The new Code of Practice (2015) to the Mental Health Act 1983 introduced a few new features, as well as re-arranging various important aspects from the old code (2008) under new paragraph references. This means we’ve all had to start unlearning the old reference numbers to golden nuggets of information that help win disputes about roles and responsibilities and get the new numbers memorised. I admit, I’ve been shouting the old numbers for so long that I’m rather behind in my progress! I summarised the new Code and listed some of these important references – old and new – for your greater convenience. The present piece is the first of a few about the entirely new parts to the Code and we’ll start off with the subject of MHA holding powers –
I’m certainly not the only police officer in the country who has been invited by NHS staff into NHS settings to implement the use of section 136 of the Mental Health Act. In fact, when it happened to me it was rather just expected that I would do it because NHS staff had asked for it – that always made me smile. As if a nurse would just administer mediation or treatment because I asked them to … they’d expect the courtesy of being allowed to form their own view as to the necessity and appropriateness of it, quite obviously! I digress: the point here is that officers have often wondered about applying their legal powers in situations where healthcare professionals may well have their own available and indeed, a legal duty of care to discharge. Why rely upon the police? – when is it appropriate, if ever?
Very obviously, healthcare environments vary enormously and what may be reasonable to expect in a secure psychiatric unit may not be reasonable in a maternity or intensive care unit. Indeed, police officers have been known to make errors about where certain legal powers can apply – believing in some instances that section 5 MHA powers apply in Accident & Emergency Departments. They absolutely don’t.
So this new paragraph now reminds us –
“The police should not be called to a hospital ward to use their section 136 powers. If the person is already an in-patient in hospital, a nurse, doctor or approved clinician should instead use their holding powers under section 5 if it is considered necessary to detain the person (see chapter 18). It may be appropriate for the police to attend a hospital if the person is in the grounds, or another public part of the hospital, such as a part of the accident and emergency department to which the public have access, in which case they may use section 136.”
It has been known that wards would ask for police officers to exercise emergency detentions on inpatient wards, often because it provides a way of then asking the officers to remain and prevent absconding. In one example, a person arrested for a minor offence became ill in police custody and was transferred to A&E before admission to a ward. The police knew exactly who the person was, where they lived and the offence was not so serious as to require the police to secure the person during medical treatment so it was being proposed to bail the person for investigation at a later date. The hospital staff asked the officers to then detain the person under s136 because they had reason to suspect the person would abscond and that they were in need of detention under the Act. Officers refused to implement their detention power, rightly arguing that it was not ‘necessary’ (for the purposes of s136) because hospital staff had a full suite of powers available to them under the MHA to handle the situation. It caused considerable disquiet and the involvement of managers on both sides.
This BLOG post was motivated by a former police officer who now works in NHS security asking a view on a situation: an elderly patient on a medical ward for medical treatment also presented with probelms in cognitive functioning of one kind or another and staff formed the view that an assessment for detention under the MHA should be done. Before this could be organised, the patient became distressed and agitated, attempted to leave the ward. The duty doctor decided to implement a holding power under s5(2) MHA and nurses attempted to keep the patient on the ward, but failed to manage the resistance offered. Hospital security were alerted who intercepted the patient at the main hospital door but after confirming that hte duty doctor had not yet completed the statutory form which accompanies the use of this holding power, allowed the patient to leave.
Sounds outrageous doesn’t it? – security deliberately allowing a vulnerable person to leave hospital unescorted?! I admit that’s what I thought and I sought validation for this instinct via a legal forum only to be quickly skooled by the AMHPs! Section 5(2) doesn’t take effect when the Doctor says they are doing it; it kicks in when the relevant report to the hospital manager has been ‘furnished’ by being handed to a relevant person or placed in the internal mail system. Sounded highly unlikely to me but once I read the legal section for myself it was very obviously correct, however counter-intuitive it may sound to some.
So at the point where the person in our scenario suddenly tries to leave but it is believed that an application under the Mental Health Act may be required, how can they be held, pending the DR’s decision and / or the associated paperwork, which I’m informed takes only a few minutes?! You are back to other legal powers that we’ve discussed before: things like the Mental Capacity Act 2005, etc.. So we’re into quite precise territory here: details of mental health law that it may not be reasonable for police officers or security staff to know. It may well be the case that consumed in good faith by an instinct to keep people safe and ‘do the right thing’, that some decide to ensure the person remains safe by holding them, confident that the doctor is furiously writing that report and happy to rely upon section 139 of the Mental Health Act to keep them out of court.
In this latter scenario, the police found the person nearby and used section 136, removing the patient back to the ward for assessment. Can you hear a noise? – it could be the sound of acute hospital managers fainting that they acted as a Place of Safety! You can almost hear the chorus reaching it’s climactic refrain – “But we’re not a Place of Safety: we’re not designated!” Of course, keen legal eagles amongst you will already be aware that anywhere can legally act as a Place of Safety and that a vulnerable person with particular medical problems requiring inpatient care is obviously going to have to go back to the ward or to an A&E department – where else would you take them?! As long as the ward or A&E department agrees to receive them, they are then acting as a Place of Safety.
The main point here is to emphasise to those who may be involved: where the legal detention of inpatients is required and where that patient is on a ward, section 5 holding powers should be used and the police should not be relied upon to effect their emergency detention power. Accident & Emergency is a different environment and s136 can be relied upon there, where the grounds are met. It may be necessary, on some occasions.
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