Legal Literacy

You may or may not remember that a couple of years ago, I somewhat vented my spleen in a post which contained a list of all the legal myths and nonsense that we tend to hear at the interface of the policing and mental health.  It remains the case, in my humble view, that we need to improve the standard of legal education across the 999 and related professions, not just around mental health law, but around the basic operation of the criminal justice system.

Little seems to have changed in those two years, so I thought I’d list them all over again with a few new ones!  Things I still frequently hear from all of the relevant professions despite the fact that none of them are correct! —

  • The police cannot arrest under s136 MHA if the person is in A&E
  • To decide whether or not to prosecute a mental health inpatient for an offence, the police need a statement of evidence from a psychiatrist affirming the patient’s “capacity”.
  • Only the police can keep someone detained against their will in a Place of Safety, after being removed there under s135(1) or s136.
  • Only the police can use physical force to restrain a patient in a community MHA assessment, in order to compel that person to hospital once ‘sectioned’.
  • It is always the role of the police to recover AWOL patients.
  • If the police are in a private dwelling dealing with a mental health crisis, they can use the Mental Capacity Act to remove the person to A&E or a place of safety.
  • Victims of crime with mental illness are inherently unreliable at court.
  • Once you’ve detained a patient who is AWOL from hospital, you can keep them in a police cell if the hospital to which they should be returned does not have a bed.
  • A&E is NOT a place of safety.
  • An AMHP cannot use force on a person who they’ve just ‘sectioned’ to move them into an ambulance.
  • Paramedics cannot use force on a person that has been sectioned by an AMHP [who has properly delegated authority under s6.]
  • An AMHP can order or instruct the police or ambulance service to detain and convey under s6 MHA, someone for whose admission to hospital has been applied.
  • If we don’t have a bed into which the admit someone who needs ‘sectioning’ then we don’t have a bed and that’s the end of it.
  • Violent patients detained under s136 MHA should always be detained in the cells.
  • A person who is detained under the MHA in hospital can’t be arrested or prosecuted.
  • You cannot get a s135(1) warrant for an MHA assessment if you already know you can get access to the premises.
  • The police can neither apply for nor execute a s135(2) warrant on their own.
  • You cannot arrest and remove a s37/41 hospital order patient from a secure unit after they have committed a serious offence.
  • You can’t stop psychiatric patients leaving a hospital ward and going AWOL if they want to.
  • You cannot arrest an inpatient for an offence, unless the RC in charge gives permission.
  • There is no point, legally, in prosecuting a s3 patient for violence on wards because they’ll end up back in the same place getting the same care from the same professionals.

I want to add a few more, that have emerged in recent times and in particular I want police officers to focus on the fact that the first of this new list is something that AMHPs are very frustrated by.  So much so, that they’re actually laughing at us! —

  • An AMHP without police support can execute a warrant under s135(1) or s135(2) of the Mental Health Act.
  • You can’t assess someone under the MHA if they have consumed alcohol.
  • Where paramedics have declared someone to lack ‘capacity’, this allows officers to remove people against their will to hospital.

We all need to try and raise the standard of legal literacy around these issues and just for absolute clarity: the wording of these bullet points is the wording of what is not true!  I want to see professional practice influenced by greater reference to, use of and based on easy access to legal resources and therefore the law itself!  But as a starter for ten we need each and every professional not only to take responsibility for their own legal knowledge, but also for stimulating a culture in their professional environments where emphasis is on legal literacy.  This is not just about keep yourself out of legal difficulty, it is also about advocating for the rights of vulnerable people with whom organisations have contact because we read far too often about those rights being violated for the convenience of organisations.

I dream of a day when I don’t hear this sort of stuff, anymore!

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

Winner of the Mind Digital Media Award.


26 thoughts on “Legal Literacy

  1. A nice list to begin a session or up date legal knowledge however, I feel you are again/still appearing to include an A+E department as a place to which the public have access when it should be qualified that the waiting area when open is such a place but the treatment area of A+E is not.
    Also on A+E, the implication from your list is that it is a place of safety! It is not until the person in charge accepts the responsibility for it to be used as such. We need to be clear on this as police are currently taking individuals to A+E and attempting to leave them there believing that they have been accepted for treatment in a ‘place of safety’.
    Little things but big big debates stem from them.

    Thanks Mike, keep banging the drum

    1. The treatment area of an A&E department is a place to which the public have access – otherwise who are you treating there?! See paragraph 33 of the Sessay judgment if you don’t believe me. The judge made explicity reference to there being no problem using s136 in A&E, and didn’t confine his remarks to public waiting areas.

      And A&E can, like absolutely everywhere else, be a place of safety. I’d pedantically argue that when the patient is accepted for any kind of treatment or care, it starts acting as a place of safety – not when the staff member agrees to it being used as a place of safety. In other words, you can’t say, “Yes, bring the overdrose patient through but no, we’re not acting as a place of safety.” It’s all or nothing, for a variety of legal reasons. Happy to explain that further if required, but don’t want to bore you!

  2. Never a bore but sometimes debatable! If a police officer arrests somen under s136, finds they have an injury, they can, on their way to a place os safety, take to an A+E department for treatment either with agreement or under MCA. Once there it has not become the place of safety and the 72 hour clock has not started ticking; should the detained person require ongoing treatment the A+E department if accepting the role could become the place of safety and agree for appropriate examination and intyerview to be arranged there. If they do not accept the responsibility, the person remains in the custody of the police officer.

    1. Everything’s debatable, James – and in my experience the NHS and local authorities have generated decades of intertia by doing little else! I don’t see how you can seriously argue the points you’re making – I actually think them quite extraordinary!

      If someone goes to A&E because of overdose fears and is detained there against their will for 12hrs whilst bloods are monitored and checked, etc., are we seriously suggesting that when they are then taken to a Place of Safety in MH unit or police station, that a further 72hrs is permissible?! Where’s that written down? Hospitals are places of safety because the Act days they are – not because hospital managers agree they are. And this is a quite distinct point from whether that obliges them to accept people into their building – everywhere that could be a PoS retains that right to say ‘No’ if an individual set of circumstances means it would be dangerous and / or unlawful (by virtue of other law). I know 43 Chief Constables who’d like to take you up on the offer of self-defining this status, though – outside the will of Parliament – about whether their police stations are places of safety. Many of them would like to see police stations removed completely and according to your argument, they are already free to do so – bearing in mind that hospitals and police stations have equal status in s135(6)?

      There are various other points I’d argue with but I don’t want to repeat what I’ve already written elsewhere on this BLOG, but the main one for me is that the Act makes it clear that hospitals are places of safety. Not hopsital that are happy to accept the responsibility, or whose managers have made certain decisions – it’s like the police saying, “We’re not a place of safety, but we’ll allow people to be held here until a health building is available” and then not counting the time spent in custody. Again, if you want to contrast the PoS definition, look at s55 MHA for Part III patients where a specific subordinate clause is deployed after the word ‘hospital’ that just isn’t there for s135(6).

      More importantly, and in complete of acceptance of the arrogance of this(!), it almost always isn’t your decision, anyway! Health and social care organisations (especially in Wales!) almost never accept legal responsibility for detention under s136(2) but prefer to wilfully breach Codes and guidelines left, right and centre to keep the police retained in hopsital settings, even when it is outrageous and quite inappropriate to so. You need to be clear that national advice (legal checked, in triplicate) is that the 72hrs runs out 72hrs after you arrive at and are accepted into the first building you go to. If you think differntly, then feel free to take over the person’s detention 72hrs as the police are leaving, keep the artifical clock ticking and be prepared to defend it in court. That way, everyone’s happy! 🙂

  3. ‘Where paramedics have declared someone to lack ‘capacity’, this allows officers to remove people against their will to hospital.’

    I’ve had this happen to me a few times. so who can declare ‘lack of capacity’ and who is entitled to remove a person against their will. I thought this was the point of the MCA. I’ve felt I had capacity at the time (taken an overdose many hours previously) and yet I’ve had paramedics standing on my doorstep telling me ‘ MCA either I go the nice way or they call the police’.
    PS I sat through a lecture on the MCA yesterday and I’m still confused

    1. James I am afraid that you are mistaken/wrong & the police officer is correct.

      J – I suspect, what has happened to you = the ambo crew improvising a solution to a problem as they see it & from their point of view.

      The MCA states that we must assume an individual has capacity & that we must assses it in terms of a specific decision that needs to be made. It should not just be a sweeping statement or assumption.

      As for who undertakes the assessment & makes the decision that a person lacks capacity – the MCA referers to the “decicion maker” & that is basically the person best placed to make the decision (sometimes simply “Johnny on the spot”) & the MCA does not say who the person has to be.

      As for who can force you, well again, if having assessed you as lacking capacity the ambo crew can, but they will call the police probably. But of course it must be proportionate to the risk posed etc.

      BTW me not surprised you are confused, lots of people are!

      To be fair to the crew they probably dont want to be blamed for doing nothing & of course I do not know all the details. But its sounds from what you have said that they have coerced/trong-armed you into the back of the truck. Perhaps with the right intentions.

      u take care

      1. Thanks for your answer. Should I find myself in this predicament again I will stand my ground and I’ve been promised a credit card size MCA checklist so I’ll whip that out and argue! That may prove I have capacity.

      1. J – me v much hopes that u do not find urself in the predicament again & I warn u that even if u demonstrate that u have the capacity to make what others will consider to be an unwise decision, it is likely that they will then seek to utilise the MHA route or somehow get u from a to b.

        It is mostly a natural human response to want to prevent/help people from wanting to harm themselves.

        It’s the somebody must do something theory because if they don’t, somebody will get the blame for doing nothing.

        The individual complexity of the experience of the individual & distress is beyond the response of society. It’s referred to as moral panic & or outrage.

        U take care J

  4. Of course the elephant in the room here is the ‘person’ everyone is making decisions about. Surely this 72hr rule was set up for the ‘person’ and not for staff to manipulate it according to resource?
    So it has to be from the point the ‘person’ was detained?
    Sorry if I seem simplistic or un – informed about the process but so are most detainees.

    1. Chocolatewig

      I certainly take your point – but once the police officers have used their 136 powers the person is under arrest & in legal custody & has little choice until that has been discharged or the time runs out.

      The 72 hours begin when the person arrives at the PoS. If you access to the CoP I would direct you towards 16.26.

      hope that helps.

      1. The 72hrs begins at the point where the person arrives at and is accepted into a Place of Safety – this is clear in paragraph 16.26 of the new Code of Practice.

  5. Michael
    I’m interested what your thoughts are on the AMHP’s (and other’s) powers under S137. You rightly (I believe) point out that the power to forcebly remove and convey the patient are not exclusively powers which the Police have. While both Police Officers and AMHPs doubtless come in many different shapes and sizes all Police Officers are given restraint training and are equipped to carry this out. AMHPs are not. You have previously rightly pointed to the tragic occassions where the restraint of mentally disordered people have coincided with their death but what is more dangerous- trained staff carrying out authorised techniques or untrained staff reliant on whatever brute force they are able to muster. How would the Police or Court view an injury (or worse) sustained to a Service User by an ill prepared and untrained professional? We should not equate a legal power to carry out an action with it necessarily being proportionate or appropriate.
    The Code tells us that AMHPs should make decisions on which method of transport to use (17.12) and that a patient should only be conveyed by private vehicle if safe…and the most appropriate way (17.17) so essentially if a degree of restraint has been required then AMHPs, relatives etc. absolutely should not be conveying.
    You state that it is a myth that “An AMHP can order or instruct the police or ambulance service to detain and convey under s6 MHA, someone for whose admission to hospital has been applied.” I have been told (by an Inspector) that a Police Officer can require others to assist him/ her. Although I have been unable to find any evidence of that (perhaps it is a common law power or does not really exist) if this power exists then how does this fit with the “powers,authorities, protection, and privileges which a consable has …” identified within S137. Can the AMHP (who would have that legal status once the application had been completed) not therefore require others to assist?
    I would appreciate your perspective

    1. You’re inviting me to choose between a distinction I’m not offering up!
      Saying that AMHPs (and others) could legally use force is not the same thing as saying that they should be doing it untrained. But it is connected to my proposition that if Oarliament gave these powers to people other than the police, then there should be dialogue about when those other people use them and their agencies should recruit, plan and prepare for that.
      We reject the proposition that all restraint on inpatient wards is something we should call the police for so why do we reject that proposition when AMHPs are busy sectioning physically frail, medically vulnerable dementia patients in their home? Am I suggesting the AMHP rolls up their sleeves and cracks on untrained? – no. Am I suggesting that the organisations who know that they are in the professional business of coercing others should plan and preparing for this reality so that when coercion that is below the levels commensurate with asking a fairly paramilitary looking police officer to start wrestling the vulnerable (with techniques that many inquiries argue are wholly unsuited to MHA restraint), they have capacity to do so? – yes.
      So I’m not arguing between the options you’ve offered me above. And the inspector you refer to is wrong.

  6. Gentlemen I like this conversation & you have both highlighted the difficult postion the AMHP is often placed in. It often seems to me that the AMHP has all the responsibility/duty for co-ordinating the MHA Assessment with non of the power or authority to instruct others to do what they should/need to be doing i.e. the “myth” described above.

    We very often cannot get the ambo to attend in any reasonable timescale, let alone make a considered choice about how people are conveyed. Let me be clear I only think/want the police involved in this when it is absolutley required & we i.e. AMHPs & the NHS should be able to manage & yes unfortuaanely coerse in most of the situations we find ourselves in – I make for a good second hand car salesman & very often get from A to B, sometimes by the skin of my teeeth min.

    We know the AMHPs have no training in this regard, though NHS staff probably do – but we simply do not have how we do this anywhere near right & no one really seems to care, above & beyond those directly affected/involved.

    As an alternative LSSA or indeed CCGs could commission trained “muscle” to support the process, I recall seeing a tv programme some years ago where “security” went with childrens social workers in Bristol – when they were visiting places where threats & violence were feared. Indeed, to a dergree this is exactly what happens when private ambos are used to transport people miles away from home 😦

    I have suggested over many years that some consideration should be given to commisiioning something that is able to do what is required. But then again if you think about the parity of esteem stuff – should it simply not exist already & I know that MHC puts forward v valid reasons why a fully loaded ambo needs to be used.

    I am also bound to say that the AMHPs do the assessing & the legal bit & push pens & if we want or expect them to start rolling their selves up we will have to wave good bye to many & think & plan for what the new super AMHP might look like & how they will be trained & equipped.

    I often wonder out loud about Sec 129 & who or which organistion is obstructing the AMHP?

    1. Obstruction of any professional is not committed by not doing what they say or what they’d prefer you did to make their life easier. It is committed by actually, err obstructing them from doing THEIR duty.

      1. Luckily sleeve rolling up is not often actually required & 2bf I am mostly agreeing with u.

        In terms of obstruction I am thinking about more than simply not doing as an AMHP suggests. I think I could at times make an argument that AMHPs are actually at times being obstructed. I might just be being hopeful, but then I live in hope (sometimes).

        Most people think of obstruction in terms of someone preventing the assessment from happening e.g. A family member or friend preventing access etc. But I think perhaps that could be stretched to other professionals & organisations not fulfilling the role that could be reasonably expected of them. I am also sure that not everything is done legally, never mind following the guiding principles or CoP.

        Right enjoy ur weekend & take care

      2. Only where those organisations have a duty. If you look at the Republic of Ireland’s Mental Health Act, the Garda are strictly obliged to do certain things around admission to shopital. the RoI Act talks of ‘duty’ and uses words like ‘must’. England’s MHA doesn’t oblige the police or the ambulance service to do as they’re told, doesn’t oblige them to accept a delegated s6 authority and doesn’t the Act is clear that the person is in the AMHPs legal custody. So a police officer or paramedic who feels there are good enough grounds to decline your kind offer to convey the patient isn’t obstructing you, legally speaking – if anything, your employers may be failing in their Health & Safety obligations by having you and the person you’ve just detained in that position without an ability to draw upon resources that are under your control.

        Of course, the Code does impose a duty on the police where a patient is violent or dangerous, but we all know that many patinets are neither of those things and unlikely to reach such precarious thresholds.

        Each case on its individual merits.

  7. It is a Saturday morning & me not going to go digging in my Jomes – but there are other potential offences under the Act & certainly failures on the part of most of the organisations involved to comply with the CoP. I wonder about the medic who completes a Med Rec for a Sec 3, leaving blank the where appropriate treatment is, or indeed listing many wheres & expecting someone’s liberty to be removed on that invalid form. particularly when they are unwilling/unable to return to amend the form. The form is certainly not valid in some instances & if the medic has done this wilfully I wonder?

    In terms of the ambo refusing to convey? “you cannot be serious” ? & I trust you are simply attempting to be obtuse for the sake of it. Of course the AMHP can decide it is appropriate to use other means to convey a detained, or indeed an informal patient. However the whole drive of the Parity of Esteem stuff & Crisis Concordat Stuff is to ensure that patients are transported in appropriate vehicles, with appropriately trained medical staff. I have heard you say this many times & reflected in your blog in relation to Sec 136/135 & this is clearly a NHS responsibility.

    It’s certainly not about the AMHP telling or instructing, it’s about us all not actually be resourced to do the task we are especked to do. Wouldn’t it be just fine if we all turned up a knew what we were doing & did not have to engage in squabble.

    1. But ignoring the Code of Practice is not an offence, not would it – inherently – be obstruction of the AMHP. You’re right abotu the medic who fails to fil in the location for appropriate treatment, though. They’re leaving the AMHP (who is presumably expected to fill it in, once the bed is found) to create a forgery and I suspect, a s126 offence. Using a DR’s Recommendation that needs to confirm appropriate treatment is available at the relevant hopsital when the DR didn’t specify a hopsital, but is purported to have done because an AMHP or someone else subsequently filled in the location …. highly dubious! If I were the AMHP, I would simply record the fact that the DR was declining to provide a medical recommendation and inform the DR that they would be cited by the AMHP as the reason no application could be made, the AMHP not having been provided with valid medical recommendations on which to base an application.

      On the ambulance bit: I’m not simply being obtuse, just boiling it down to the legal position. Notwithstanding any Concordat Action plan, or local working agreement, the ambulance service is allowed to make its own decisions about who and whether they convey. So if they felt that it would be unsafe to convey without a police officer on board, for example, they would be entitlted to decline to convey without this. That’s their risk assessment, not something the AMHP or the police can impose upon them. If the police were declining to attend because there was no imminent high risk emergency in your MHAA and they just had two seperate firearms incidents and child rape reported (real example, my own experience), then they are perfectly entitled to say that they can’t attend and neither the police nor the paramedic would be *legally* obstructing you as an AMHP. They may well actually be hindering, but that’s not always, or even usually, legal obstruction.

      So I’m not being obtuse, just reiterating the legal autonomy that ALL of us have, whilst operating.

  8. The first scenario as is exactly what happens sometimes & the solution is nearly exactly as you describe it. But often the medic can’t or won’t return & either a second section 12 medic or the on call medic has to be rustled up. All a bit tricky when your standing in someone’s house uninvited, with no legal authority to be there & when the crisis/HTT want to be on their toes to their next visit. I have also know the dubious route to be improvised 😔😡 no doubt people think they are doing the right/wrong thing for the right reason.

    I absolutely take your legal point about the ambo & police having an element of choice & also have to manage their demand & resources. If I am honest I have a greater degree of sympathy for the police in this regard as it really health business & often it is not that the ambo can’t be sent. But because the ambo have risk assessed that the police are required that they won’t dispatch until officers are on the scene. Even though we have been their several hours & told them we can manage. I sometimes reflect on this & wish my employer was as concerned about me & my colleagues.

    It is the most challenging position to be in – making the decision that someone needs to be in hospital/detained but not having the means to make it happen. I once spent 17hrs waiting & have also (very rarely)simple had to walk away & suggested that other AMHPs do likewise because of risk of harm. I have known these situations to drag on for days/weeks & wonder how & who would explain to any enquiry what went wrong & who was responsible. It is interesting watching everyone blame everyone else & everyone pretending that the system works!

    Rite it’s mini rugby for me. Take care

  9. Really interesting discussions which just go to highlight how complicated we have made the world of MH legislation.
    Just want to throw in 2 points from the potential patient perspective. Re s136 – the very idea that the 72 hrs should EVER be delayed while I am detained for treatment in an acute hospital is simply perverse. As a patient you are constantly bounced between authorities arguing the toss on how to /how not to detain and and where and it seems that the distress, the very reason you have needed detention gets completely lost. Do professionals etc not realise that so many patients are acutely aware that this is going on around them and feel like some sort of hot potato that no one wants to touch.Even at my most psychotic I have a sense of this although wont frame it that way.Its why we stop asking for help when we still can because the assessment process is harrowing, traumatic and nothing about it feels safe or anything to do with healing.

    2nd point re MCA. There is a trend here where the EDT/AMHP team – usually the s12 Dr- has taken to advising police officers and paramedics over the phone how to assess under the MCA with a view to removal from the home as the EDT/AMHP team cant/wont go there. However its often very clear that the officers/paramedics are way out of their depth. This has happened with me on 4 occasions.
    1 time police removed me on this basis.1 time officers told EDT where to go. Other 2 time I was just about compes mentes enough to state that i had capacity and that the officers were lackeys of the MH workers and shouted Sessay at them (or I think I did would be more accurate).. Point is each and every time police/paramedics were in my home for hours quite poss after a while with no legal basis and in the middle of all this I am extremely unwell and all i can think is how to get everyone out of my home and then what do i do when they are still outside.And here you know that there is no longer informal admission so get assessed = sectioned for many. As a potential pt/detainee it raises the stakes and the fear factor and in turn this actually increases my risk as I dont trust/too terrified of a system that is meant to heal me. Not a criminal, but feel like one.

    1. The MHA is def more complicated than most people would assume & the 72hrs following on from the use of Sec 136 or indeed 135(1) cannot be “dragged out”. I would hope that most of the professionals involved do indeed realise that the person involved has at least a sense of the difficulties/issues, no matter how unwell they might be & I also suspect that they a v real & lived experience of no beds or beds miles away & of the v real tension that sometimes exists between different professionals & organisations. It is difficult for frontline practitioners to sew a silk purse from a pigs ear.

      On your second point as you know the MCA should not b being used – simple! (Not). Try not to shout at them.

      The system & many would argue that the law, is not fit or equipped to do what is being expected of it & that’s even before we begin to discuss the merits or otherwise of psychiatry & treatment etc.

      I hope you find a way to avoid being in the position you describe. Take care

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