This blog is part of the series which will cover, in detail, the amendments to the Mental Health Act 1983 within the Policing and Crime Act 2017.
For background to the series, see the introductory post which outlines why I’m doing this and what other specific issues will be covered concerning laws that will come in to effect in the next few months. Current Home Office estimations of timescales suggest late November / early December – but this is subject to a number of factors and may change.
Following commencement, the limit for holding someone in any location as a Place of Safety will reduce from 72 to 24 hours. – see s136(2A) MHA. This will bring England and Wales in to line with Scotland who capped Place of Safety detention at 24 hours almost fifteen years ago. I will admit, this is the amendment I’m most worried about in the whole programme: we know there are various reasons why assessment under s136 exceeds 24hrs on a fairly frequent basis; indeed there are not-entirely-rare examples of 72hrs proving insufficient because of difficulties finding beds for admission.
So here are the main potential problems that will put pressure on the ambition that most cases are resolved within 24hrs. The more of these you have in your area, the more difficulty you are going to face, I would suggest! –
- AMHPs – there is a problem with staff retention in AMHP services. I’m aware from emails recently that in some areas they have not been able to ensure even one AMHP over the 24/7 cycle. One force said they’d detained someone under s136 at 9pm and were aware by 10pm that they would not see an AMHP until around 9am the following day because there would be none on duty at all. In fairness to some local authorities, they are finding it difficult to recruit and some have fewer than half of the full-time equivalent AMHPs for their core statutory functions. In fairness, I’m full of admiration for those undertaking the role – I wouldn’t be prepared to do it. Big kudos to those who do!
- DRs – meanwhile in some areas, AMHPs say that they are more-or-less surviving but they struggle to secure a s12 DR to undertake the s135/6 assessment. On social media only a day or two ago, one AMHP was asking what happens in other areas of secure a doctor after they had made twenty-five phone calls to twenty-five different doctors!! … all of whom, declined to turn out. Any Registered Medical Practitioner can undertake a s135/6 assessment so perhaps we’ll find the ‘non-s12 approved’ doctors having to be used to avoid running out of time? It may come to a point where AMHPs have to choose between using a s12 DR or getting it sorted within 24hrs because they can’t have both.
- Beds – various indicators are telling us that admitting patients to hospital is challenging. We’ve seen media coverage of difficulties, including where admitting people from police custody after they were originally arrested for whatever reason. Admission after section 136 MHA assessment was always easier because staff could take whatever remained of the 72hrs to find a bed – now they will have whatever remains from 24hrs to do so. It begs obvious questions – that only CCGs / LHBs can answer – but meanwhile, police forces have threatened legal action to defend their officers where this happens and one force is facing legal action after someone spent four days in custody.
EXTENSION OF DETENTION
Just occasionally, the 24hrs time limit can be extended up to the real maximum of 36hrs – but this cannot occur every time just because complying with the normal limit is proving difficult. Section 136B relates to the extension and states –
“S136B(2) – an authorisation may be given only if the registered medical practitioner considers that the extension is necessary because the condition of the person detained is such that it would not be practicable for the assessment of the person for the purpose of section 135 or 136 to be carried out before the end of the period of 24 hours.”
So there are four points to emphasise –
- The DR who is conducting the s136 assessment must authorise the extension before the 24hrs is complete.
- The DR can only extend detention where there is difficulty in arranging the assessment ‘because of the condition of the person’ – they CANNOT extend detention because there is difficulty, for example, in finding a bed.
- If the person is detained in a police station as a PoS, the DR may give this authorisation only if a police officer at the rank of superintendent approves it – there is no contingency for an inspector to authorise this where no superintendent is available, although nothing prevents the superintendent authorising this verbally by telephone. It is not in any way related to superintendents’ extensions under s41 PACE.
- Where an extension is authorised, the DR (and superintendent) must specify how long they are authorising beyond 24hrs. It’s not an automatic entitlement to a further twelve hours every time – see s136(2A)(b).
So where someone is intoxicated and assessment is delayed; OR where it is necessary to take someone to an Emergency Department for urgent medical treatment before assessment: these situations would allow the DR to extend detention – although how that happens if one problem is a delay due to not being able to secure a s12 Doctor, I’m not quite sure! What is clear, is that a lack of beds for admission will not allow an extension of the 24hrs up to 36hrs and a delay in finding an AMHP or DR is not sufficient either. Police officers should watch out for deliberate delays in undertaking assessments, so as to create conditions within which the authorisation appears possible. Forces should ensure that where they remain involved in detaining someone under s135/6 at a PoS, they have been clearly told the reasons for the delay in assessment, document it and satisfy themselves to the extent that they can it was appropriate. It would not be sufficient to simply say, “The DR authorised it”, especially if it seems possible that there wasn’t a legitimate reason for delay, such as finding professionals to do it.
Things which have occasionally been done a touch casually now need to be done with some discipline: police officers need to ensure that AMHPs are told of s136 detentions as soon as someone has arrived at the first Place of Safety to which they are removed, including where an Emergency Department has been used. We must NOT burn up precious parts of the 24hrs clock by stalling on this point. It may be the case that someone is not immediately able to be assessed and it could be there is a delay in the AMHP or DR becoming available, but the duty on the police is to inform the AMHP as soon as possible.
There was an inquest in Reading a few years ago whereby officers delayed informing the AMHP, mainly because the man detained needed treatment in an Emergency Department for physical injuries. Who amongst us hasn’t done that with someone detained under s136?! – what are we expecting the AMHP to do if we know the person is within a queue of unspecified length with an uncertain amount of delay to be treated?! The Coroner took a clear position that it did not matter and that the AMHP should have still been informed. If nothing else, it put the fact of the s136 detention on record, might have led to some early information exchange that could have proved useful but it also allowed the AMHP to start planning their competing demands to be available for that assessment, having jacked up a DR, as soon as possible after ED had finished treating him.
This will become even more important, post-commencement. AMHPs are in shortly supply in many areas; s12 DRs are in short-supply in many areas. The earlier an AMHP knows of the detention, the more time they have to think about what may be required and to either roll with any problems, or at least to flag them up to the police or Place of Safety so they can manage everyone’s expectations — call the AMHP as soon as you get to the first place to which you go and in to which you are accepted – whether that’s an Emergency Department or anywhere else at all!
I’ve briefly mentioned this as a problem, above but I’m now going to labour the point. In fairness, this is the problem which seems to be most concerning to AMHPs who are going to be undertaking assessments and then very much being left at the mercy of NHS Bed Managers should there be any difficulty at all in securing an admission. Many people argue there is a national shortage of inpatient psychiatric beds, including for adults but especially for children and others with specialist needs requiring a learning disability or psychiatric intensive care unit bed. We still see stories around the country of people being moved hundreds of miles away and work I’m doing about admission from police custody shows us clearly there is an over-reliance upon the police to ‘house’ people, in not-altogether legal circumstances pending beds being managed or found. This doesn’t look like being sorted any time soon and the new timescales for Place of Safety assessment aren’t going to make this any easier so old arguments seem worth revisiting as the inevitably become more in the future relevant in the future.
When I first started formally working on mental health I didn’t really know where to start so I sat down and read the Mental Health Act – actually several times. I did the same with the Code of Practice to the MHA. I noticed section 140 of the Act and was interested in it after incidents in my own force where beds had been hard to come by. I also noticed that section 140 MHA was simply not mentioned in the (1999) Code of Practice, nor was it mentioned when the Code was updated in 2008. So I’ve banged on for a decade at every chance I’ve had about this often ignored provision of the Act. I can say ‘often ignored’ because over the years I have made Freedom of Information applications to over fifty Clinical Commissioning Groups (previously known as Primary Care Trusts) about what the have done with the legal duties arising from this section. I will let you read my post on section 140 MHA if you want more detail – the punchline is CCGs and LHBs must specify hospitals which are in a position to receive urgent admissions. Although the section doesn’t say very much more the clear and obvious implication of the provision is that those hospitals should usually have at least a fighting chance of being able to admit people urgently, where their health and safety, or that of others is jeopardised. Almost no CCGs can fully answer the FoIs I have sent them over the years – many admit they weren’t aware of the provision and don’t understand what I’m asking.
So – when AMHPs and DRs have made their assessments within 12hrs and have only another 12hrs to find a bed for any admission that is indicated, whether or not the CCGs or LHBs has complied with this legal duty and actually commissioned services in such a way as to mean they have contingency. The police and Place of Safety services will be less of a contingency in the future, so compliance with this section and its implications are going to be vital. Wherever we see delays in admission and especially where it is assumed the police will just endlessly hang on to people pending these arrangements being identified, it arguably represents an article 5 violation and by virtue of s6(1) of the Human Rights Act 1998, no public authority may act in this way – ever.
If you are a mental health professional reading this: please ask your managers or CCG / LHB about section 140 MHA.
The next post in the series will focus on the places where s136 can now be initiated.
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