When does detention under s135 or 136 end, once someone has been detained in a place of safety?! It’s actually easy to answer, just harder to put into practice.
It ends when one of three things happens –
- A Doctor says, “this person is not mentally disordered within the meaning of the Mental Health Act”;
- An Approved Mental Health Professional has made necessary arrangements for that persons treatment or care;
- 72hrs expires after their arrival at the first place of safety to which they were taken after detention.
Easy, right?! Maybe.
PUTTING IT INTO PRACTICE
It will get harder in the real world, when we start to see real circumstances intruding on this theory with a big load of “so what happens when ………” questions. First of all though, some technicalities about DRs – the Act itself requires that after removal to a place of safety, the person is assessed by a ‘registered medical practitioner’. This means it as ultimately acceptable for any doctor to assess the person, whether they are the country’s most eminent psychiatrist or a newly qualified AND registered doctor working in an Accident and Emergency Department, for example. However, the Code of Practice to the Mental Health Act states that ‘wherever possible’ the Doctor should be section 12 approved, which means they have particular experience of treating patients with a mental disorder. If a section 12 DR is not used, the reasons for doing so, must be recorded. There are a few situations in which this conflict between the ideal of section 12 approval can push up against other doctors becoming involved in the assessment.
- Police custody – most police custody officers are going to call a Doctor wherever a patient states that they have mental health problems. It can be relevant to determining various issues, not least of which is that person’s fitness to be detained in custody. Some force medical examiners are section 12 qualified, but many are not. It is not a requirement of their role, because the police never need a s12 doctor for any purpose they are involved with. Statutory assessment for s136 or under the MHA for admission is a matter for the NHS. So where a s136 is taken to police custody – for whatever reason – there can be difficulties if the FME turns up and offers a view about the detainee’s supposed mental disorder. I recall the FME who suspected a head injury, stated he ruled out mental disorder and referred the bloke to A&E for further assessment of the injury.
- Accident & Emergency – obviously, some patients detained under s136 will require assessment in A&E first of all because of physical injuries, overdose fears or other medical problems. Doctors from A&E will often have contact with the patient before the s12 DR organised by the AMHP gets involved. Whilst A&E doctors (in my experience) will try as hard as they can to stay clear of decisions that surround the use of s136 and its outcome, there are some situations where the issues are too closely associated for them to remain outside that process. I recall the situation where officers thought someone had a mental health problem and detained them, only for paramedics to identify low blood sugar and remove them to A&E. Doctor there attributed the presentation of the patient to diabetes very quickly and ruled out mental disorder – so s136 ends.
- Inpatient admission – one further complication occurs after A&E where a patient is admitted. If physical injury or overdose means that someone is admitted to ward in the acute hospital, the section 136 is still continuing until one of those three things occurs. Inpatient wards in acute hospitals rarely have nursing staff who can keep someone detained, as would be the expectation in a mental health unit place of safety, and inpatient admission can be associated with admission that will last days, not just hours. Who remains responsible for the person whilst on that ward?! Many stories occur of officers remaining in hospitals for days with long delays in organising the s136 assessment.
- Ambulance handover – similar legal considerations apply where officers hope to hand a detained person directly to paramedics after arrest. I’m aware that this has been looked at, including in some areas where the ‘ambulance’ used to transport people from the point of detention under s136 is a specially commissioned service using a secure vehicle. The problem is, that the power of detention under s136(1) is specific to constables and nothing in the Act implies that can be handed over. The power of detetnion under s136(2) is the power that relates to other professionals, but it only kicks in once a person has arrived at a place of safety. For those reasons, I’ve never thought it would be lawful.
The most obvious implications of the first two issues, is that the non-s12 Doctors could get it wrong, not being specialists. Obviously, a head injury may exist comorbidly with a mental disorder, so our FME may have viewed something as either / or, when in fact the patient was injured and in distress. The same could have been true for our A&E doctor who leaned towards an assessment of diabetes – no reason why he couldn’t also have depression or another psychiatric condition. In the third situation, the obvious implication and concern for the police will be an expectation that they will remain for hours or even for days, pending the acute medical situation allowing for an AMHP / s12 DR assessment of mental disorder. On the one hand, the case of Webley reminds us that until the NHS are agreeing to take over responsibility for detention and conclusion of the process, the police continue to bear a duty; but on the other hand we have to be sensible about the ability of some patients to abscond. I recall a s136 detention where A&E staff artificially induced a coma in a patient exhibiting disturbed behaviour. Why would the police need to remain in hospital with a man who is unconscious?! … or with a man who can’t walk because of a broken ankle? Well, maybe the broken ankle patient is still willing to be violent towards staff, notwithstanding that he can’t run away?
All cases on their merits, by both police and NHS, surely?!
As with everything, each cases comes back to individual circumstances, discussion with partners and appreciation of each other’s position. There’s no obvious reason why a hospital should insist upon police remaining on an acute hospital when a patient is unconscious – let’s be sensible! Equally, police officers need to remember that A&E and acute hospitals are not set up and were never asked to be areas of legal detention for those subjected to the Mental Health Act. Where it may not be safe to walk away from a situation and in the absence of being able to negotiate a handover that is agreed as safe – a new requirement of the 2015 Code of Practice, in paragraph 16.34 – the police need to be aware that the law of negligence would find them wanting, if they did leave and harm came to the individual in predictable circumstances.
But whatever situation you’re wrestling with, it comes back to three things –
- Has a Doctor said, “This person is not mentally disordered within the meaning of the Mental Health Act”?
- Has an Approved Mental Health Professional made necessary arrangements for that persons treatment or care?
- Has 72hrs expired since their arrival at the first place of safety to which they were taken after detention?
If the answer to any of them is “Yes”, then s136 has legally ended; if the answer is “No”, then it is still running.
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