New Code of Practice

On April the 01st 2015, a new Code of Practice for the Mental Health Act 1983 will come into force in England, subject to final Parliamentary approval. Wales will continue to operate to the 2008 Code of Practice (Wales). This new document follows last year’s consultation process in which many of us gave a view about how the old Code (2008) could be improved. So we will shortly move on to my fourth Code of Practice to the MHA and I will have to commence the process of updating this whole BLOG – almost five hundred articles! – as one major theme running through my writing since I started in 2011 is that the 2008 Code of Practice was all too often ignored, misunderstood or misrepresented. In some instances, I wrote whole articles about one paragraph of the Code, so that will certainly need amending!

It’s probably worth remembering what a Code of Practice is and what it represents, given that its significance doesn’t change on April 01st – it was the Munjaz case from 2005 which heard legal argument in the House of Lords (now the Supreme Court) about legal significance. Mr MUNJAZ took legal action against Ashworth Hospital for secluding him during his enforced treatment in such a way as to violate the (1999) Code. Eventually the Law Lords ruled that disregarding the Code of Practice was acceptable, as long as the departing professional or organisation had ‘cogent reasons for departure’. Otherwise, the Code should be followed and this remains true for the 2015 edition.

QUICK COMPARISON FOR POLICE OFFICERS

There were four chapters in the previous Code that I used to tell operational police officers to focus on and these chapters, slightly altered and completely renumbered, are again a part of the structure of the document —

1. Chapter 10 is replaced by chapter 16 – police powers & places of safety
2. Chapter 11 is replaced by chapter 17 – conveyance
3. Chapter 21 is replaced by chapter 27 – leave of absence
4. Chapter 22 is replaced by chapter 28 – absent without leave.

If you’re really wanting to get into this and read more deeply, then also see these chapters —

5. Chapter 4 is replaced by chapter 14 – MHA assessments.
6. Chapter 5 is replaced by chapter 15 – emergency admissions.
7. The new chapter 13 is a development – the interface between the MHA and the MCA.

PARTICULAR REFERENCES FOR THE POLICE

You’ll remember I once did a post, highlighting some of the more important paragraphs of the (2008) Code. In April, I’ll be cutting and pasting that text into a new post for re-publication, with the new references in it. This will then mean it’s properly searchable on the BLOG and on search engines. In the meanwhile, here is a ready reckoner to keep you busy!

The following paragraphs are all those I’ve found myself regularly quoting to make various operational points and they are ALL within the new Code, under new reference numbers, as follows —

4.12 = 14.17
4.47 = 14.48
4.55 = 14.56
4.90 = 14.89
10.10 = 16.11
10.22 = 16.38
11.5 = 17.7
11.17 = 17.34
21.36 = 27.38
22.13 = 28.14
22.20 = 28.22

NEW DEVELOPMENTS

The Code of Practice is seventy pages long than it’s predecessor, so I’m sure our AMHP colleagues will be reading profusely in the coming months. There are several new chapters and ideas here, but not a massive amount that radically alters the ground beneath our feet. When you read through the main four chapters, you’ll see that much of the content is strengthened. For example, whilst the overall time that someone can be detained under s136 MHA remains 72hrs, the new Code requires that the maximum period in police cells, if used, is 24hrs. The implication being that detainees should be transferred from the cells to the NHS after 24hrs if detention is ongoing.

There are certain other things to note:

1. Paragraph 16.20 states explicitly that police officers should not be called to hospital wards to use powers under s136. Where patients are admitted to hospital wards, nurses or doctors holding powers under s5 should be used instead.

2. Paragraph 16.29 points out that the police should be using s135 and s136 MHA rather than common law powers to prevent a Breach of the Peace. In light of the Hicks v Commissioner ruling, it is vital that this is reinforced and that local procedures outline how police officers access Crisis Teams and other supports, where dealing with mental health emergencies on private premises.

3. Paragraph 16.34 outlines how police officers should not be expected to remain at the place of safety until the end of the assessment, the police should leave as soon as it is agreed safe to do so. I note here, that NHS staff could simply not agree and that would appear to create unresolvable tension! The importance of good, local policies cannot be under-estimated.

4. Paragraph 16.62 makes it a requirement that where any detainee is excluded from a hospital based place of safety, the name of the decision-maker is recorded with reasons. This would include A&E if officers have determined that A&E is the appropriate location to which someone should be removed.

5. Paragraph 16.68 now makes it explicit that s136 detainees at a place of safety may be searched. Why the anomaly of there being no legal basis to search s135 detainees has been allowed to remain, I have no idea!

I’m going to stop there for now! I’ll return to a few things connected to this once I’ve full re-read the whole thing – all 464 pages. I’m suspecting I’ll find little else that significantly affects the police, but I may be surprised. I’ll also re-publish some of my earlier posts, all newly re-referenced for your greater convenience.

Happy reading, those of you who choose to wade into this!

But I leave you with this final thought: it seems very apt that the picture they chose a picture for the front of the new Code is an free-floating, unfathomable optical illusion of considerable complexity — it just rather sums up the whole state of UK mental health law, which could barely be made more difficult if we tried.

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Winner of the President’s Medal,
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award

 

All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2019

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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.

Government legislation website – www.legislation.gov.uk

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