This short post covers the main admission frameworks of the Mental Health Act 1983, in limited detail for the benefit of police officers and the public. Advance notice is hereby given(!) that AMHPs or psychiatrists will find this superficial. The purpose here is to make two wider points for police officers, after briefly reminding or explaining what these principal provisions actually mean.
As with any other aspect of healthcare, any person can go in to hospital if it is suggested to be necessary and if they wish to do so. You can decline that offer if you have the capacity to do so. Although it may appear unnecessary to have a legal provision for admission that does not require compulsion or restriction of liberty, section 131 of the Mental Health Act covers this point and makes it explicit.
When I first joined the police, mental health services used to distinguish between ‘voluntary admission’ and ‘informal admission’ and to make a distinction between patients with the capacity to do so consenting to their own admission and those without that capacity who were merely not objecting. This distinction has ceased to have relevance since the Mental Capacity Act 2005. The new Code of Practice (2015) highlights that where patient under assessment lacks capacity to make decisions, or where their capacity is fluctuating, they should be detained under the Mental Health Act 1983 if they are to be admitted to hospital.
I’m going to make a point at the end of this post, about how this kind of principle should be considered by police officers when considering the application of s136 MHA.
There are three main provisions that lead to people being detained against their will under the Act. I can think of various situations where officers may benefit from knowing the difference, so as to understand how their own decisions may fit in to these frameworks, especially those where allegations of crime have been made –
- Section 2 – detention in hospital under this section must be authorised by an AMHP and two Doctors, one of which must be ‘section 12’ approved. Detention allows for assessment of mental disorder, lasts for up to 28 days and cannot be extended. Patients detained under this provision have a right to appeal to a mental health tribunal, which is a part of HM Courts’ Service.
- Section 3 – detention in hospital must also be approved by an AMHP and two Doctors, one of them being ‘section 12’ approved. This type of detention allows for treatment of mental disorder, can last for up to six months and can be extended. The first extention lasts six months; subsequent extensions last for twelve months and there is no overall maximum period.Patients detained under this provision have a right to appeal to a mental health tribunal, which is a part of HM Courts’ Service.
- Section 4 – this is an emergency admission provision, requiring just one Doctor to support the AMHPs application. It can only be used where it is not practicable to wait for a second Doctor, lasts only for 72hrs and the patient has no right to appeal to a tribunal. Within the 72hrs, a decision must be made about a second medical recommendation for any further detention.
For those who are interested in the detail of this stuff, there seems to be an almost constant debate amongst AMHPs about whether it is ever right to use section 3 to admit a patient to hospital from the community. Where a patient is known to services and their diagnosis is clear from previous contacts, some argue there is no obvious reasons why a section 3 application can’t be made, for example, after a MHA assessment in somone’s own home. However, I had a really difficult experience as a custody sergeant that shows why attempting section 3 admission can prove problematic. It is at least partly for reasons such as these, other AMHPs argue initial admission to hospital, even for patients who are known, should be via section 2 of the Act.
A particular feature of section 3 MHA, is that a patient’s Nearest Relative (NR) can legally object to admission. Unless the AMHP displaces the NR after a successful application in the county court, the NR’s objection stands – and this displacement under section 25 MHA can only occur if the AMHP can show that an NR is acting unreasonably. In my case, a man had been arrested for an alleged robbery and he was very obviously unwell. The MHA assessment in custody led to a decision to admit him under s3 MHA and his NR objected – and that was the end of that! … I was stood there asking, “What do you mean ‘we’ll leave it with you, Sarge!’ … he objects and that’s that?!”
And it turns out it was – unless the NR is being unreasonable and in this case, the AMHP wasn’t prepared to argue that he was, no MHA application can be made and the AMHP cannot then start arguing for a section 2 application. So we prosecuted him for robbery and he was remanded to prison by the courts, because that suddenly became the only legal way by which to prevent harm to him or to others. We unnecessarily criminalised him – which happens more than it should, for various reasons, including this one.
I have only one other example of NR objection in my eighteen years of policing: it interesting for different reasons and it occured when I was a duty inspector. I started duty at 10pm to find a women in custody under s136 MHA who had been detained that afternoon but spent a few hours in A&E having various physical healthcare problems attended to. No AMHP seen her in A&E, in fact there was no evidence of an AMHP having been contacted at all, so when I started duty I rang the night duty AMHP and was told, that an earlier AMHP had been aware of her detention and he said, “The NR objects so the AMHP is going to court tomorrow to displace them and you have to hold her until then.”
I was intrigued to know why an as-yet un-named AMHP had decided to attempt to legally displace a Nearest Relative who could have yet objected to admission because the s136 assessment had not yet occured, never mind a full MHA assessment. (For those who don’t know the difference, assessment under s136 requires just one doctor in addition to the AMHP; full MHA assessment requires two.) I wondered whether the answer of the court would not just be, “Come back when you have an assessment conclusion and an objection to that assessment conclusion – you’re presuming and guessing, at this stage.” So I rang the duty AMHP to query this and was told they weren’t coming out and that I obviously didn’t understand the process.
Can you guess what happened at court?! … I guess you can’t qualify in common sense.
So there are three basic methods by which, under civil law and without the involvement of the criminal courts, you can find yourself detained in hospital against your will. That is unless you have the capacity to make your own decisions and take up a voluntary admission, were it to be offered to you. But why am I arguing that officers might need to know these three things, bearing in mind you will find section 4 MHA used very rarely indeed – so it’s mainly down to the two normal provisions of section 2 and section 3.
Remember what they actually mean, in law –
- Section 2 – means detained for assessment of a mental disorder.
- Section 3 – means detained for treatment of that condition.
Imagine a scenario with two alternative endings –
A young person is reported to be on the adverse side of a motorway bridge and appears to be about to jump. Motorway police officers make towards, their control room starts affecting traffic signs to get traffic to slow down and eventually, the motorway is closed in both directions. Meanwhile, local officers have made towards, the duty sergeant is on the bridge with an officer and they are talking to the person, the duty inspector is overseeing and gets a negotiator on standby to turn-out. They can’t find out the person’s name, form the view the person has been drinking and may have mental health issues because of the language they are using about hurting themselves and instructions they claim to be acting on.
It takes over two hours and the turnout of a negotiator to talk the person down and they are detained under s136 MHA. Calls to the police during the road closure make it obvious that there was at least some public frustration at the degree of inconvenience caused, one man claiming to have missed a job interview and another upset that his visit to a very ill close relative in hospital is delayed. The man was under the influence of alcohol, but because of concerns of his mental health, he is detained section 136 MHA. He is taken to police custody because nowhere else was available and when searched he is in possession of a something illegal – you can make your hypothetical incident involve drugs or weapons, as your prefer. He sobers up overnight and is seen by an AMHP and DR the next morning and they subsequently arrange for him to be ‘sectioned’ under the MHA.
Now, bearing in mind that bringing a motorway to such a halt is a criminal offence if you put yourself on or over a road (s22A Road Traffic Act 1988), that it’s probably cost the UK economy about two million pounds whilst the closure was in place and that some members of the public have been put out and distressed by the actions, do the following two outcomes change how we see the incident?
- What if he was sectioned under s3 MHA because of a long-standing history of schizophrenia and previous inpatient admissions to hospital – upon examining his background, he has never done something like this before, has no history of using drugs or weapons for violence: it’s thought he is extremely unwell after the recent and sudden death of his only surviving parent.
- What if he was sectioned under s2 MHA and it transpired three days later that he had no mental health issues whatsoever and had become somewhat disturbed in his cognitive functioning because he had consumed lawfully obtainable drugs as well as street drugs and then alcohol, creating a chemical cocktail that induced a temporary mental-illness like state than even convinced psychiatrist then next day?
Bearing in mind the original incident: do these outcomes make us reflect differently on the original incident and what the police should do? I would hope so! – there is no reason whatsoever why our second individual shouldn’t be considered for prosecution, bearing in mind the various offences involved in that incident. But would any of us argue for that outcome in the first case?
So someone being ‘sectioned’ in police custody doesn’t actually tell us very much, does it?! … and most people ‘sectioned’ from the police station are detained under section 2 of the Act. How often do we bail anyone if they were originally arrested for an offence in order to follow them up in case they were like our second case, above?
SECTION 136 AFTER-THOUGHT
And you’ll remember I said these considerations around capacity could also be relevant to effective and correct use of section 136 MHA?
Officers are being encouraged at the moment to consider various actions which have the overall intention of reducing the use of this power to detain someone. It is probably wise to consider the question of capacity wherever thought is being given to offering a ‘voluntary’ alternative. Most of us will have experience of encountering a person, either in public or in private, and finding that when officers offer either a referral via Accident & Emergency or more recently, via street triage schemes, that the person agrees.
Do they have the capacity to do so? – did we event explain the information relevant to that decision?! Offering A&E is one thing – what about A&E, knowing that the average turn around time may be 4hrs; or 8hrs?! What about explaining the civil liberties things – like whether officers will be remaining there with them, to ensure they don’t leave? If you are planning to go to A&E on a ‘voluntary’ basis and to remain there with the person to ensure they don’t leave; haven’t you effectively employed s136, especially if it relates to a person who very obviously lacks capacity around their decision-making? … all just food for thought.
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