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. This post is one of several which relates not the amendments themselves, but to the implications arising from them.
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 early May – but this is subject to a number of factors and may change.
It’s now a dozen years since I first read section 140 of the Mental Health Act 1983 – and I recently met some senior mental health professionals who never ever read it or heard of it. When I first read the provision, in 2005, section 140 MHA was not mentioned once in the accompanying Code of Practice (1999), or the Reference Guide form the Department of Health. It still wasn’t mentioned when the Code was updated (2008) or in the revised Reference Guide. If you read the formidable Mental Health Act Manual by Professor Richard Jones, you’ll see this book provides the full text of the Act and Code as well as a commentary on the sections of the Act, so of course it was covered in there. However, the commentary was limited in comparison to that for other provisions.
I’m not going to repeat my first post on section 140, so you can go back to that original post if you wish. This blog argues just two things –
- We still aren’t really talking about this provision – what it says, what it means and how we actually acknowledge its existence in law by action in the real world; AND
- It’s now become more important than ever before – it will become more important still in just a few months time; and this raises the importance of point one!
When public consultation occurred for the latest Code of Practice (for England) in 2014, the draft didn’t mention section 140. I replied to that consultation asking why not, given it was missing form the two previous editions and from the Reference Guides, so it consequently seemed that no-one had heard of it. Its implications may be widely ignored and I came to increasingly see that as a problem, not only for the police. I was delighted to find, when the Code of Practice was published in 2015, this provision finally received a brief mention (see the section commencing at paragraph 14.77).
When legal discussion occurs about Acts of Parliament, we often hear people wondering about parliament’s intentions, too help interpret the text of an Act. Of course, intentions is one thing, the actual wording of the Act might be something else instead, depending on the quality of how the law was drafted. Section 140 of our current Act is, in fact, just a direct transfer to the ’83 Act of section 132 of the preceding 1959 Mental Health Act. It’s a provision that has almost sixty years of history but that, I haven’t been able to find out much about that history, despite efforts. All I can say, is I’ve made Freedom of Information requests to well over 50 different Clinical Commissioning Groups (or their Primary Care Trust predecessors) and I don’t find myself satisfied by a single, solitary answer I’ve received. I most recently did this in 2016 at which point several CCGs just replied to say they’d never heard of the provion and didn’t understand my question. And this is the law of our country we’re talking about!
The section itself says –
“It shall be the duty of every Clinical Commissioning Group and of every Local Health Board to give notice to every local social services authority for an area wholly or partly comprised within the area of the clinical commissioning group or Local Health Board specifying the hospital or hospitals administered by or otherwise available to the clinical commissioning group or Local Health Board in which arrangements are from time to time in force — (a) for the reception of patients in cases of special urgency; (b) for the provision of accommodation or facilities designed so as to be specially suitable for patients who have not attained the age of 18 years.”
So what does this all mean? … actually?! –
The 1959 Act was written at time where mental health units were not expected to considered themselves ‘full’. A local, county asylum would continue to accept and accommodate patients thought to need admission where applications to them were made under the Act or by the courts, not withstanding such modern niceties like capacity or conditions. Indeed, earlier in my career, when I sought legal advice on MHA admissions, the barrister concerned advised that hospitals were actually not legally permitted to refuse admission made to them. I haven’t heard this repeated by anyone else since(!) – and indeed I’ve heard it repeatedly contradicted – but it attends to this point: where detention or admission is required, for safety reasons, it needs to be able to happen.
MORE THAN BUREAUCRACY
Legal considerations about the need to admit someone urgently under the Act include more fundamentally important things than niceties and bureaucracy in our particular domestic law. It could also amount – and it often does amount – to a human rights consideration. We know that prolonged detention in police custody (pending admission) can contravene Article 3; we know that protracted detention in custodial settings for no other reason than mental health problems can amount to an Article 5 violation; we know duties owed to patients who are known to be suicidal can give rise to Article 2 considerations, whether the patient is detained or voluntary. And we know that no state may defend these things by arguing they don’t have the money to prevent them. As such, dependent upon the precise circumstances, the need to ensure an urgent admission may be something which triggers one or more of these various duties? – remember: no public authority may act in a way that is contrary to a person’s European Convention rights, by virtue of s6(1) Human Rights Act 1998.
It must surely have been the intention of Parliament when writing and updating the Mental Health Act over the last sixty years that wherever AMHPs and DRs encounter people in urgent need of admission, that occurs just as it would if someone had any other serious, potentially life-threatening condition? I struggle to read section 140 without thinking about these implications: I know the section does not overtly oblige hospitals specified to receive patients where they have good reasons for needing to resist an admission because of the pressure they are under. But this, for me, is where the intentions come in to it – presumably, Parliament are asking CCGs to ensure that there are contingencies available to ensure that at least one of those hospitals is in with a fighting chance of actually receiving the person for urgent care. Whether CCGs commission things in such a way as to ensure hospitals run, as the Royal College of Psychiatrists recommends, at 85% capacity; or whether there are other mechanisms provided for around an increased availability of staff and space, to be triggered by managers in relevant situations – either way, it would amount to a plan.
The conversation inevitably comes back to money: the NHS mental health system is under pressure and NHS commissioners can’t afford to do anything other than cut, the argument goes. But only yesterday we saw that NHS managers at national level have taken choices to use money ring-fenced for mental health in order to clear the deficits of acute trusts. There are choices being made here. I remember reading the legal documents for the MS v UK case which related to a challenge against the NHS in Birmingham over protracted detention in custody. The lawyers representing the applicant, in their submission to the European Court mentioned a case from Ukraine, which I’ll be damned if I can name or find when searching for it! – I will update this page if my queries bring it to light. But the case essentially said that no state can defend a violation of the ECHR by claiming ‘economic necessity’: you can’t argue, “we can’t afford to it in any other way” if your approach amounts to human rights violations. It’s just not (legally) sufficient.
These issues are live problems that your police service often see – it’s over ten years since a police force first felt that they were in such an invidious position because of the inability of mental health services to get someone in to a bed that they referred the case voluntarily to the Independent Police Complaints Commission. The IPCC found the force and its officers had broken the law, but that there was just no way they could have done otherwise because the only alternative course of action they had available to them was to release the person from custody, whereby they would have failed on other obligations. It was one of the genuinely rare “damned if you do, damned if you don’t” situations. Only a couple of years later, I remember a murder investigation in the West Midlands that risked going off the rails because a suspect needed to be admitted to hospital under the MHA and the argument broke out about no (secure) beds being available. As with the IPCC investigation in to GMP, it took threats of legal action by the force to eventually cause a bed to be found. More recently, we saw the case in Devon of a sixteen year old girl being detained for two days which led to a senior officer tweeting about the situation to draw attention to the problem and media reaction forced an outcome that was otherwise not likely.
Those examples all relate to police custody after arrest for an alleged offence but there have been difficulties relating to section 136 detention and admission from police custody. The MS v UK (2012) case involved a 72hr time limit within which to conclude arrangements for treatment but this was not adhered to, again because of arguments about accessing a bed in a secure mental health unit. In that case, the European Court ruled there had been an Article 3 violation because of the patient’s “dire need” of psychiatric treatment. If we are about to see the timescale for s136 MHA assessment reduced from 72hrs to 24hrs, it seems only likely that there will be more cases in the future where we cannot arrange a patient’s admission within the timescales afforded by domestic law.
I’ve been repeatedly asked in the last few weeks what should happen if the 24hrs limit is reached and no application has been made? – that answer is really, really easy: you have to decide whether to release a person in to the street, knowing they are so unwell they require compulsory admission to hospital; OR you unlawfully detain them pending the identification of a bed. There is no easy, ideal and lawful option available to you. You must decide between the two things, whilst escalating to senior officers and senior health managers, citing the legal problems and demanding resolution as soon as possible. But this all comes back to he question of whether section 140 means what I think it means: that CCGs and LHBs should be specifying those hospitals which have arrangements for urgent admissions AND then ensuring they are operating in such a way that if an AMHP needs to make an application for admission in a hurry, they are not prevented from doing so whilst exhaustive and protracted searches occur for beds. Whatever it is that section 140 means, the way in which it and all the other sections of the MHA are given effect, MUST then ensure that the human rights of patients are protected. No public authority may act otherwise and they cannot defend the situation by arguing that they don’t really have the money to do it any differently.
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