Review of Section 135 and 136

I mentioned that the Government had recently announced a review of sections 135 and 136 of the Mental Health Act 1983.  Well, the public consultation is now out and you have your chance to have your say.  I would encourage as many people as possible to answer this request for views, whether you are an interested member of the public or a professional of any kind.

The final deadline for this consultation is 3rd June 2014 and it consists of a questionnaire with opportunity to add free comments.  You can read about the review and see the questions posed and you can also email the review team, should you wish to provide case studies of relevance to your view.  Their email address is —

reviewofS135andS136@dh.gsi.gov.uk

Review of S135 and S136 Project Team,
Mental Health
Disability and Equality Division
Department of Health
Richmond House
79 Whitehall
LONDON
SW1A 2NS

You can also obtain Braille, large font or audio formats of the consultation via the contact details or email address, above.

Bear this in mind as you contemplate your response:  the legislation we currently use to ensure the safeguarding and wellbeing of vulnerable people was written in the 1950s.  This was before we rightly desinstitutionalised our mental  healthcare system, before antipsychotic and anti-depressant medications were widely used and before we saw the retreat of our mental health services and the erosion of emergency mental healthcare.  The police service has become relied upon more and more to ensure people don’t fall through the gaps and we’ve seen in case-law over the last twenty years who officers have felt obliged to become “inventive” using other laws, to safeguard people. We have also seen, like in cases such as Webley v St George’s how the police are often compelled to criminalise vulnerable people in order to keep them safe, for a want of other options.

I merely make the argument that we do have a problem.  The solution could take many forms and I fully accept that we need to ensure human rights and civil liberties protections in anything that we decide to do.  We need modern mental health law fit for the 21st century, but that could look like any number of things.  It has been said that the police becoming increasingly vocal on the issue of our legal and health systems is overpowering the argument.  I can actually accept very fully that this is true – it is therefore important that the other professionals and the public, especially service users, put their views forward to ensure we get the law we need, with any necessary safeguards we require, to keep people safe.

This opportunity to modernise the legislation used in emergency mental health care may not happen again in our lifetime – so make sure you have your say.

Deadline


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

Winner of the Mind Digital Media Award.


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8 thoughts on “Review of Section 135 and 136

  1. While I don’t always share your view of the world. I do think things could & should be improved.

    I have huge concerns about safeguarding peoples liberty. I am concerned that officers will in certain circumstances & confronted with the socially unacceptable, distresed, difficult, opinionated, intoxicated & angry wafes & strays of this world – simply default to using any extended powers under the MHA. A bit like Public Order legislation is misused to remove difficult people now.

    I am equally frustrated with the current arrangements & how difficult it is to get them to work & I know that often Police Officers on the frontline are trying their best to do th eright thing etc. I am not sure that my solution looks excatly like yours, but then again it’s probably not that far away & the solution should be a practical one that makes us to work together.

    THER IS A PROBLEM & I have made my submission & encouraged colleagues to do likewise.

    1. If by “socially unacceptable, distresed, difficult, opinionated, intoxicated & angry wafes & strays of this world” you mean somebody suffering a mental health crisis and threatening suicide or self harm then I hope the do use powers under the MHA. But then if it was that easy to differentiate between the 2 AMHP would wait until they’re sober to carry out an assesment.

      My opinion (for what it’s worth)

      1) Extend 136 to include paramedics and nurses.
      2) Extend 136 to include private premises.
      3) Reduce 136 maximum detention to 12 hours
      3) 135(1) no longer need police to execute.
      4) Remove police from 135(2) and include AWOL within Section 17 PACE

  2. That’s the point – I do not mean someone suffering from mental illness or disorder nor probably also those distressed. There is a difference & the state (law) is only able or entitled to intervene in certain circumstances & often non of this is easy.

    Your opinion is worth lots & you are entitled to it.

    If 136 powers are extended to others professionals I wonder how will that work in practice? We will all be off to get trained & equipped.

    I am not against extending 136 powers to include private premises. But like others I have legitimate concerns about this. Today I dispatched colleagues 2 jobs were the police where already there. One in private premises – the person had called them. But they had no legal right 2 be there or at least to remain as no offence had been committed. But thankfully they did stay because there was no bed & the ambulance was reluctant etc. But together the police & AMHP muddled through. Once the bed became available & my colleague could complete the legal paper work we explained that a 135 warrant was not needed! BTW my colleague has now been at work for 16 hrs.

    The other assessment = it seems a person had broken into a police station compound & somehow ended up on 136? I am not sure that this constitutes a place to which the public have access. But the person did appear to be in need of support & assessment so we didn’t labour the point, but got on with the mha assessment. It’s the second time this year that someone has broken in to the station & we have been called. Lucky people are not breaking out.

    I would like to get to less than 12 hours – but we need more AMHPs & medics & beds ASAP.

    I think the police need to be there when executing a warrant – I am allowed to think that.

    I would leave the police in 135(2) – but again accept it’s not just your job & AWOL within PACE sounds ok.

    I would encourage you to make your submission & to be nice to AMHPs.

  3. Just so I’ve got this clear are you saying somebody who is intoxicated and threatening suicide should NOT be detained under 136 even though this may be the only option available. Let’s not forget police owe an operational duty to protect life under Article 2 of the HRC and have a positive duty to protect against the risk of suicide. I would argue Rabone v Pennine trust goes a long way to support this. Bearing in mind it takes 2 Drs and an AMHP to make a decision (usually AFTER drugs/alcohol have had time to wear off) you are asking for a very high level of judgement and risk assessment from a possibly lone police officer to decide who is in genuine need and who are ‘wafes and strays’

    Training and equipment for other professionals? Well why? I’m not suggesting full PPE kit but why does a Paramedic, who police have to call for a Mental Capacity assessment by the way, have to call police to get a vulnerable person to hospital? It would take little extra training and no more equipment. Or how about nurses in A&E having the power to stop suicidal people leaving A&E? Why would that be such a bad thing? Again remember they are better trained than police, who have little or no training, and only go on to call police if they do leave demanding they are sectioned anyway!

    To be honest I agree with your concerns about 136 powers being extended to include private premises but for entirely different reasons. I just know MH staff will call police at 4:49 pm on a Friday evening saying a person is High Risk, need sectioning but they’ve not got round to getting a warrant…oh by the way I’m now off for the weekend! I can’t comment on your first scenario but police can usually rely on Sec 17 PACE for many of the incident involving MH as there is usually a risk to life, albeit a verbal threat, but don’t forget that the person can give permission for us to be there we don’t always need a legal power (though I agree S17 can’t be conferred to others). On the flip side however that doesn’t give us a power to remove a person even after you’ve sectioned them, though I’m willing to be corrected, so I would argue a 135(1) would be needed. Unless of course they are willing to go voluntarily.

    As for your second there are many variations on what is legally deemed a ‘public place’ and MH Cop has covered many of them. But by your argument any place of business would be excluded. Or perhaps they were legally removed to a public place then sectioned, different I may add from removing a person from their own house. Again I can’t comment on your specific case but I would think that it was more than the simple act the act of entering a police station that resulted in the MH team being called.

    More AHMPS and beds? Yep! But that’s not a police or service user problem so why should the law not be changed due to a resourcing issue?

    Why do police need to be there for every 135(1) assessment? Are we really needed to assist with a 70y/o dementia patient? I’ve been to many assessments where I clearly wasn’t needed but the legal powers of the warrant were. I’m not saying we shouldn’t be called if needed when there is are serious RAVE risks but we certainly are not needed in ALL cases.

    Like you say we all have our own opinions and it is what makes the consultation process all the more important.

    1. See that s the problem with texting & writing & not talking.

      Someone who is distressed & “who is intoxicated and threatening suicide should” & can be detained on Sec 136 for the purpose of asssessment. But not all people who are distressd or pissed or homeless or intioxicated or who self harms or who don’t conform to social norms should be arrested & detained on Sec 136.

      After a Sec 136 it takes a medic to decide that the person does not have a mental disorder to discharge the 136, thought good practice & the Code of Practice says that an AMHP should be part of the assessment. The Code of Practice says many things & if it were adhered to this would all be a bit more starightforward.

      I am not sure about the equipment, but lets see where we get to & i might have to get down the gym. Remember the different professions attarct different people & very few AMHPs ever invisaged having to break doors down or cuff & man handle people.

      Nurses & medics in A&E already have holding powers under MHA & indeed MCA but don’t use them & I fear that you are making the mistake of thinking that you aways get called. I accept that in your part of the world you might, but I think it just feels like that. Here colleagues & I carry out & complete the majority of MHA Assessments without police support. Though there is an issue about how we all work togther when there are risks & need support.

      Stand corrected my friend i.e. once someone has actually been detained & the AMHP has completed the Application – that’s why the bed is so important in all this. The person is in legal custody & reasonable force can be used to convey = MHA Sec 6, 8, 137 & 138.

      In terms of places to which the public have access to, there is an ongoing debate, that is often vacuous in nature & I wouldn’t exculde a work place nor A&E nor the front desk of a police station – but maybe the basement of a police station, but as I said if it’s the right thing to do then sometimes the end justifies the means – but we must be mindful when we strech the law that our intentions are good ones.

      Yes more AMHPs & beds & equip the AMHPs to do the job so maybe a little bit Sec 129 action.

      When executing a warrant sometimes, unfortunately muscle is required to keep us all safe & currently that task falls to the police. I accept that others could do it. But my preference is for the boys & girls in blue becuse they are well trained & i fundementally object to this sort of thing being contracted out to private companies. BTW the closest I have come to being seriously hurt was when an 85 year old woman threw a big red telephone at me during an 135 assessment – no one was expecting it, least of all me!

  4. I agree that just being drunk isn’t a reason to section a person but the majority of jobs that I’ve been involved in there’s a threat of suicide and alcohol is a factor. Funny how when we get them to A&E the MH team pull a face as they think we’re waiting their time is its the 5th time in as many days we’ve brought the same ‘pissed,homeless, wafe and stray’ in. Yet their very quick to report them as high risk missing people when they walk out when they’ve sobered up but without assesment.

    You say medics can discharge 136 (interesting bearing in mind that you suggested they would need extra training if they were given 136 powers) yet referring to CoP saying otherwise. If the CoP can only “be departed from if there were cogent reasons for doing so” it pretty much makes it a mute point.

    Who says YOU or any other AMHP has to break down doors. Our MH trust calls out locksmith when doing 135(1) warrants where access may be an issue. Your seeing obstacles where there are none. I didn’t join the police to do a 24/7 crisis intervention but jobs evolve and you adapt or move on to a different role. Besides, if AHMPs didn’t attract the kind of people able to use force why do some staff have C&R training?

    I would be interested to hear what holding powers under MHA or nurses in A&E have as my understanding they can only use them on in patients. They may under the MCA but short of them getting a DoL order sorted or relying on 4b then they’re starting to seriously push the limites of proportionality (5th principle MCA would come into play)

    I can see why you might think once you’ve made your application police could use Sec 6 and 137 but that’s very rocky legal ground. Your ultimately arguing that we can bypass the 135(1) and rely on Sec 17 PACE. Not sure I would like to test that in a court.

    I don’t doubt your seen some spurious locations for a public place and no the ends don’t justify the means (Z v Met would support that)

    I’ve not and never have said that ‘muscle’ will not sometimes be needed. What I am saying it won’t always be the case so why have a law that says it’s ALWAYS got to be there. You would probably still have had to duck the big red phone if the police had been there.

    Finally, the police do have additional skill others do not but just look around and there are other sometimes better solutions to many of the problems the police resolve.

  5. I suspect the reporting missing from A&E is a protective practice/responsibility issue. Most organisations work in silos that just encourages the passing of the buck & responsibility – just in case something happens & the organisation is asked to account for what it did or didn’t do. It’s not a very adult way to go about things, but it’s where we are because when things go wrong someone is often blamed, when the reality is it’s just really difficult.The point I am making is that many people have complex problems that are not easily fixed but society expects an easy fix when it’s just not there. Many of these individuals will not meet the criteria for detention subject to mha.

    In terms of 136 the extra training I had in mind was was the actual doing of it i.e. the practical bit of doing it & taking someone to a POS. I don’t think many people need training to spot someone who is distressed or who may need help or assessment – in my experience it’s usually fairly obvious & as I say I see the CoP ignored most days.

    Your right, I do see obstacles because I work in a system that is not fit for purpose. I see practical problems e.g. the the hanging around in the court waiting for the clerk’s office to give a listing for a court, then the magistrate on the wrong advise saying no because they misunderstand the mha, the paying for the warrant from my own pocket (£18.00 in cash into a machine that gives you a receipt). My LA has thus far been unable to come to any arrangement with HMCS. In the middle of sorting a mha assessment we gotta contact a locksmith asking for a quote & find one willing to acctpt an invoice that might get paid at some point in the future. Add in a pet that is also my responsibility & it’s no wonder I have so little hair left. Don’t forget what I am really worried about is the person & if they require dentention where the bed is – it can literally be 100s of milies away. There is also the matter of dealing with the MH Trust Crisis Team & medics & ambulance & sometimes police & often the designated POS here is full or unwilling to accept individuals on the actual 135 & want them detained on 2s or 3s. This is very much against the principles & spirit of the mha & human rights legislation. In the middle of this chaos I will seek to identify the Nearest Relative & consult them, as I am legally obliged to do. I will also stand on one leg & make many more phone calls & everyone will tell me what I should do & how everything is my fault ……… BTW no AMHPs here have C&R training, MH trust staff get it not LA staff.

    A&E is an interesting place in terms of the mha & the use of any holding powers nurses or medics have. Your right people sitting in the public waiting area cannot be 5/2ed etc but once they are in the bays depending on the set up of the actual A&E, most are now locked with some kind of security access or code/swipe lock. Currently most departments also have some kind of assessment unit attached (CDU or AMU) & it is in these that people waiting for mha assessment end up in. Otherwise they breach the 4hr A&E target time waiting for us to turn up. The hospital often do not consider these patients to be inpatients, but if it looks like a duck & sounds like a duck & waddles like a duck & quacks like a duck- it’s a duck! Anyway the police can’t have it both ways – I often here my colleagues in blue tell the acute trusts that they should be using their own security staff in many of these instances & not to be calling thank u muchly. But then back to the fact that 999 is a very easy number to call & often the police are there anyway. I agree that only in life saving & sustaining situtions could they use the MCA & the person had to lack capacity in direct relation to th matter in hand.

    In terms of having made an application I think we are on very firm ground & have spent some of the local council tax payers money on confirming this. I don’t think I am suggesting that we rely or PACE, I am suggesting that we rely on the mha. I would not seek to bypass a warrant when one was needed & every since we had a visit from a certain police officer I have taken on board what he had to say & seek them now when I might not have previously. I am not sure his force is overly impressed with the increased demand. As with warrant in hand, currently you gotta comit resources to the job. It’s one of the positive aspects of getting a warrant. However I don’t want it to become the norm. Usually the service user nor I need you, which makes it all the more galling when my request for support is met with a big fat no. I accept & take your final points & the police were there – we were executing a warrant.

    Take care

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