/ service there is a CCG that commissions it as Michael explains so well

    . E mail the chair of the CCG with this link. Highlight Michael’s legal references to their duties as the commissioners. Copy in Norman Lamb as Minister, Charles Wheeler MP (chair of all parliamentary group on MH). Andy McNicholl the journalist at Community Care whose articles cover this and a BBC news journalist or producer of your choice ( current active interest from BBC News, 5 live investigates, Inside Out and Panorama).

    So one e mail to each chair of each CCG and copied in to 4 people who will disseminate and share. Dont mass e mail.

    Attach the link to the recent Andy McNicholl Community Care article

    Some Trusts cover more than one CCG so for C&I (as an eg I am aware of) 2 e mails would be sent – one to Camden CCG and one to Islington CCG. And vice versa.

    If you are a professional worried about being a whistleblower then within the body of the e mail state that you are
    disclosing information and raising concern under Whistleblowing protective legislation for statutory employees.

    If the Trust the CCG has commissioned has failed a CQC inspection ( as the one above has) then include this info – found on the CQC website. Adds to the concern.

    If the same Trust has been mentioned in any article you are aware of then link it in (ditto above )

    If you want to get formal tell the Chair of the CCG that you are putting them ‘on notice’ that there are existing concerns affecting safety of patients

    Now I don’t expect masses of people to do this as individuals and some – like the police – are likely to need a lot of protection to do so. But to do nothing – particularly when you can, particularly when you are a MH worker and have a clear duty of care, is unacceptable at this point.

    And sooner or later someone at some CCG will think ‘hang on.. what’s this about? And will seek legal advice and consult with the services commissioned. All which leads a paper trail , all which then requires disclosure at any legal challenge any other body of individual may make.

    And the NHS settles over 98% of cases before reaching court – nearly always because they do not want any legal precedent that will force them to change what they do . CCG’s are likely to follow this same route. Which means that they are so entrenched it won’t occur to them that there are actually real cases of real people who are prepared to forego individual financial settlement in order to get legal change.

    Am now off to search for my magic wand…

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s