Around nine months ago I started writing a series of BLOG posts, in the three-month build up to the introduction of the amendments to the Mental Health Act 1983, contained within the Policing and Crime Act 2017. The original idea was that the changes would kick in during May 2017 but you may remember a snap General Election got in the way of that and an outcome that probably wasn’t the expected outcome got in the way of a suggestion that the commencement order – a necessary Parliamentary process to bring the changes in to effect – might get concluded before the Summer recess for MPs. Parliament only reconvened in early September and we’ve already broken again for the political party conference season, so it’s now going to be October before the order can be introduced to the Commons. The jokes have started on social media about whether this will emerge during 2017!
The estimate I’m hearing at the moment is: the amendments will take effect in late November or early December.
So, despite everything and way more than half a year down the line from the posts, we are still in a position where we probably have three months to go until the changes take effect! If you are an frontline police officer, this operational summary is aimed directly at you. Twelve bullet points that put the amendments in a shortened form, with links to the fuller posts. Might I recommend you click the link from a smartphone, save the page and bury it somewhere at the back of your phone for reference when this stuff takes effect?! The full posts I’m referring to, written earlier this year are here –
- No child may be taken to police stations as a Place of Safety (PoS) under ss135/6 MHA – full post.
- The police will now have a specific power of search for those detained under ss135/6 both at the point of detention and at arrival in a Place of Safety – full post.
- PoS detention under ss135/6 may only last 24hrs, unless authorisation extends this to 36hrs in specific situations – full post.
- Section 136 will be able to be instigated anywhere other than a home – bringing new opportunities and challenges – full post.
- There will be a requirement, where practicable, for officers to consult with a DR, nurse or AMHP prior to using s136 – full post.
- Adults may only be taken to police stations in ‘exceptional circumstances’ (yet to be defined) – this post will appear once the Regulations are published.
Finally, if you want to read the new laws for yourself, there are three further posts, one each for the three sections of the MHA which will be amended soon –
Certain things have emerged as myths over the Summer and forces have been contacting the College to seek clarification as they’ve continued work to prepare for this. A short list of the main myths I can recall, just to shoot them down in flames in case they’ve taken hold or risk doing so! –
- The consultation requirement means officers must consult – no, it doesn’t. It means the officers must consult, where practicable – those words show the law doesn’t make this strict requirement and if officers simply must act to detain and keep someone safe, the lack of consultation doesn’t render this unlawful. Fine judgements will have to be made here!
- Officers must search all patients upon arrival at the Place of Safety – it’s not a routine power of search. The law demands that the officer (not the staff) must have “reasonable grounds to believe” the search to be necessary. ‘Belief’, in law, is a much higher threshold than ‘suspicion’ so you can’t just go on a fishing expedition to see what you find!
- Children can still be taken to police stations as a Place of Safety as long as they’re not in the custody office or the cells – this is not correct. The ban in the Act is on the use of police stations as a whole and not just on the use of police custody. You can’t use the front office or the more comfortable interview room used for vulnerable victims of crime, etc..
- The extension to 24hrs of detention can be used if there is difficulty finding an AMHP or Doctor to undertake the assessment – if only this were true! Extension can only occur in connection with the condition of the person, not because of a lack of professionals or because of a lack of beds for any admission required.
- The debate is running about where the new version of s136 can be used – the law says it cannot be used in any “house, flat or room” where that person or another lives; or any “garden, garage, yard or outhouse” connected to it, unless it is communal. So individual homes made from buildings and its land and outbuildings are (still) out-of-bounds.
Finally, over the coming weeks, I will try to add a couple of posts which are half-baking in my head after conversations over the Summer about unintended consequences. I suspect not everywhere will be fully prepared, notwithstanding the extra time this delay has afforded; and I also think it will be quite lawful to act in ways that weren’t necessary considered as these laws were progressing through Parliament and granted Assent. The major one will be around police custody, I suspect. It will be lawful to use s136 in police custody and I see this having two impacts: pre-release risk assessment; use after a Force Medical Examiner calls for a statutory assessment in custody, but prior to the MHA assessment being conducted. This latter point is the thing I don’t think has been fully considered yet.
After all that, we now seem to be back at the point where we have three months, but perhaps a bit less, until this stuff will become law. Time to think again about whether we’re ready and for individual front line staff to get their heads around their version of the obligations that will follow and how we will handle the problems that are bound to emerge in due course.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2019
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – http://www.legislation.gov.uk