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 late November / early December – but this is subject to a number of factors and may change.
Under current law, a Place of Safety is “a hospital, a police station or anywhere else temporarily willing …” to receive the person. The definition has always allowed “anywhere” to qualify as a PoS, subject to the ‘temporarily willing’ part, but the grammar of this sentence has caused confusion. More than one A&E department has argued ‘temporarily willing’ also applies to hospitals acting as a Place of Safety. In other words:, the argument went that hospitals are not a Place of Safety unless they are temporarily willing. Of course, if we are going to torture the English language to make that argument, then it would also apply to police stations, but that point gets ignored whenever you raise it! And whatever the merits of the argument or my own views on that: within weeks it will be consigned to history.
But history has allowed anywhere to used as a MHA Place of Safety: the teenage girl who was just taken home, because the detaining officer was keen to avoid taking her to a noisy custody office – his only other choice at that time; the kindly GP in a rural area who was asked by an officer on foot patrol who’d detained a man, if he could just give them somewhere warm to sit until he arrange transport that was indefinitely unavailable – the GP went further and asked the AMHP to come to them, where they sorted it without further travel; and finally, the young girl ran off from school as they were trying to call her parents and arrange mental health services to help her in crisis – the officers found her and took her back to school to ask “what now?” and ended up staying there as MH services were already on the way.
So the Act always has allowed for flexibility and improvisation, notwithstanding that local policies have often denied this or made no mention of it. The re-wording of the Act aims to make this all much clearer and in my opinion alters only a few things, but makes it more complicated to navigate through difficult detentions –
It’s section 135(6) that contained the old definition and that has all been reworded – you will also need to read the newly-inserted s135(7) MHA. You’ll notice that no use is made in the law of the word ‘dwelling’ or ‘non-dwelling’ but these are the words I’m going to use in the rest of this post to distinguish between the “house, flat or room” stuff, from any other option that may be considered. Of course, dwelling has different connotations and only recently, one person made the point that their narrow-boat was their home and their only dwelling. But is it a “house, flat or room”? Almost certainly not, I’d guess … any views?!
The new law –
(6) In this section “place of safety” means residential accommodation provided by a local social services authority under Part 1 of the Care Act 2014 or Part 4 of the Social Services and Well-being (Wales) Act 2014 a hospital as defined by this Act, a police station, an independent hospital or care home for mentally disordered persons or any other suitable place.
(7) For the purpose of subsection (6)—
(a) a house, flat or room where a person is living may not be regarded as a suitable place unless—
(i) if the person believed to be suffering from a mental disorder is the sole occupier of the place, that person agrees to the use of the place as a place of safety;
(ii) if the person believed to be suffering from a mental disorder is an occupier of the place but not the sole occupier, both that person and one of the other occupiers agree to the use of the place as a place of safety;
(iii) if the person believed to be suffering from a mental disorder is not an occupier of the place, both that person and the occupier (or, if more than one, one of the occupiers) agree to the use of the place as a place of safety;
(b) a place other than one mentioned in paragraph (a) may not be regarded as a suitable place unless a person who appears to the constable exercising powers under this section to be responsible for the management of the place agrees to its use as a place of safety.
The proposal to explicitly allow removal of someone to a “house, flat or room” etc., has caused some consternation. The new law attempts to put the person detained in the driving seat of this, in the sense that they must, first of all, agree to any of the possibilities. Officers could take the person to a place where they live alone, to a place where they live with someone else, or to a place where they do not live, but are likely to receive support from those who do. In each case: the patient must agree, before you even consider whether anyone else’s permission is required. If the person lives alone, only their agreement is required to take them home; if they do not live alone or if you not taking them home, agreement is also required from one person who lives at that location.
A few things on this point –
- The requirement for agreement, seems to be different to the issue of consent which implies the person would have to have capacity – if someone agrees they’d like to go home, does an obvious lack of capacity to make that decision mean we should definitely think of another, more ‘traditional’ option?
- There could be certain issues connected to taking someone home: many people with serious mental health problems have experienced trauma or abuse, to one extent or another, and it would be the worst thing imaginable if an officer detained someone and then took them back to a place where an abuser was, whether that be a parent or a partner, etc..
- So background thought about the option being pursued may be needed: the officer I referred to above who took a teenage girl home did diligent background checks before going there. He checked PNC; spoke to Children’s Social Services and tried to speak to MH services, who were not contactable – but at least he tried. Nothing suggested a problem.
- Also consider the AMHPs – the AMHP has a duty when convening assessments to ensure the person is interviewed in a suitable manner, and issues around dwellings and families may affect this. It may be known the person’s family member will cause problems in an assessment; it may be the dwelling is known to be unsuitable for various reasons.
Keep the person detained at the centre of decisions – seek to discuss it with the AMHP, if you can, potentially via street triage or other partnership schemes: if trying to put this stuff in place is going to take hours or involve professional conflict and disagreement, perhaps we should rethink the position before sitting around for ages. AMHPs do actually win, when it comes to disagreements, by the way! – they have to take responsibility for the conduct of their assessment.
This is where things may get difficult, because this is where the disagreements have occurred before and may yet again, under apparently different rules. It has always been my argument that Emergency Departments could act as a Place of Safety under the MHA and they always did have the right to say ‘No’, if they felt that was the appropriate thing to do. I’m not at all convinced that much of this has changed: it’s just that s135(7) makes it more explicit that those controlling non-dwellings have to give their approval to their location being used. And contrary to certain arguments I’ve heard, it seems clear that s135(7) does apply to hospitals. (Use of police stations will be subject to individual statutory regulations, due for publication in the next few weeks.)
So crucially — I’m aware some EDs think the rules are changing here. I don’t think they are, notwithstanding how the law has been reworded. It was always lawful for officers to ask ED to act as a PoS, whether or not the person’s presentation indicated ED as being required and this remains the case. I recall asking ED to allow my officers access with a lady detained under s136 who was in her 60s and probably had dementia. She didn’t have an obvious reason for being in ED, but our only other option was custody, so it seemed right that we try to keep her out of there, if at all possible. ED agreed to let us keep her detained there. This kind of thing doesn’t change when the Act is updated in December: it will still be possible to ask, it will still be possible for ED to say no, if that’s what they wish to do. And they can still choose to say yes.
Doctors in ED may well be reading s135(7) and thinking this is now the power they need to insist that officers remove someone to a more appropriate setting. My point has always been, that people do tend to go directly to those more appropriate settings where they exist with capacity to receive patients; we tend to start thinking about ED and other options where all we’ve got left is police custody. The difference in the future is that police custody will not be an option in all but the most limited of circumstances, and certainly not available in the case of my lady with dementia, above, who we helped when I was a sergeant about fifteen years ago. One fear I’ve had amidst all of this work to amend Part X of the Mental Health Act (the part containing police powers) is that areas who have relied heavily in the past on police custody and / or who don’t have sufficient capacity for their anticipated, and potentially rising demand from s136 detentions, may end up in a perfect storm.
THE PERFECT STORM
I recently did an email survey of force mental health leads to see where they felt they were with this. There are forces in England who are nervous they still don’t know where they will take under 18s; some worried about overall PoS capacity – most are worried about whether the NHS has enough beds to conclude admissions within 24hrs. And of course, some NHS Trusts still don’t know what the statutory regulations will say about the use of custody so their managers will be unclear how many times detainees can be deflected to custody. If I were them, I’d aim for very low volumes being lawfully allowed to custody. Take that as a hint, if you wish.
So imagine –
- You’ve detained someone, you call an ambulance and there’s no agreed reason why someone would need to attend ED.
- You contact the Place of Safety designated in your area for s136 and they are unable to accept the person.
- The legal grounds for suing police custody, as outlined in the Regulations, are not satisfied.
- Do we ask ED to act as a Place of Safety and / or start considering other the other options involving dwellings?
- What do we do if ED quotes s135(7) and / or the dwelling options are discounted as possible because the person lives 100 miles away.
What I’m worried about, is the possibility that someone could be held in a police vehicle or ambulance outside an ED department for a significant period of time – if you think I’m worrying unnecessarily, see episode 7 of #Ambulance from BBC1 last week, where it happened for real. Areas need to get talking to each other, if they’re not already – and it was pleasing to see, in the replies to my email, that some forces do think they’re ready to stroll through this.
I hope they’re right!
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All views 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