When does the ‘clock’ start ticking, after someone is detained under s136 or s135(1) of the Mental Health Act? Straight-forward enough type of question: under the Police and Criminal Evidence Act 1984, the ‘relevant time’ is subject to considerable explanation, for the avoidance of any doubt. When you are arrested for an offence the police may detain you for 24hrs before deciding whether to charge you or not and this is calculated as 24hrs after you arrive at the first police station you are taken in the force where the offence is under investigation; or 24hrs after your arrest, whichever is sooner.
What about s136 and s135(1) MHA? – nobody seems to know!
This hasn’t massively mattered in the past, because each of these two provisions allows for someone to be detained for up to 72hrs in order to ensure they are assessed by a DR and an AMHP and for the making of any arrangements for that person’s treatment or care. It is rare, although not unknown, for someone to spend as much as 72hrs in a Place of Safety for these purposes. But in (roughly) April of next year, the Policing and Crime Bill will have become an Act of Parliament and this 72hr figure will be changed to 24hrs. There will be just 24hrs to arrange an assessment by an AMHP and a DR and to then arrange for inpatient admission in many of those cases.
Over the last years and decades we’ve seen the number of inpatient psychiatric beds in England and Wales diminish significantly during a time when the overall number of detentions under the MHA has been rising significantly. Recent figures from NHS Digital outline for the first time, the number of MHA admissions has exceeded 60,000 – I remember only three years ago, when massive concern was voiced the figure had initially exceeded 50,000! So whilst MH services are somehow having to figure out how to fit ever more admissions in to ever fewer beds, the use of s136 is rising significantly: to over 28,000 this year, compared to around 18,000 a decade ago. We also know it can be difficult to find inpatient beds in a timely way – especially specialist beds for children, those requiring intensive care or secure services. This will only get more difficult if there is less time, legally speaking, in which to find them.
So this issue of the ‘clock’ becomes important, because we need to know exactly how restricted we are, if someone needs admission after being detained by the police under the Mental Health Act.
THE PoS ‘CLOCK’
It’s fairly easy to work out when the 72hrs begins if someone is taken to a mental health unit Place of Safety or a police station – it is calculated from the time of arrival, because s136(2) MHA makes it clear “they may be detained there for up to 72hrs”. It usually gets confusing when Emergency Departments become involved and this is made manifest in the two views expressed in the English and Welsh Codes of Practice to the Mental Health Act 1983. Because Wales has devolved political responsibility for health matters to the Welsh Assembly Government, they issue their own Code of Practice for Wales and separate Codes were first issued in 2008. The English updated theirs in 2015 and a new Code for Wales was published in October 2016. From a policing point of view, the most recent Codes simplified things for policing as there are now far more similarities between the two documents than there were after the 2008 updates.
However, on this point of the ‘clock’, they appear to just flatly contradict each other! In the English Code of Practice (2015), it states (in paragraph 16.26) –
“The maximum period a person may be detained under section 136 is 72 hours. In practice, detentions should not need to be this long. The imposition of consecutive periods of detention under section 136 is unlawful. The maximum 72-hour period begins at the time of arrival at the first place of safety (including if the person needs to be transferred between places of safety).”
In the Code of Practice for Wales (2016) it states (in paragraph 16.46) –
“If, in exceptional circumstances, a police officer needs to take a person to an emergency department after detaining that person under section 136, for the emergency medical assessment or treatment of their physical health this should not be treated as an admission to a place of safety. Detention under section 136 will begin when the person is taken to the appropriate place of safety for the assessment of their mental health.”
There are various things to get picky about and I usually find it can be helpful to get picky. You may already be thinking that my bold emphasis in the Welsh Code is wrong: detention begins when someone gets detained! – you can’t have a situation where you are detained in a street but are somehow not yet detained, until the detention you have experienced takes you to a particular mental health unit, via an ED department. I’ve deliberately complicated that explanation to highlight how ridiculous it is – detention is not a legal phrase in this context, it is just a word that has an ordinary English (or Welsh!) meaning. You can either walk away from that officer, or you can’t because they’ve detained you; and none of this is relevant to the ‘clock’, because s136(2) makes it obvious that the time from detention to arrival at a PoS is not counted.
If you still want to be picky, you’ll may ask yourself, “Is ED a Place of Safety?” … the English Code is saying that the ‘clock’ begins when the person arrives at a PoS … so is ED a PoS; or not?! Well, there are a few arguments about that, too – the police power, once used, is to remove someone to a PoS and s135(6) defines hospitals as a Place of Safety under the Act. It makes no distinction between EDs and other kinds of hospital, it makes no reference to that status as a PoS being subject to any designation or to any agreement on the part of the hospital. By way of analogy, only certain police stations would be used as a PoS, usually those designated for receiving detainees and holding them for 24hrs (or more in certain circumstances). But if a rural officer did remove someone to a local police station and use the front office interview room as a temporary place to hold someone, they have been removed to a police station, which is also in s135(6), so s136(2) kicks in, arguably.
THE LAW IS THE LAW
Of course, one point broader legal point is: it’s not for Codes of Practice to define the law itself, that is already done in the Act of Parliament. As one notable mental health lawyer once said to me, “Nothing in a Code of Practice will make lawful something that is unlawful under the Act – and vice versa,” So a Code of Practice can say what it likes: it won’t alter the law of England or Wales if the Act makes the point clear.
So what does the Mental Health Act 1983 actually say?! –
It says that police officers who are satisfied the criteria are met in s136(1) may detain the person “and remove them to a Place of Safety”. In s136(2) it makes it clear that where somebody has been removed to a PoS, “they may be detained there for up to 72hrs” etc.; this will reduce to 24hrs next year. Place of Safety is defined in s135(6) and includes “hospital” in the definition and most importantly: it is often the case that when someone enters the ED department, no-one can say with any confidence whatsoever whether that person will leave ED during the time that s136 remains in play. If we cannot be certain what function the ED will play, how can we confidently say at the point of arrival that it is only acting as a place to receive assessment or treatment of their physical health. What if the patient being detained there lacks the capacity to take decisions about their physical healthcare treatment and what if those problems are associated with mental health problems to the extent that treatment could be given under the MHA?
I can think of at least a few scenarios –
- A person is thought by officers to have a mental disorder, is detained under s136 but paramedics advise that something else appears to be wrong and assessment in ED is required. If assessment requires a more prolonged stay in ED or even admission to the acute hospital, what does this mean for the ‘clock’? – examples have included patients who turned out to have meningitis, brain tumours or patients who attempted to overdose where it took 12hrs or more to run blood test and ensure treatment.
- Someone was removed to ED under s136 but the legal process concluded before they were able to leave that hospital; or the 72hrs even ran out! – this has been known to happen with overdose cases where assessment and treatment can lead to admission lasting several days.
- There are problems with accessing any other kind of PoS after initial removal to ED – sometimes, MH unit PoS facilities are full at the point where you might hope to transfer the person and occasionally, police custody sergeants may decline to accept a s136 transfer from hospital; and they are legally quite entitled to do so. It may simply not be possible to move the person.
What the Welsh Code of Practice seems to be saying, is that someone who is detained by the police in Cardiff, having taken an overdose, can be taken to ED and spend 24hrs or more detained against their will whilst doctors assess their condition and offer treatment, only then to be taken to a health-based Place of Safety where a further three-day detention period can be relied upon. It means, in theory, the overall maximum period of detention is limitless because no amount of time in ED for physical care counts. Do we presume four days of detention would be OK? … or five, or six?!
YOU CAN’T BOTH BE RIGHT
Of course the most obvious point is, these two things can’t both be right, unless you accept the argument that ED departments, despite being ‘hospitals’ and despite no-one being certain about how and to what extent ED will be used in any given situation, can divorce itself from the notion that it can act as a Place of Safety under the Mental Health Act and that in most areas it occasionally will need to do so. The English Code gives one answer; the Welsh Code gives another – the answer is actually in s136(2) itself, which makes it clear that the time commences when someone arrives at the Place of Safety they are taken to. Hospitals are a PoS under the Act and no-one can truly know what will happen to any particular patient’s journey at the point where they first arrive at an ED.
Finally, there’s the practical point that if you adhere to the viewpoint given in the English Code, you are never going to found wanting, legally speaking. If you follow the advice in the Welsh Code, you could end up finding it difficult to defend a detention that exceeded the maximum time permitted. It’s all the more likely the maximum will be exceeded after April of next year as AMHPs struggle to secure beds for admissions after use of s136. (Not connected to my main point: but there will be provision to extend the new 24hrs maximum up to 36hrs in some circumstances, but it still represents a halving of the available time!)
I’m guessing and hoping the Department of Health and Welsh Assembly Government will be issuing new Codes of Practice in 2017, less than a year or two after having updating the 2008 editions – the Policing and Crime Act 2017, as I suspect it will be called, will change several aspects of the police’s powers under the MHA. It would be great if they could clear this up for us all so we actually know what the law is and what is expected of us when we subject the public to the operation of these powers!
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