What is the relationship between someone’s behaviour and any medical condition they may have? To what extent is anti-social and / or criminal conduct caused by or correlated to any mental distress or illness they are suffering? And having just distinguished between the idea that some people in mental distress may or may not be mentally ‘ill’ – in the diagnostic, psychiatric sense – and that this may or may not have any relationship at all to any offending behaviour – to what extent does that distinction actually matter?!
Whenever the discussion comes up about use of section 136, there are usually frustrations to one extent or another between police and mental health services: the police want to be able to use the power and effectively access the ‘right’ kind of NHS services and hand the person over, as envisaged by guidance. The NHS have often remarked that the police over-use section 136, citing a low ‘conversion rate’ and many cases where they thought that officers could or should have used the criminal law, instead. Having just distinguished between could and should, to what extent are those words important when discussing this? Powers of arrest are vested in police officers, not in nurses, doctors and social workers so to what extent is it acceptable, if at all, to remind that these decisions are ours to take, constitutionally speaking? This question merely intends to reflect the fact that if you put 50 psychiatrists in a room and drip feed them information in the way a police officer receives information, they will not be even vaguely consistent as to what initial action officers should take. Trust me: I’ve tested this claim empirically!
As Lady Justice HALE remarks in her book ‘Mental Health Law’ (5th edn, 2010), “We still don’t know what section 136 is for” [my emphasis]. She outlines problems in some areas accessing Place of Safety services or problems for officers enduring long waiting periods for assessments. She points out that in most situations where officers are contemplating using this health-oriented provision, they would almost certainly also have the potential to consider using Breach of the Peace provisions and / or substantive criminal laws. Therefore, she argues, there is every reason to wonder whether section 136 is actually under-used, as much as thinking it could over-used. I should imagine if you are a mental health professional, you may have just coughed or choked on something, perhaps re-reading what I’ve just written?! Yes – she argues that s136 could be under-used, because it’s very difficult to work with and a natural disincentive. Certainly, when I first joined the police, it was much faster and less hassle to arrest people for offences than under s136 – what we know from fifty or sixty years of policing research is that such factors can influence decision-making, whether or not they should.
WHAT IS SECTION 136 FOR?
Any ideas?I … I admit that I haven’t got a clue. It is a highly unusual legal provision that first appeared in its current form in the Mental Health Act 1959 – only the police can start this wellbeing-oriented health assessment process and it can be used in circumstances where the person concerned may also have offended. So when should it be used in circumstances where someone may have offended; when should people just be arrested for crimes despite concern about their health and wellbeing?
The 1959 Act consolidated various provisions from pre-existing mental health legislation, some of which had been written in the nineteenth century. In 1983, the ‘police’ parts of the Mental Health Act were just lifted wholesale into the new Act and this is (partly) why we are now policing our twenty-first century, human rights-oriented model of community mental healthcare with laws conceived at a time when my Dad was my son’s age. It provides a power to a police officer to make a decision about whether someone is or is not suffering from a mental disorder. But in allowing them to do so, what are we trying to achieve?!
Some who’ve piled into the debate about section 136 in recent years have observed that the police use of this provision has increased over recent years. In 2008, the IPCC published their research on s136 and showed it had been used around 18,000 times in a single year. Last year, the Health and Social Care Information Centre reported 23,500 uses. And it has been an oft-quoted feature of the debate to talk about the ‘conversation rate’ – how many of those people detained by the police under s136 were subsequently detained by the AMHP who assessed them? Certainly not most of them. Very far from it!
MISSING THE POINT
Section 136 was never, ever about the conversion rate to admission! It seems to me that it’s about keeping people safe when they are thought not to be and then assessing whether or not those circumstances give rise to a need for any state intervention or support, whether forcibly or otherwise.
Just look at the actual wording —
Section 136(1) MHA – “If a constable finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety.”
The clue to the purpose of this lies in the next sub-section –
Section 136(2) – A person removed to a place of safety under this section may be detained there for a period not exceeding 72 hours for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an approved mental health professional and of making any necessary arrangements for his treatment or care. [My emphases.]
A person is removed to a place of safety “for the purposes of an examination and of making any necessary arrangements” for treatment or care. Care does not necessarily have to involve detention and enforced medical care – surely just one of purposes of the AMHP role is to act as a foil in what is otherwise a medical assessment? Remember, until 2007 the AMHP was called an ‘Approved Social Worker’ (ASW) and the role was a social work function. Why? If section 136 lead to assessment which identified that someone who didn’t realise they were diabetic in such a ways as to potentially make them seriously ill, is this success for failure for the use of the power? The conversion rate discussion suggests it’s a complete failure – but apply common sense and a grateful patient who’s long-term health is now likely to be significantly better than it otherwise would have been and we see something else.
Of course, the conversion argument also makes further mistakes, even if you do accept it as the whole, overarching purpose. The HSCIC figures are for hospital detention, not admission. When you look at the full figures, they distinguish all s136 outcomes into admission (under ss2 or 3), informal outcomes and no outcome. What we don’t know, is how ‘informal outcomes’ further break down into informal hospital admission, referral to secondary care community mental health services or referral to primary care or GP services. When you look at informal outcomes as well as detained admissions, you will see figures like 85% or 90% of the total. That’s hardly a tragic ‘hit-rate’ in identifying those with a mental disorder, bearing in mind those initial detentions were made by cops with 4-6hrs of mental health training.
We heard a couple of years ago that HSCIC reported a 20% further detention rate. Last year this dropped to an even-lower 17% against a rise in use of section 136 by the police. Proof of overuse, right?! Maybe – when we hear of street triage initiatives aiming to reduce the use of section 136, I have to smile as I recall Lady Justice HALE’s point that section 136 could be significantly under-used. But how would we find out?
When you compare some police forces you see disparities in the rate of usage of section 136 compared to their population. I know that some ‘usage rates per population’ games are utterly fraught with mishap but when I learn that West Midlands Police and Nottinghamshire Police are using section 136 of the Mental Health Act a similar amount despite one having three times the number of police officers and three times the resident population, you have to wonder why? Of course, one example could be that West Midlands Police are massively under-using section 136 and overly criminalising people under others laws: the truth is we just don’t know and all of this hangs on what you think section 136 is actually for. Certainly, West Yorkshire Police and Thames Valley Police are using section 136 more frequently than West Midlands Police, despite fewer officers and smaller resident populations. Why?
I wonder, for example, whether we would find concordance in police areas if we were to look at the overall total of people detained under the MHA and detained for offences who were suspected to be mentally ill. Maybe if you’re in distress whilst intoxicated you are more likely to be detained s136 in Oxford and Leeds whilst being more likely to be detained or a drunkenness or public order offence in Birmingham and Coventry? We don’t know. It would be interesting to know how many people were arrested in these areas for section 136 AND for offences in circumstances where their mental wellbeing was in question and these data are not routinely collected and certainly not analysed.
But all of this just keeps bringing us back to how we should manage the centre of my Venn Diagram: policing, mental health and criminal justice. Where these three things combine, what is the ‘right’ thing to do. All of the debate we’ve heard as these issues have become more prominent over the few years is various people’s opinions – including mine – but no-one seems to be defining the overarching strategic purpose. We know that the criminal justice system is aiming to prevent crime and bring offenders to justice. You can argue all day and night about whether it is achieving what it realistically could or how we could do it better, but at least we know. What are we trying to achieve where mental health meets this head-on?
What is section 136 actually for? What is Street Triage actually for? What is Liaison and Diversion actually for?! Until we have clear answers and until we collect the right data and interpret it properly, we’re just busking and arguing over what tune we’re trying to play. We don’t know very much that is really valuable about section 136 usage because we don’t know what we’re trying to achieve and what it’s for. We therefore won’t know whether current efforts to reduce the use of it by street triage is against a background of under-use – or not.
This is what I am increasingly convinced about: we’ve no idea what we’re trying to achieve!
Incidentally Brenda HALE – now Baroness HALE of Richmond and a Justice of the Supreme Court – is my very favourite judge. You could definitely say I am a fan of her common sense and turn of phrase but not enough of a fan to pay £85 for her textbook on mental health law which is available all very good libraries! 🙂
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