Para 16.16 to the Code of Practice

It turns out I didn’t read the new (2015) Code of Practice to the Mental Health Act 1983 as closely as I thought I had! The @LovelyClaireyA from Twitter said something recently about the execution of warrants under section 135(1) that didn’t sound right to me and I was grateful to learn something new after she pointed me to the Code of Practice – paragraph 16.16. This paragraph has no equivalent in the preceding Code, hence it gives rise to a few new questions; and so having made a mental note to consider this a topic for the future, I got on with my weekend. Within 36hrs of speaking to Claire, I received an email from a police control room inspector seeking clarification on the execution of s135(1) warrants after an operational incident in his force area. The job had caused a disagreement with the AMHP who was accompanying the officers in executing the warrant and I therefore thought I’d prioritise getting this done, since my general rule is that two or more things new to me in the same week means it’s probably occurring a lot more frequently and worth covering.

It all surrounds the question of conveyance from an address where a s135(1) warrant has been executed, in order to remove someone to a Place of Safety (PoS) for assessment under the Act or for arrangements to be made for that person’s treatment or care. The warrant, which can only be executed by the police, contains two legal powers: one to force entry to the premises, if need be; the other to remove that person to the PoS, if thought fit. Once inside the premises, the Code requires the AMHP and Doctor to consider (para 16.8) whether any assessment can occur there with the consent of the patient or whether removal is necessary. Historically, removal to the PoS has been best done in a non-police vehicle wherever possible and practicable; but police officers would normally remain involved until arrival at the PoS by physically accompanying the patient in the ambulance, or in whichever vehicle is used if no ambulance is available.

So what does this new paragraph in the Code actually say? –

“When taking the person to a place of safety on a section 135 warrant, the AMHP, hospital managers or the local authority (as appropriate) should ensure that an ambulance or other transport is available to take the person to the place of safety or to the place where they ought to be, in accordance with a locally agreed policy on the transport of patients under the Act (see chapter 17). It may be helpful for the AMHP to escort the person or meet them on arrival at the place of safety, in order to ensure continuity of care and to provide information for the hand-over. The police should not normally be needed to transport the person or to escort them for a section 135 warrant.”

GETTING PRACTICAL

This is saying – if Claire and I have read it correctly! – that upon entry to the building and following any decision to remove the person to a PoS, the police “should not normally be needed to transport or escort them” [my emphasis]. So, the AMHP (and paramedics) can lawfully do this, according to the new Code. Presumably, this also amounts to a legal process whereby, the AMHP and others could use reasonable force, consistent with keeping themselves safe, if the need arose during conveyance. I can hear the objections already and I understand them! – but this will come down to a distinction between what the law and the Code say (the law and the Code, not being the same thing!) and the reality of AMHPing and paramedicine, and their professional views about what they should be contributing to these situations.

I will come back to this question: if the MHA allows restriction of people made subject to the Act by professionals other than police officers, in what circumstances do professionals other than police officers use this powers, other than in situations which occur involving detained patients on hospital wards?

  • Meanwhile, in reality  – there is nothing unusual about discussions about what role the police should play in administering the implications of Mental Health Act when it comes to conveyance or restriction upon those who are subject to it. If an AMHP had conducted an assessment in the house and ‘sectioned’ the person, there is a common debate about how to convey the person under s6 MHA to hospital. The same rules apply: it should not normally be done in a police vehicle and, in reality, the AMHP should be able to arrange an ambulance but the police still find they are all too often connected to admission conveyance because no ambulance is available or because someone is resistant to admission. Remember: the Code of Practice does NOT demand police involvement purely because someone is resistant. Only where they are ‘violent or dangerous’. This situation is little different, in many respects.
  • Drafting of the Code – having thrown this topic about on social medica after discussion with Claire, some suggested there is confusion and contradiction in the drafting of the Code itself. Paragraph 16.3 informs us what the purpose of the s135(1) warrant actually is: it is to provide “police officers with a power of entry to private premises, for the purposes of removing the person to a place of safety for a mental health assessment or for other arrangements to be made for their treatment or care.” So if the legal power belongs to a police officer, can someone else discharge it if the police also disengage from the process? Some think not; however there are other, similar examples available where others have acted on behalf of a police officer, even though they’ve disengaged (see below).  If you look at paragraph 16.14 of the Code, it also creates a touch of confusion about who should be doing what, in this context.

WIDER IMPLICATIONS

So if something is ‘not normal’, in terms of frequency, what does that mean?! We can surely start by agreeing it probably means, ‘not most of the time’? Could we go even further and agree it should happen on a minority of occasions, perhaps only where certain criteria are met? The overall idea from Chapter 17 of the Code (which covers conveyance) is the police should be involved in the conveyance of a person only where they are ‘violent or dangerous’. This is where my inspector colleague on email found that he had done what the Code suggests only to bump up against an AMHP who would have preferred the Code be disregarded in the circumstances. Having entered the building and a decision having been taken to remove the person to the PoS, the police withdrew from the incident and suggested the AMHP should make the necessary arrangements to convey the person.

So that brings us back to what a Code of Practice actually is – I remarked many years ago that we all too often see the Code as some kind of vital document that cannot be breached. Yet when it is convenient to argue so; it is something that is quickly set aside – many examples are available to highlight the contradiction this represents and this situation is just another example of the latter. Conveyance of resistant individuals all too often involves the police where they are neither violent nor dangerous because, quite simply, there is no other arrangement by which to do so. No planning takes place (that I am aware of) to ensure that AMHPs can call upon the necessary, non-police support in these situations. There are still long delays for ambulances; there are usually no other conveyance mechanisms and there are certainly no other staff who could assist in supporting a resistant, frightened patient without potentially terrifying them by calling the police. Why? – do commissioners and managers not ask themselves “If the Act or Code says this, what does that mean in the real world and how would we actually get it done?”

This kind of discussion emerged in Hampshire a year or so back when the MH Trust and the police commissioned a service to ensure that officers who had used s136 of the Mental Health Act could handover the care of someone at the point of arrest –  whilst still in the street – to trained staff who would then remove the person to the Place of Safety (on behalf of the Chief Constable) and remain there (on behalf of the MH Trust) to ensure the wellbeing of the person pending assessment. Then, as now, some questioned whether or not the first part of this would be lawful given the same argument: it is a police power to remove the person to the PoS, so can it be delegated where the Act itself does not explicitly say so? Well, there are various other situations in which police powers are delegated to others, so why not s136 MHA? – why not s135(1) MHA, especially as the Code seems to be encouraging it. The relevant services in Hampshire are certainly satisfied, on legal advice, that it can.

Let me conclude with this remark: I didn’t write the Code and as far as I’m aware, the police didn’t offer a contribution in the consultation for the Code that something like this paragraph be included! Nevertheless, it seems we now need to start talking about it because the Munjaz case (2005) reminds us that we should only be breaching the Code of Practice if there are “cogent reasons for departure”. The poor AMHP in my colleague’s situation probably thought, “How on earth do I get this done, if the police don’t or won’t help?!” That probably amounts to a cogent reason for them as an individual professional but back everything comes to strategic planning and joint operating protocols: has every area updated their local protocols on MHA assessments in private premises and / or conveyance since 2015 to specify how this stuff gets done along with commissioning managers making the necessary policy changes to ensure that AMHPs aren’t in that position in the first place? … and if not, why not?!


IMG_0053IMG_0052Winner of the President’sMedal from the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award


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8 thoughts on “Para 16.16 to the Code of Practice

  1. Thanks for another informative read! The phrase ‘in accordance with locally agreed procedures’ features a lot in the MH legislation. Would you know who or which bodies are involved in establishing such procedures?

  2. I’ve thought about this paragraph of CoP advice long and hard I don’t think it’s lawful.
    It’s clear that s6 allows for delegation for conveying to just about anyone following an application for admission (ie s2, s3,s4).
    s137 (2) talks about “A constable or any other person required or authorised by or by virtue of this Act to take any person into custody” but this clearly refers specifically to s135(2) (someone authorised by the hospital managers bringing back an AWOL person) and not s135(1) or s136.

    S136(3) and s135(3A) allow for delegation to transfer a person **only** once they already been taken to the first place of safety, not from the public place/ home:

    “s135(3A) A constable, an approved mental health professional or a person authorised by either of them for the purposes of this subsection may, before the end of the period of 72 hours mentioned in subsection (3) above, take a person detained in a place of safety under that subsection to one or more other places of safety”

    “s136(3) A constable, an approved mental health professional or a person authorised by either of them for the purposes of this subsection may, before the end of the period of 72 hours mentioned in subsection (2) above, take a person detained in a place of safety under that subsection to one or more other places of safety.”

    My position would be that if a s135(1) is used and then an application is made the police might be able to justify walking away and leaving that person in the legal custody of the AMHP.
    Where the decision is to remove to the place of safety the police can only transfer legal custody once the person is accepted at the place of safety.
    I would also argue that until assessors have made a decision about how to proceed, that power to remove is needed and rests with the police and they would need to remain until the assessment is satisfactorily concluded.

    The cogent reason for not doing following the code (Munjaz case 2005)in this case would therefore be because it bears no relation to the law.

    1. Do you refer to S136 MHA in regards to the paragraph which begins, Where the decision is to remove to the place of safety the police can only transfer legal custody once the person is accepted at the place of safety?

  3. Sorry to come to this so late- it’s only just been drawn to my attention by an AMHP. I give training to AMHPs and others on mental health law. Very interesting discussion. I think the CoP guidance at 16.16 is very misleading. As we know, only a police officer has the legal power to remove a person to a place of safety under a s.135(1) warrant- an AMHP cannot do so on his/her own- whatever the Code may imply to the contrary. As Matthew says above, there is no express power to delegate the removal, though Lady Hale has said that it’s probably implicitly OK (as you say, by analogy with other police powers). However, no-one is obliged to accept delegation (as the new police Authorised Professional Practice confirms, in the context of delegating of the s.6 power to convey to hospital post-sectioning). Moreover, even if an AMHP does accept delegated authority from the police officer, it’s a fundamental legal principle that he or she cannot re-delegate it to e.g. ambulance staff. So unless the AMHP agrees actually to accompany the person to the place of safety, the police officer would have to delegate direct to the ambulance crew, not leave it to the AMHP to sort out. Finally, even if the conveying power is delegated, I think the police officer probably retains accountability for the person not arriving at the place of safety, in the same way as the AMHP does when someone under section is being conveyed to hospital under a s.6 delegation. So I think who does what needs to be negotiated by agreement, either under a specific locally-agreed policy or at the time when it arises, rather than an assumption being made (as the Code seems to suggest) that the AMHP will deal with the removal to the PoS and the police are free to leave once the warrant has been executed.

    1. All interesting but there can’t be true agreement about who does what and what may be best when, in reality, most organisations see it as a police responsibility to coerce under the Act outside of hospital and this view prevails regardless of what the MHA, HRA or HSA say to the contrary!

      There is no express power to delegate or subcontract a host of coercive legal powers in the MHA and other Acts which we know can be delegated. The absence of a specific delegation power isn’t a barrier to what the Code is getting at. We already know that at least one police service delegates its power under s136 once enacted to convey to a PoS and birth the police and trust have agreed to this approach after legal advice.

  4. Thank you again for highlighting issues of process, commissioning and administration of MHA, not to mention a lack of clarity for those trying to keep up-to-date with the law.Just to make a possibly awkward point. Do all your readers or many MH prof understand the legal term/implications of the word “constable” in this debate? Cos it doesn’t mean warranted police officer 7 sadly I know many long-standing & experienced MH profs who often misunderstand this wording & role.

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