Reforming the Mental Health Act

A parliamentary bill containing proposals to amend the Mental Health Act 1983 has been introduced to the House of Commoons by the Home Secretary and will progress through Parliament in the coming months. Specifically of interest to me, this bill will seek to amend sections 135 and 136 of the Mental Health Act and the proposals seem more or less in line with the recommendations from the consultation document that was published in December 2014. You can trace the progress of the Bill on the UK Parliament website and the initial draft of the Bill is now available to read in full.

The main proposals are –

  • The scope of s136 will be widened – this will allow the power to be used anywhere ‘other than a dwelling’, thus bringing in to play private workplaces, railways lines and any other kind of private place.
  • Detention time will be reduced – from 72hrs in a Place of Safety to 24hrs overall, thus matching the maximum time for similar detention in Scotland. We may need to look north!
  • The ‘Place of Safety’ definition will be restricted – to prevent children (u18s) from being removed to police custody in any circumstances; and to prevent adults being removed to custody other than in ‘exceptional circumstances’.
  • The ‘Place of Safety’ definition will be expanded – there is mention of allowing other places to act as a Place of Safety. This proposal confuses me because s135(6) already allows for “anywhere that is temporarily willing” to act as a PoS under the Act.  Not sure what this new proposal means!
  • Introducing a consultation requirement – it is proposed that officers will be required to consult health professionals before instigating use of section 136 of the Act.

You can take your pick as to what you think this announcement means: it’s either a milestone which heralds a new era of crisis intervention by the emergency services which will mean that far fewer people detained under these powers are removed to custody and criminalised when they have not broken the law; or you could argue it’s a a final acceptance that we must force the NHS to ensure basic crisis provision for those in need because there will be no back-up plan. Or will there?! … we know that the words ‘police station’ were removed from the Scottish definition of a Place of Safety in section 300 the Mental Health (Care and Treatment)(Scotland) Act 2003 – but just see s297(5) for the Scottish ‘get into jail’ card. Looks like England / Wales are going for ‘exceptional circumstances’ instead!

I’m inclined to think these are actually not mutually exclusive positions and I’m not too greatly troubled whether NHS services do this willingly, as they have in Birmingham for more than five years and to great impact; OR whether CCGs which have historically ignored this in the hope it will go away are now dragged to the table and compelled to get their heads around it. I’m sure my mental health colleagues in Birmingham will attest that either way, they are going to learn that this stuff isn’t so problematic that it can’t be overcome with decent partnership working that will actually enhance relationships across the whole interface of policing and mental health.  Some areas of England achieved all of the above without the need for legislation and operate creatively – they must be wondering why other areas can’t.

WHAT WE NEED TO KNOW

To fully understand these proposals and their potential impact, we will need to know more details so this post won’t be long.  The obvious point is wonder what ‘exceptional circumstances’ will mean.  This is unaddressed at this stage and reference is made to Regulations being drawn up in the future. In the original consultation, it was defined as acceptable if a person’s behaviour  “is such that it cannot otherwise be safely contained.” That is the story behind most of the controversial, restraint-related deaths in police custody over the last quarter of a century so we will need to be careful if we’re defining police station PoS detentions based on resistant or aggressive presentation.

We know that resistant, aggressive behaviours can be caused by serious medical emergencies – recent examples include acute renal failure, meningitis and serotonin syndrome so before we exclude people to custody somewhat ‘exceptionally’ what clinical triage mechanisms will be there to support officers’ decisions so these things don’t get missed?

We will also need to know more about the availability of specialists to asses those who are detained, especially out of hours. I’ve often used the example under the current 72hrs law that if you are a 15yr old girl with a learning disability, detained at 6pm on Good Friday, your s136 detention will expire at 6pm on Easter Monday and during all of that time, many areas will be unable to resource that assessment using a CAMHS or Learning Disabilities specialist, as recommended by the Code of Practice to the MHA. Whilst that is a point of good practice, rather than a binding requirement, there are some areas where non-CAMHS or non-LD specialist s12 DRs will not assess children or known learning disabilities patients. So with a 24hrs detention timescale, such situation is a potential problem in some areas not just on Easter weekend but every weekend and that will need to be borne in mind.

NHS CAPACITY

Tomorrow will see publication of the report of the Commission on Acute Adult Psychiatric Care – we already know from the interim report last July that it will highlight significant problems in the availability of inpatient admissions beds even for adults.  CAMHS and LD beds have historically been even more difficult to find, as we have seen in high-profile news reports. Where an Approved Mental Health Professional decides to make an application for admission under the Act following the use of section 136, there will be a significantly reduced timescale in which to manage the process of finding a bed. In 24hrs, there may be a period spent in A&E receiving treatment for injuries; and / or a deliberate delay to allow sobriety to return to allow a meaningful assessment and that could easily take 6-12hrs. If 12-18hrs remains to find a bed, we know that will prove challenging unless CCGs see this amended legislation as a clear indicator to change how they commission services. It will also add weight to the importance of effective arrangements to manage the implications of section 140 MHA which I still maintain is massively ignored and misunderstood!

The thing that is not in the proposals that I know some were hoping to see address is a solution to the widely acknowledged problem of police responses to mental health crises on private premises. We know from street triage that most of these incidents occur in dwellings, not in public places and it remains true that police officers have no legal powers to intervene where somebody is in immediate need of care or control. This matter was considered in the 2014 consultation and no proposal is brought forward on this point. Sir Paul BERESFORD MP raised a Ten Minute Rule motion in the House of Commons in 2014 after his experience of shadowing two Metropolitan Police officers at an incident where they were powerless to deal with a situation of significant risk and unable to mobilise the professionals who were empowered to manage the situation. Unless someone brings forward a proposed amendment to the Bill during its parliamentary journey, officers will still find themselves in this position, from time to time.

Finally, we will need to understand more about this consultation requirement – I can’t be the only police officer in Britain whose experience of attempting to contact 24/7 crisis services is patchy because of their capacity problems. Some cities with 250,000 population and 2,500 of those open to mental health care services are known to have one or two mental health nurses on duty out of hours. We know that the reduction in CrisisTeam staffing levels is not fully made up even by the introduction of street triage schemes and that it will be necessary to think creatively about how such consultation is to be achieved at 5am. (For what it’s worth, I’d encourage areas to look at what Leicester do with street triage, liaison and diversion and psychiatric liaison services.) We also need to know what role of that health professional will be in the subsequent decision. What if the nurse suggests a course of action that the officer disagrees with – who ‘wins’?!

Like a few other things implied by the announcement, we’ll need to wait and see!


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7 thoughts on “Reforming the Mental Health Act

  1. Hi

    Just a question on the use of 136 and the power to detain in a place of safety if the detaining officers have left but a full mental health assessment has not been completed. If the person wishes to leave and say a support worker or qualified nurse is with them can they prevent them from leaving and if so under what legal basis? At this point they are not a patient as they have not been admitted to a hospital but are in a POS?

    Thanks

    Steve

    Steve Walls
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    1. No problem and the answer is a clear, yes – where someone has been removed to a Place of Safety by a police officer s136(2) MHA states that they may be detained there for up to 72hrs. This allows for the assessment to occur and for any necessary arrangements to be made for their treatment or care. Most legal commentators are of the view that this allows for any person who is a party to the operation of that Place of Safety to keep that person detained, including by keeping doors shut or by the use of reasonable force, subject to that overall risk assessment.

      Hope that helps – happy to go in to more, if you need it. Email contact form is on the front page of the BLOG. 👍🏼

  2. A point, if there is only a support worker or qualified nurse present how would they be held for 72hrs that section would need to be applied by an appropriate Dr, and if the individual was trying to leave the 136 suite The nurses holding power Sec 5(4) couldn’t be applied because they are not an in-patient. Where would this leave the staff if they were to attempt to use common law to hold them until a Dr appeared, and then the Dr felt they did not fit the criteria for detention, on dodgy ground i think.

    1. The s136 essentially lasts until a decision is made to detain under s2 or s3 or release. A police officer can probably word it much better! Until that process has been completed the person is legally detained and can be prevented from leaving under s136, no further holding power is needed (or indeed can be used). The practicalities of it if someone is determined to leave are the same as they would be on a ward, except I guess you can’t forcibly medicate??
      Many issues around s136 detentions would be far more easily resolved if assessments took place more quickly. A friend’s last 4 s136 detentions were 24 hours, 20 hours and 18 hours.

      1. Hi may concerns are not primarily in relation to holding until a Dr arrives to do the MHA assessment other then the concerns that are always present when holding someone against their will, but more in relation to the original poster Steve’s question re, that only a support worker or qualified nurse are present. In this situation when the Dr has assessed that the individual does not fit the criteria for admission / detention what then? you could be left with an individual who was brought to the POS obviously following being picked up by the police displaying worrying behaviors in a public place, then being told (after being held against their will ) ” you can go now “, the POS may be a distance from where they were picked up, so a) what about the possible legal aspects of the original behavior if they are not mentally unwell and were responsible for their actions prior to the 136 being applied. b) who then has a responsibility if the individual has been transported miles from home and they are unable to facilitate their own return, middle of night no funds (not the NHS). I hope non of this seems picky or anything this is a genuine query. The trust for whom i work has 3 136 suites across its sites all attached to mental health units containing a variety of specialist wards, we have good relationships with the police but part of our protocol is that Officers must remain with the individual in the 136 suite until the assessment takes place. The placement of the 136 suite allows assessment to take place fairly quickly, nursing staff are allocated to cover the suite if needed and even in the middle of the night with no Dr on site an assessment could begin within 90 min. I appreciate we are probably lucky to have this, it is just strange to think of staff being left to hold someone who may be deemed OK to go following assessment and be left to pick up the pieces.

      2. If assessment concludes no mental disorder at all, the nothing prevents the NHS PoS recontacting the police to inform them of the outcome and allow them to make a decision about what happens next – they could immediately re-attend and arrest, if appropriate; or they could just decide to follow up the person in the next day or so.

        In terms of returning the person to their home or the place from which they were detained – the Code of Practice makes it clear that the local arrangement should include this contingency and it should be made clear in the local protocol. This is a point of debate that often emerges between police / NHS because the Code is not, strictly speaking, legally binding on either of them and it doesn’t actually specify who should do it. Therefore, each organisation could argue the responsibility lies with the other but in reality, it’s best done as a shared responsibility. Although most people detained under s136 are not subsequently ‘sectioned’, in many areas it is true that most of them are assessed as having some kind of mental disorder. So for me, if the police are still involved in the assessment at the end, they should do it; if they are not, the NHS should sort it. Then we can agree it’s a division of liability on an issue where no-one has a winning argument about who should do it.

  3. Hi. Do you think the liaison and diversion schemes being piloted and promised for roll out by NHS England will have a positive or negative impact on policing and dealing with MH problems?
    I suspect that CCGs and MH Trusts may use this as a way to continue to avoid funding 136 suites.

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