Another Dozen Little Details

Again, your indulgence is craved on what is essentially a repeat-publication post.  I’ve argued that there are a dozen or so little nuggets of legal knowledge in the Code of Practice to the Mental Health Act that police officers really need to know in order to be effective but the introduction of a new Code of Practice (2015) on 01st April means that all the numbering and references have changed.  All of it is still there, but renumbered just to ensure that the police get confused all over again!  Not really – but it does have that effect!  So it’s back to the text books for us all and as the new Code is almost five hundred pages long, divided into almost forty chapters, it’s an awful lot to take in.  I’ve now managed to actually read it straight-through, having done similar with the old Code some years ago and having vowed never , ever to do so again!  But I haven’t been able to avoid it, since it’s actually now my job to know this stuff.

But if you’re not at the stage where you are prepared to give up a few days of your life that you’ll never get back – and why should you?! – here are those dozen details, under the new referencing system.  Whether you commit them to memory, or just focus on remembering the summary of what they’re about, it should improve your ability to police effectively in this area —–

  • Paragraph 14.17Don’t threaten patients with being “sectioned” to induce them to agree to voluntary admission
  • The threat of being “sectioned” should never be used to persuade a patient to enter hospital. How voluntary is it anyway, if it only occurred after being threatened with legal detention?
  • Paragraph 14.48Explain why the police are still needed at a MHA assessment if it’s conducted without a s135(1) warrant
  • Where a Mental Health Act assessment is going to take place in a dwelling but where no s135(1) warrant is in force, the AMHP coordinating the assessment should explain why police involvement remains necessary if it is sought.
  • Paragraph 14.56MHA assessment does not always have to be delayed until the effects of drugs or alcohol have worn off –
  • It is often said that “You can’t assess someone under the MHA whilst they’re under the influence of substances. This is the paragraph that shows this is not correct. The paragraph certainly advises delay where possible, but it may not always be possible.
  • Paragraph 14.89 Applications for admission under the MHA must be made to a specific hospital
  • It is not sufficient to specify the mental health trust to which the patient will be admitted.  But this is the paragraph that is often cited to show that you can’t make an application to a hospital that is full.  Begs the question how the CQC ever find 120% occupancy on wards, doesn’t it?!
  • Paragraph 16.11You can make applications for s135(1) warrants without previous attempts to gain entry
  • It is often said that you can’t obtain a warrant without previous attempts to gain entry having been made. This is the paragraph that shows this to be incorrect. It stipulates that if applications are made without previous efforts, AMHPs need to set out the reasons for the Magistrate. This is in order to draw their attention to the fact that they can and to the reasons as to why in this particular case.
  • Paragraph 16.38 The police station should not be the automatic first or second choice as a place of safety
  • This is the paragraph that custody officers and detaining officers should bear in mind when considering the use of the police station as a place of safety. What else did you consider or try, before resorting to it? If you can’t answer that question, you’ve got more thinking to do before seeing the custody sergeant. If you’re the custody sergeant, I’d ask the question!
  • Paragraph 17.7 Sedated patients should be accompanied during conveyance by a suitable professional who is trained in the care of such patients
  • This will normally not be a paramedic because they are not licensed to administer drugs to sedated patients. It will normally be a nurse of a doctor and officers asked to assist in the transfer of patients from one place to another, should bear in mind this requirement and ensure such a professional is involved.
  • Paragraph 17.34 Police involvement in the conveyance of patients under the MHA should be based upon them being violent and / or dangerous
  • This is obviously a far higher threshold than patients being resistant to admission or transfer and officers should be certain to ensure that they are acting according to this part of the Code. It may be that local protocols assume all coercion under the MHA should be done by the police: this appears to be outside the intentions of Parliament who gave others the power to do so and this paragraph sets the bar somewhat higher than a patient being merely resistant to admission / transfer.
  • Paragraph 27.38Voluntary patients cannot be required to seek permission to leave hospital
  • But they can be asked to inform staff that they are leaving. This is important in situations where officers are called to mental health wards to reports of offending, involving voluntary patients. The Care Quality Commission repeatedly warn of the dangers of de facto detention whereby patients under no obligation to remain in hospital are ‘denied’ leave for various reasons. Where a voluntary patient chooses to leave hospital, either briefly or completely, they should be allowed to do so unless the nurse of doctor involved applies a holding power under section 5 of the Act.
  • Paragraph 28.6It is the responsibility of hospitals to ensure repatriation of AWOL patients, once found.
  • If an AWOL patient is located by the police reasonably close to the hospital from which they are missing, it may be officers seek support from a local ambulance service and return the patient to that hospital – that may often be quicker than anything else and it ensures some clinical screening and oversight. Where patients are found further afield, it may not be possible to secure ambulance support (trusts often decline to convey beyond their boundaries on long journeys) and it would be a breach of the Code of Practice to convey by police vehicle, where that is avoidable. It may also be unsafe for officers to do this, for various reasons.
  • The responsibility for returning patients sits with the hospital from which they are missing and it would be both lawful and potentially safer for forces to secure a temporary location where someone could be kept safe, pending that hospital making those arrangements.
  • Paragraph 28.14The recovery of AWOL patients whose location is known is a matter for MH services
  • But the police can be asked to assist in the risks involved suggest it is appropriate. So where, for example, a s3 patient who has been granted s17 leave fails to return on time and telephone enquiries by the ward reveal they are at home, it is up to ward staff to co-ordinate re-detention. It is for NHS managers to ensure they have access to resources by which to do so.
  • Paragraph 28.22All unauthorised absences by patients should be reviewed to identify risks and prevent recurrences
  • It is a requirement that all absences be reviewed.  Given the frequent involvement of police resources in searching for patients who are absent, it seems reasonable to for the police to have an input into this process, especially because the police will have a record of that persons absence history which may cut across different hospitals or even different mental health trusts. That could very well assist the management of risks.

This list is NOT exhaustive: there are other paragraphs in the Code of Practice where it may be worth committing the thrust of it to memory but in order to keep this list manageable, I have capped it at a dozen things. I would encourage frontline police officers (in which I include custody and communications staff) to read the full text of these paragraphs and consider them in operational situations. They can make the difference as to whether you say “Yes” or “No” to requests that are made of the police and help with building a rationale or audit trail for why you did whatever it is that you did or didn’t do!

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

Winner of the Mind Digital Media Award


All opinions expressed are my own – they do not represent the views of any organisation. (c) Michael Brown, 2015

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.

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23 thoughts on “Another Dozen Little Details

  1. 4 April 2015

    Dear Mentalhealthcop

    Thank you very much for all your help in giving us information about the new Code of Practice MHA:

    •Paragraph 14.89 – Applications for admission under the MHA must be made to a specific hospital –
    •It is not sufficient to specify the mental health trust to which the patient will be admitted.

    But this is the paragraph that is often cited to show that you can’t make an application to a hospital that is full. Begs the question how the CQC ever find 120% occupancy on wards, doesn’t it?!

    I would like to ask whether or not 14.89 is a new provision or has it been in there for some time? What happens if the Rule 12 doctors do not specify that a patient should go to a specific hospital? Does that invalidate the AMHP’s application for Section 2 under the MHA to a specific hospital?

    Thank you so much for your invaluable support.

    Best wishes


    1. Rosemary, it’s an ongoing requirement – it was in the old Code of Practice under a different paragraph number (para 4.90 of the old Code). The s12 DRs make medical recommendations and in the case of a s3 admission have to declare that the kind of treatment needed by the patient is available at that kind of hospital. But it’s the AMHP who makes the application so they take medical recommendations and make the application to a named hospital. If the hospital were not named, and for example they’d given the MH trust name, then the application is invalid and the hospital probably wouldn’t accept the patient.

      Hope that helps!


      1. Dear Mentalhealthcop
        I am very grateful for this help. Please may I ask questions related to this answer:
        1] At what point does a person’s section 2 start? Is it when the application is written? Or sent? Or received by the hospital?
        Is it illegal to state to a patient that they are under Section 2 MHA when the paperwork for admission by the AMHP has not actually been written, and only the 2 Recommendations by Rule 12 doctors have been written at all? And the receiving hospital has not accepted the admission because the application has not been formally made, sent and received?
        Thank you very much for all your help.

  2. U have asked the police man – but cause me reading & AMHP me will answer.

    The person is is liable to lawful to detention & in legal custody at the point the AMHP makes/is able to make the application. The AMHP cannot make the application for sec 3 unless the medic has said where. However it is v disappointing that the new CoP has endorsed & allowed the listing of where! The Durham case springs to mind!
    The person is not detained until the AMHP has made the application & the person is not subject legal restriction on their movemt etc, above or beyond the rest pf us. Hope that helps. Btw we can make the application if u wander off between A & B as long as the medic has personally examined & we have interviewed in an appropriate manner. Me likes asking if & telling the medics that they have to have actually done that ! (Unfortunately)

    1. I am most grateful to you for your help. I have seen a number of cases in the press where there has been an issue about the legality or otherwise of the person who the AMHP would LIKE to section but there is a debate as to HOW that sectioning can be done. So, is there any way that an AMHP can “section” someone without any Rule 12 Drs and their recommendations?
      Can a person be removed from one hospital acute ward – not A&E – by a police officer under Section 136 and taken to a mental health hospital for treatment? And then wait for an AMHP to “section” under Section 2 or Section 3 as the case may be with or without a Rule 12 Dr’s recommendation?

      1. The new Code of Oractice says that shouldn’t happen, Rosemary – if the staff on a non-mental health ward / unit think someone needs to be detained and assessed, they should use holding powers under s5. An AMHP can’t sextion anyone without a medical recommendation so the only way that someone can be detained in one place and moved is by the police using s136, which they can’t in your hypothetical situation.

      2. Thanjk you both so much for all your help. I do believe that there needs to be a real investigation into the whys and wherefores of the legislation. I know that Nick Clegg is saying that Mental Health must have proper parity with Physical Health. But this in turn goes back to Ancient Times when it was stated that healthy mind in healthy body. So there is nothing new under the sun. The only difference is that compulsory sectioning of people whose liberty should not be taken from them is in fact a Human Rights issue. Mumby in the Cheshire West decision made it clear that deprivation of liberty must be properly exercised and only recently the Law Commission wrote to me to state they are conducting a further consultation this year surrounding Mental Capacity Act 2005 and DOLS.
        Thank you so much

  3. U keep saying rule 12 ?

    An AMHP cannot section anyone without a valid Med Rec for Sec 4 or two valid Med Recs for Sec 2 & 3.

    The cases u see in the press I think represent a misrepresentation of the legal position & plz bear in mind that most people forget that it is a legal process (unfortunately). A person is not sectioned until the AMHP makes the application & the AMHP cannot make the application until they can write on the pink form the where. It is not a v nice position to be in when there is no where or when where is 100s of miles away!

    Ur second ? relates to Sec 136. If an officer uses Sec 136 properly then yes a person can b taken from one place of safety to another. But in the example u use I will point out that Sec 5/2 has no such powes of transfer ?!

  4. Rule 12 plz?

    In general terms the legal forms that r used for the MHA r pink & white.

  5. Thank u 😄 I just thought/feared u were talking about something I knew nothing about!

  6. For a Sec 2 or 3 two medics r required. The first one should know the person the second should be Sec 12 approved or the GP or in the case of LD or CAMHS be a specialist in the area.

    It is only for a Sec 3 that the medics needs to specify that appropriate treatment is available in s certain part of a hospital. But rember the definition of treatment is v wide. For Sec 2 the medics only have to say that assessment is required but not where !

    The AMHP has to always make the application to the where.

  7. One further question, please, if I may, what happens if after 6 months on initial Section 3, does the AMHP have to be involved for an extension of the Section 3 or not? Thank you so much.

  8. Sec 136 can b used without an AMHP & Sec 5 holding powers & forensic sections r something else!

    A section 3 can b extended without AMHP by the doctor. But plz remember by then the patient has had two chances at a Tribunal

  9. I am truly grateful to you. I can see why people wanted simplified code of practice but it seems to me that it is an enormous tome of work with so many pages. How is anyone expecting the ordinary person to know what is in it? It baffles me until it is explained by you the experts.
    Best wishes

  10. Thank u

    But there r no real experts just people trying their best within a system that is not fit for purpose or to do what we would like if it was us or our mum, son, brother, sister, dad etc.
    u & me can but try & hope.

    Take care

    1. Thank you so much. I agree with you that it scarcely seems fit for purpose. Why hasn’t anyone changed it in all this time? And where is the parity between mental and physical health? A person does not usually get forced to go into hospital against their will unless it is a Court of Protection issue under the Mental Capacity Act 2005 and not everyone is mentally incapacitated who is sectioned under the Mental Health Act 1983. I really feel the whole thing needs to be redrafted so that it is on a par with ordinary health systems and treat it as Human Rights instead.

  11. Rosemary the ?s u pose & the conversation there in requires more than a Twitter type exchange & lots of people will have/hold different views.

    The current legislation can b traced back to the mid 1800s & the current MHA linked v directly with the 1959 Act! These were v different times, certainly there were beds, but also many people in hospital who did not need to be there & whose treatment was v poor & often barbaric 😔 think ECT without anaesthetic etc & rubbish drugs with terrible side effects etc.

    Only the government of the day has the power to change/amend the legislation & they have looked at it & made no significant changes, other than to introduce CTOs , of which there appears to b little evidence to suggest r of any use & they have tinkered with bits & with the CoP, but who ensures compliance? I see the CoP & indeed the MHA itself disregarded most days😡😞

    There is no real parity of esteem & there is evidence everywhere to back that fact up😔

    The MHA allows the state to infringe an individual’s human rights, because it is a due process & without getting drawn into a whole debate about the need sometimes for coercion in MH. Sometimes people r ill & need to be in hospital. I suspect less people than r currently being detained but many complicated social & economic & medically based theories lie behind that.

    BTW in an emergency the MCA can be used to provide life saving/sustaining treatment without going to the Court of Protection. But I think I know what u mean.

    I would contend that nearly everyone who is detained under the MHA Act will have capacity. Indeed the MCA v clearly states that we should assume that everyone has capacity until we have a reason to think otherwise.

    So it’s the politicians that need bothering & if the figure really is 1 in 4 then there r enough of us to bother them!

    Take care

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