Para 16.38 to the Code of Practice

I have to crave your indulgence in this post, because I wrote and published much of it some years ago.  I’ve done a fair bit of cutting and pasting to put out something very similar all over again – let me explain why!

The new Code of Practice to the Mental Health Act (2015) means that all the numberings for various paragraphs have changed.  So when people are searching the blog for advice, this would remain filed away under the old reference number.  I want a substantive post in the system so it can be searched and found by the new numbering system or reference and so this post is about the old paragraph 10.22, now known by the new paragraph reference 16.38, pertaining to how police officers should make decisions about the choice of a place of safety after using powers under ss135/6.  I have just cut and past the whole thing, though – there are some new thoughts, links and a story to follow!

It is becuase this issue remains topical and problematic that I don’t feel too guilty about repeating myself to ensure the importance of this paragraph is understood.  The original version of this post came about after the (then) College of Emergency medicine published a mental health toolkit, to assist acute trusts’ Emergency Departments in understanding the overlaps with mental health and improving liaison psychiatry services for the benefit of us all.  They have since published a report (2014) specific to the use of section 136 MHA after surveying members and fellows of the (now) Royal College of Emergency Medicine (RCEM).  These are comparatively short documents in accessible enough formats and when I opened up the first once and searched for the phrase “place of safety”, I couldn’t find it – because A&E rarely see themselves as being a place of safety, notwithstanding the law of England.  So I searched for the word “police” and it brought me directly to section 11: which also includes a link to Royal College of Psychiatry Standards on s136 (2011):

“All areas in England will have a multi-agency policy for section 136 patients.  There should be an appendix relating to the use of emergency departments.  It is prudent to ensure that this is appropriate for your local service, and that the ED is only used for 136 patients who have an acute healthcare need.  Otherwise mental health services should provide an assessment suite, or where necessary the patient should be taken into police custody.  The policy should also include a strategy to ensure that acceptable time frames for a mental health act (MHA) assessment are established, with provision for police to remain with the patient if they are managed in the ED.  The police should stay until a MHA assessment has been completed.”

In the 2014 survey of members and fellows, the RCEM reported that only 48% of the time had their local police officers complied with local policy.  I was instantly amazed it was that high, quite frankly – most s136 policy documents I read have very real legal problems.  They often prescribe processes that do not closely adhere to the various laws, statutory guidelines and Royal College of Psychiatry standards and I usually end up with a long list of complaints.  Put another way, if I hypothetically detained someone under s136 in every area of England and Wales, it would be highly unlikely I’d comply with 48% of local policies.  Probably more like 5% – a police officer’s first duty is to the law, not to local policy.  If we must insist on writing policies that are different from the law, we shouldn’t be surprised that police officers disregard them.  It is their job to do so, when put in that position.

So based upon that, I want to re-highlight what is now numbered as paragraphs 16.36 to 16.38 of the new Code of Practice (2015) to the Mental Health Act.

  • Para 16.36 – The locally agreed policy should contain a list of identified places of safety.  The process for identifying the most appropriate place of safety to which a particular person is to be removed should be clearly outlined in the local policy.  this should be a hospital or other health-based place of safety where mental health services are provided.  health-based places of safety should ensure that they have arrangements in place to cope with the periods of peak demand, for example using other suitable parts of a hospital, neighbouring health-based places of safety, or alternative places of safety.
  • Para 16.37 – Other options which might be appropriate to the individual’s needs should be considered, for example a residential care home or the home of a relative or friend of the person who is willing to accept them temporarily.  There is nothing precludes other areas of a psychiatric hospital (such as a ward) being used as a temporary place of safety, provided that it is a suitable place and it is appropriate use that place in the individual case.
  • Para 16.38 – A police station should not be used as a place of safety except in exceptional circumstances, for example it may be necessary to do so because the person’s behaviour would pose an unmanageably high risk to other patients, staff or other users if the person were to be detained in a healthcare setting.  A police station should not be used as the automatic second choice if there is no local health-based place of safety immediately available.  (My emphasis.)


Let’s not revisit the nonsense that A&E is not a place of safetyOf course it is: whenever they agree to temporarily receive a patient and by virtue of them being hospitals.  And we understand that A&E can be a distressing environment that can exacerbate symptoms but I’m not sure what we think happens in police custody when the masturbating drunks are singing songs and we’re dragging in offenders who are screaming obscenities at the custody officer, wishing cancer upon their families?  Not a great place to be if you’re mentally unwell.  Has anyone asked patients where they would rather be if it came to a choice – it often does: the RCEM document does talk about service-user engagement, after all.

Of course the problem really is about how local services are commissioned and to smaller extent how and where they are provided.  One of this week’s phone-a-friend queries was from a police force who had been asked to execute a warrant under section 135 of the Mental Health Act.  They were told in advance of attending that after gaining entry, the person concerned would be subject of an initial assessment by the AMHP and DR but would probably need to be removed to a police station until a second doctor could arrive because they anticipated that the man would need to be admitted under the Act and they would need two medical recommendations and a bed that hadn’t yet been identified because it didn’t appear to exist.

So there we had it: on day one of the new Code of Practice to the Act, the AMHP actively wanted the Code breached and was asking police officers to do so.  No clear record of why the health-based PoS was unavailable or inappropriate; no record of why alternatives were unavailable or inappropriate; no identification of those decision-makers, as required by the new Code (para 16.62).  Of course, once the warrant had been executed and the person detained for removal to a Place of Safety, the officers should have followed standard procedures –

  • Call an ambulance – to assist in complying with the new chapter 17 of the Code
  • Try to access the identified health-based Place of Safety for that area – which was about forty-five miles away, in the circumstances.
  • Take the name of the decision maker if access is refused – a new requirement from the new Code of Practice.
  • Consider the alternatives to that health-based PoS if it was unavailable – what was considered and why was it ruled out?
  • Use a police station only as a last resort – in exceptional circumstances only.
  • Limit the use of police custody to 24hrs maximum – so if the bed doesn’t exist, to which PoS will the person be transferred during that initial 24hrs period.

The new Code very much assists the police in ‘pushing back’ against assumptions that the police will keep plugging gaps in crisis care systems, but we need operational supervisors and custody sergeants in particular, to know of these provisions.  If you haven’t read the new Code of Practice, I did a brief summary of it to save you reading all 462 pages!  If you ever have time, focus on chapters 16 and 17, as well as 27 and 28 and if you’re really keen, chapters 14 and 15.

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

Winner of the Mind Digital Media Award.


4 thoughts on “Para 16.38 to the Code of Practice

  1. As u know I v muchly like the CoP but see it & unfortunately even the MHA, especially the guiding principles ignored because of operational reasons & the fact that the infrastructure is not in place to do the job we are to do – but you know this & where the responsibility lies for this.
    But there u go blaming the AMHP for inviting the officers to breach the CoP. They can of course say no & do as you & the CoP suggests & I would never even attempt to execute a warrant without a PoS/bed being identified. Tho I note the code states that this should be identified before the warrant is applied for! Again I will say out loud that it is for medics & MH Trusts (NHS) & Bed Managers to provide the PoS/bed. The AMHP cannot & should not do this. But all to often AMHPs are left scratching around requesting that partners do there not. All to often the medic & team that start the warrant ball rolling have nothing to do with the actual process & the AMHP is left executing the warrant with a Sec 12 medic who does not know the patient! It is one of my pet hates. If I was in charge of a MH Trust I would insist that medics attend MHA Assesments from start to finish & remind them that it is still their job to find beds. They would I suspect be a little more circumspect when it comes to completing Med Recs or suggesting the need for a warrant. I have for sometime been concerned by the over reliance of coercion when it comes to how some practice psychiatry.
    So look wider than the AMHP though of course like all public servants we must be accountable for what we do.

    1. I’m ‘blaming’ the AMHP, if I’m blaming anyone, because it was the AMHP who rang the police saying “Execute the warrant and you’ll have to remove and take to the police station.” They AMHP could either sorted a PoS before ringing – as you point out, this is also required by the Code! – or they could have at least explained why the main area’s PoS was not available or appropriate and could have said, “We need to warrant executing and will probably need the person taken to a place of safety” thus leaving the question of which PoS to the officers, after the detention occured, just as if they had used s136 on someone in a street. Even that wouldn’t have condemned the person straight to custody. Reality was, that the area’s PoS was some distance away and the police station was more convenient for the full MHA once second doctor became available and they didn’t want the hassle of the journey. Since you asked!

      You know me well enough to know that I fully appreciate that most difficulties arise because of commissioning issues – I’m sympathetic to the position this puts everyone in. But given that all of this this is to be the case, the AMHPs (and the psychiatrists, mental health nurses and police officers) involved in operational work have to make choices of whether they allow themselves to be pushed along the road implied by inadequate services or whether they’ll use their knowledge to stand up for patient’s rights and Parliament’s aims. Keep chipping away!

  2. I would expect nothing less than a robust response from the officer !😄 & I do not want 2 c anyone in custody unless they need to be there & that should b exceptional, as u know.

    I did not ask cause I assumed it was to do with a practical issue like the ambo conveying or as u describe. But it is not an excuse to do the wrong thing the wrong way & AMHPs should b held responsible also. I would not do or allow/suppor others to do as described. In my book & bit = no bed/PoS no sorting of warrant! That’s me chipping & banging. It is only relatively recently that we have won this little battle with the MH Trust & me plzed to report that we appear to be making a little bit more progress in terms of how we go about this task 😄 me on my hols so gotta get b4 my other half notices me doing work lols 😄!

  3. PS this AMHP is often found saying out loud that the Neither the MHA or CoP or indeed the reference guide was written or designed for the convenience of the doctors !😄

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