Clinical and Security Risks

Imagine the scenario —

A person is detained by the police under the Mental Health Act and removed to an Accident & Emergency department because of injury or illness that prevents them being taken anywhere else. Following assessment of that condition in A&E it is decided that they need to be admitted to the acute hospital for medical or surgical treatment of their condition.  This could be for any number of reasons:

Let’s imagine various situations —

Perhaps after detention by the police it is thought that they have taken an overdose of a kind that puts their broader physical health at risk and blood tests in A&E confirm this. Perhaps they were detained and complained of chest pains, necessitating observations in a cardiology ward. There are any number of situations, including head injuries, broken limbs, and problems connected to all manner of medical situations where admission may be indicated.

So far, I have deliberately not specified under which particular mental health law the police were acting when they detained the person.

It could have been —

  • Section 136 Mental Health Act – to detain someone at the instigation of the police who is in immediate need of immediate care or control and removal to “a place of safety”.
  • Section 18 Mental Health Act – to detain someone who is absent without leave from hospital, either because they have left the hospital without appropriate permissions OR because they have failed to return to hospital when required to do so.
  • Section 135(1) Mental Health Act – to remove someone from a dwelling to a place of safety for assessment, but following execution of the warrant of detention, it is thought best that someone is checked out in A&E.
  • Section 138 Mental Health Act – to detain someone who is liable to admitted to hospital under the Act or who has absconded from “a place of safety” or whilst en route to it.

What happens if that person then needs admission as an inpatient to hospital?  These legal powers have started, certain duties exist to be fulfilled but are being halted by this diversion into acute care.

What do we do about that original objective?

Of course, most people take to A&E are triaged and seen in a relatively short period of time, without being admitted to a ward as an inpatient.  It is comparatively very few of us that require hospital admission.  Of course, such admission cannot be forced upon a person purely by virtue of their having been detained by the police under the MHA.  Three out of those scenarios above do not (yet) involve patients who are fully admitted to hospital under the Mental Health Act and in any event, the Act cannot always be used to force patients to have treatment for medical conditions and injuries.  So if the patient in our vignette had badly broken their arm to an extent that it may require an orthopaedic operation, they cannot be automatically forced to have it without their consent.


If a person is admitted to hospital, following our scenario above, it will most usually occur because they have consented to that admission.  In a minority of situations it will be because full assessment under the MHA has concluded that admission criteria are met and because the psychiatric assessment is that Treatment Without Consent provisions (contained within Part IV of the MHA) allow that physical / surgical problem to be treated under the MHA.

When that admission occurs, what happens to the originating power of detention and its original objective? —

Following s135(1), s136 and some situations in s138, the purpose is to ensure that a person is seen by a DR and an AMHP for assessment and this could happen on a medical ward, if need be.  Such assessment may or may not lead to an application for admission to hospital and that application could be made to a medical or surgical ward.  Following detention under s18 and certain other situations under s138 it is to return the person to the mental health unit from which they are missing or within which they are legally liable to be detained.

How do we handle the period whilst the person is still subject to those original laws where they have also consented to admission to a medical or surgical ward? — specifically, are the police obliged to remain in situ, in that hospital whilst medical / surgical treatment is undertaken, pending the person being assessed under the MHA or returned to the mental health unit in which they are liable to be detained?

The first thing to say is, there is no single answer to this situation.  The rest of this post is devoted to pushing back against an understandable instinct to make it simple by saying that the police should just stay and sort it out.  The second thing to say, is that the NHS does not have one answer on this, either.  Practice varies from hospital to hospital, sometimes from professional to professional and answers are offered on the basis of what the NHS believes the law to be, others predicted upon hospital policy.  As I have written before, these are not always the same thing and they vary (considerably!) from place to place.


Having given away the punchline early on – that there is no answer, specifically – it therefore needs to be considered in local policy and procedure, which the Mental Health Act Code of Practice requires be agreed between the Chief Constable and the relevant health bodies.

You could point out the following —

  1. Acute hospitals are often not fully integrated into protocols about how the MHA operates, despite it affecting them everyday. In my experience it was always extremely difficult to engage acute hospitals as they see the MHA as a matter for mental health trusts and often don’t attend local meetings.
  2. You could point out that all of the relevant guidance, statutory and professional, leans away from the police being unnecessarily involved in prolonged sitting-around, with people who have been removed for assessment or detained.
  3. You could point out that there is a legal ability to ensure the detention on a ward of patients who were originally detained under s135(1), 136 or (some circumstances of) 138 so why don’t the hospital crack on using s135(3) or s136(2), respectively, to detain the person?
  4. Once a patient is admitted to any general or acute hospital as an inpatient, any doctor can use section 5(2) of the Mental Health Act to detain that person and stop them from leaving.
  5. But finally of course, there is a legal duty on the police to prevent crime and bring offenders to justice so where admitted inpatients are actively assaultative, there is something of duty around keeping medical staff safe where officers leaving would obviously render them liable to assault.

But here are the two most important legal facts, that give you an unsquareable circle —

  1. There is no legal duty on a general or acute hospital to accept legal responsibility for the ongoing legal detention of someone originally detained by the police.
  2. There is no specific legal duty on the police to remain in a health-setting to “guard” people who may or may not leave, pending their assessment or return to a mental health unit.

In other words, you could build whichever argument suits the position you’d prefer to take or the point you’d like to make and no-one will be able to say you’re wrong – but so can your colleagues!! 


You now have your unsquareable position – the police don’t want to be sitting in hospitals all day with people who have consented to be there and who pose no more level of risk than any other patient but the hospital don’t want to accept legal responsibility for people who may choose to leave even though they do this quite routinely for people not brought in by the police.  The Code of Practice requires cooperation and agreement on how all of this will be managed and it should not be left to frontline professionals to battle it out, case by case.  Professionals or even organisations just adopting a unilateral position and saying “that’s the end of it” is just a destructive way for public sector services to work, when actually what’s most important are the effective management of risks, both to the individual who should be at the centre of decision-making and to the broader public.  Instead, it usually because a bad debate about organisational resources and organisational willingness to accept risks.

So we need to work out a compromise and a partnership arrangement

Preferably one where no-one feels that the other is just unilaterally forcing their agenda on the other, especially where that agenda could fall foul of frontline practitioners confident enough to return to legal structures that inadequately bind services together.  If we got into a room and talked it though, we would probably find easy common ground on some basics principles to get us all chatting –

  1. No-one thinks it’s a good idea, to have officers sitting around to secure people who are low-risk, consenting patients to a hospital admission.
  2. No-one thinks it’s a good idea, for officers to leave a person in a health setting where that person represents an ongoing risk to either their own or others’ safety.
  3. No-one thinks it’s a good idea, for one public agency to force things upon an other in the absence of a clear legal authority to do so, where a structured partnership agreement could be brokered by managers that actually takes liabilities away from frontline staff.
  4. No-one thinks it’s a good idea for frontline staff to be improvising their way through these complex issues based upon nothing more than their own professional agenda, with scant regard to that of others.


Here is a (real) situation —

The police detain and 83yr old female dementia patient under 136 late at night in winter.  The lady is cold, not appropriately clothed for the weather and disoriented.  It is obvious she has other mobility issues.  After A&E assessment she is more or less straight-away admitted to a medical ward for elderly adults amidst concerns for her dementia, but also for her physical health.  All of this happens after the s136 detention, but before an AMHP and DR can complete the assessments.  No-one knows for certain how long she was outside in poor clothing for the weather, she as only discovered “missing” when her family called at her home and found her to be absent and the front door wide open.  She seems very frail.  Her family has attended hospital and are by her bedside with two cops stood nearby who have been told by the hospital they cannot leave, because the s136 is still active.

What prevents this being left in the hands of the hospital? —

A unresistant, elderly woman who is frail.  Her family are there and she is making no attempt to leave and there is no indication she will try.  What purpose are these officers serving?  Should the lady suddenly decide she does wish to leave, several legal and security options are open.  Her family could well be positioned to assist in preventing her from leaving, nursing staff and / or security could do this also.  (When I say “do this”, I mean legally speaking.)  She is still detained under s136 MHA until the AMHP and DR complete their assessment, and the lady may still be detained there under s136(2) because despite what the hospital may say in tortured legal arguments to the contrary, they are acting as a “place of safety” for the purposes of that particular 136 detention.  Even if this argument is not accepted, she is now an admitted inpatient on a ward – any DR may use section 5(2) MHA to keep her detained pending assessment and nursing and security staff may assist with this (legally speaking).  Either way, there is a clear basis for acting.

Repeat that scenario but substitute the 83yr old dementia patient with a 24yr old female schizophrenia patient who has self-harmed to such a degree that she has seriously damaged the internal mechanisms in one of her arms.  Quite potentially, she needs reconstructive vascular surgery to minimise a permanent loss of movement and dexterity in her hand.  She has a history of drug use and violent self-harm, possession of edged implements which are mainly for her own use, but which have been brandished towards NHS staff in various situations.  She is detained under a s135(1) warrant and was removed to A&E because of the injuries that were evidenced upon police forcing entry to her flat at the request of her community mental health team.  After initial handling in A&E, she has been admitted onto a surgical ward as an urgent case.  Full assessment will occur before surgery because she is not fully consenting to the procedure but a view has been taken that she can be detained and then treated under the MHA, because the physical injuries sustained are as a direct result of her mental disorder.

Why would the police not remain initially engaged in this situation to ensure the safety of those concerned until at least the full assessment has been done with a view to detaining the patient under the Act?  There are clear duties to keep both the patient and NHS staff safe and the ongoing situation can be reviewed after assessment.  For example, once a patient is detained on a medical or surgical ward, the mental health trust will have a duty to provide staff to support the hospital in their ongoing treatment and care.  But these kinds of situation need to be thought through in advance and made subject of training and protocols.  Apart from anything else, my next blog will make it clear why in the situation of the 83yr old dementia patient mentioned above, I could well be tempted to act unilaterally, in certain circumstances.  It might be the only way of discharging those professional responsibilities that often sit with me personally as a duty inspector.

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

Winner of the Mind Digital Media Award.


16 thoughts on “Clinical and Security Risks

  1. Founder of Home Cook and previous and present experience of employment within both statutory and charitable organisations, supporting adults with various mental health, drug/alcohol misuse. Views are my own. Interesting reading. It is my understanding that Police do not have to reside with a person in a hospital setting who present a risk to themselves or others and this would be a matter of the medical professionals to act upon as above comments.

    I have also experienced where a person has undergone a medical assessment and been released only to act upon self harm immediately following discharge. Having read the above article, I feel there is a great need for improved collaborative working and better ways of communicating between relevant agencies, Staff and medical professionals, placing hierarchy aside in order to accomplish an increase in better ways of working together. I feel this has been a grey area for many years and continues to place barriers in the way when making decisions and who the responsibility of making such decisions should be. Relevant agencies have a duty of care to share relevant information about individuals under the data protection act 1985.

  2. Quick comment on scenario 1. As I understand it a section 5(2) can’t be used to effectively replace a s136. This is one of the specific times when a s5(2) can’t be used – which makes snese as you can only be detained for 72 hrs under s136, if s5(2) was used while the s136 was still inplace then it would allow detention for longer. Interested to hear any comments.

    1. I’d be happy to learn if I’ve misunderstood how these powers could overlap or inter-relate, but the only barrier using either of the powers in s5 MHA is that they cannot be used on someone who is already detained or liable to be detaining by virtue of an application for admission. As s136 is not an admission application, I don’t see a barrier, unless it is noted somewhere else that I haven’t seen it. As I say – happy to learn if I’m wrong.

      1. Can’t find the reference now. Came up last year with a friend being detained. I think the issue is that you are already detained under a s136, you aren’t there voluntarily and you haven’t agreed to be admitted. So the s136 stands until the assesment has taken place and can’t just be replaced. I think it’s the ‘liable to be detained’ bit which is the issue. Logically if you could use the two sections sequentially people could end up being detained for 144 hours…… Still trying to find the clear explanation I found last year.

      2. Granted, but it doesn’t follow that the period of detention would be “extended” and I hope my above phrasing indicates that I don’t think that section 5(2) needs to be used anyway, because the legal provisions of s136(2) mean that staff / security or anyone else party to the decision can keep someone detained pending the assessment by the AMHP / DR anyway. The mention of s5(2) was made, for the benefit of those who persist in the misunderstanding that only the police can keep people legally detained under s136. And of course, no-one can be forced into an acute medical word against their will, purely because the police have applied a section 136 holding power that has not yet benefitted from the required statutory assessment.

  3. You would think that the same principles and working practices that apply to admission from a psych ward to a general hospital should guide clinical and nursing staff in the above situations. When this happens the pt will be accompanied and put on close observations one to one by a MH nurse who stays at the bedside etc etc. Whether it is a detained patient or not. If self inflicted injury or caused by an ‘incident’ and not detained then the s5 powers will be in force until they are assessed under the MHA.

    The police can and are called at any time the staff feel the pt poses a threat ( as per any pt) but the security guards can and do jump in to prevent someone leaving. Never been quite clear if they think this is under Common Law Necessity or whether they have some sort of assumed powers under the MHA. Maybe MHC can guide on this?

    I guess there is always the potential lull between treatment intervention and MHA assessment as you have to be fit enough to be assessed altho maybe this MCA area! Trying to think as a patient what I would do if determined to harm/kill myself or abscond from a general ward. If able to then I guess agree to immediate admission and surgery / tests and recover very very slowly from the anaesthetic. Lull the nursing staff in to a false sense of security as still not assessed for s2/3 admission so they will be having to think about what s5 powers are and who can exercise them. Probably leaving in a gown tho which will get me picked up very quickly.

    But what happens if any pt’s treatment goes beyond 72 hrs and they are not able to be assessed within this time period? If s136 in place then move to s5? What if no s136 and come from psych ward as voluntary pt or self presented and already under s5 from the moment of admission?

    Tied myself in knots now and not referencing just thinking like a patient who wants to escape. And when the ward staff are unsure of their physical restraining powers they will always call the police so what would the MHC advise the staff ( apart from talk to their management)?

  4. Hi, interesting reading and I take note of several points. I am viewing this from a newly appointed head of security for a hospital trust where there are regular debates in regards to the amount of time that the police should remain with the patient. I totally agree with your scenario regarding the 83 year old, and in such situations I would of course be happy to let the police leave, as I would expect the nursing staff to have the relevant training to deal with someone who is non aggressive and suffering from dementia HOWEVER in your scenario where someone has been brought to an A&E department under s136 and is clearly displaying signs of aggression then in my view the police should remain with them until such time that an assessment has been carried out. The risk is furthermore increased when such person is in a busy A&E ward. Police have more support and power to act to protect the public from assaults, more so than security officers who are acting under common law powers. I would welcome advice on where security stand in regards to detaining someone under s136 so as they can be assessed by a MH professional and to what lengths they can stop someone leaving, is this covered by common law as I cannot find anything to support such actions by security officers???

    1. Anyone who has been removed to a Place of Safety can be detained there for up to 72hrs, by virtue of s136(2) MHA. Normally, security and A&E staff reply with “we’re not a place of safety” or a “designated” place of safety, because of the local protocol that has probably stipulated that other areas will be used the majority of the time and A&E is only to be used where the detained person has injuries or medical complications that require A&E treatment.

      There are a couple of things to say about those points —

      1. The word “designated” appears only twice in the whole Code of Practice to the MHA and neither time in relation to a “Place of Safety”.
      2. A place of safety is a PoS because it is at that time being used for the reception and detention of a person who the police originally detained. It doesn’t matter, for the purpose of determining whether it is a PoS, whether that location is specified in the local protocol as a PoS or not. As I often say, my mum’s house could be a PoS if she agreed to it being used for that purpose and I have a hypothetical situation in which I could contemplate the contingency arising, however remote it may be.

      So if the police removed someone under s136 to A&E (or anywhere else) and then left the person there, for whatever reason (see below), it would be legal for security or anyone else who is a party to that service to keep the person there for assessment by the AMHP / DR.

      NB: the police don’t need permission to leave … it is not for the NHS to ‘let’ them go. It is to be determined by the officers, in conjunction with NHS staff jointly – this should be a partnership, after all! I have the example to hand of where I had to direct officers to leave a person in A&E against the wishes of NHS staff. It involved a situation where the patient taken there was subsequently sedated by DRs and was flat out. Two firearms incidents and a child rape were reported in very quick succession and there was simply no way I could justify two cops sitting in A&E with a sleeping patient when I was struggling to resource three such serious incidents. I would have confidently expected a proper dressing-down had I not brought the officers out.

  5. In response to Dan’s post above I would really like to see general hospitals draw up very clear and legally referenced guidance to all nursing and security staff. The Trust’s have large well paid legal departments with access to specialist solicitors and the NHS Litigation Authority. It is not OK to continue with situations where police remain in A&E when it can cause even more distress to an often very frightened and unwell person. The point being here that they are unwell – too often it is assumed by A&E staff that someone detained on s136 must automatically present a threat to others – or why would the police be involved?

    However well meaning the officers are their very presence can be experienced by the pt as extremely intimidating.and can escalate distress.

    In this area of London (covered by 1 Trust) the ‘decided’ place of safety’s are all A&E’s . 3 different hospital Trusts, with 3 different policies on restraint and preventing pts leaving the dept. The most worrying aspect for me is the use of security guards in order to prevent someone NOT on a s136 leaving the dept – and not when admitted to an A&E ward where s5 powers can be used.

    These can be pts who have self presented and while I understand the concern the use of security guards is often crude and potentially constitutes assault when common law necessity potentially doesn’t apply. If someone verbally challenges a security guard on what grounds they are being physically blocked from leaving it seems they either don’t know or have been instructed not to say anything! This then escalates the situation.

    If I was head of security in a general hospital I would want my legal department to get their act together. Otherwise the potential for conflict and the legal consequence will be ever present.

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