In 2016, the Welsh Assembly Government published a new Code of Practice to the Mental Health Act 1983. This followed on the update England had received the previous year. In many respects, there is now far greater concordance between the policing aspects of these two documents which certainly made it easier than it would have been to write the College of Policing’s guidance during 2015/16. We’re going to have to update that guidance shortly, to take account of the new provisions and I have a question to answer which seems literally impossible to answer, as things stand.
Politically speaking, all health issues are a devolved responsibility in Wales, whereas policing is not. This creates some difficulties when it comes to issues which affect both. The Mental Health Act is an example of this – it’s primarily health legislation but it contains policing and criminal justice provisions, like Part III of the MHA and the powers being amended like ss135/6 and s138. The specific example emerges in the guidance document which has been published ahead of the changes to the MHA introduced by the Policing and Crime Act 2017. Forces and mental health trusts are now in to that frantic period of work before the changes take effect on the 11th December and one of the main pressures that we will face as we move in to next year, is that we will only have 24hrs to get someone ‘sorted’ when they are detained under s135/6. It’s sometimes problematic to do so where we have 72hrs, so every minute of the 24hrs will be crucial.
So when, precisely, does the Place of Safety clock start ticking?!
THE LONG ARGUMENT
The English Code of Practice (2015) states, in paragraph 16.26 – the maximum period a person’s may be detained under s136 is 72hrs. In practice, detentions should not need to be this long. The imposition of consecutive periods of detention under s136 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).
The Welsh Code of Practice (2016) 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.
Make of that lot what you will! It begs certain subordinate questions before you can get properly in to it. Before the 2017 guidance document emerged – more on that, below! – people would argue that “A&E is not a place of safety!” and simply hope that ended the argument about a) whether the obligations which kick in upon arrival at such a place began on arrival at ED; and b) whether that meant more officers would be turning up with anyone and everyone, arguing, “because you are a Place of Safety, you have to accept this person!”
In reality, it was only ever about the first aspect, but I do accept the history of this stuff means ED also feel, a bit like the police, that some vulnerable people are somewhat treated like a can to be kicked further down the road and that their (busy and often chaotic environment) wasn’t ideally suited for those of us in distress because of a mental health crisis. I don’t think anyone massively disagrees with that – I’m only making the point that in any area of each country, some people detained under s136 will also urgently require the kind of medical care that can only be provided in an ED. And that if you’re detained under s136, we need to know what to do upon arrival at ED – do we start the clock, must we contact the AMHP, etc., etc.?
ENGLAND v WALES
Since nothing in the 2015 English code specifically stated whether 16.26 applied to arrival at ED (for whatever reason you went there) or whether it just meant arrival the s0-called ‘designated Place of Safety’, we weren’t entirely certain what to make of it. I say ‘so-called’ because neither the Act nor the Codes talked about a ‘designated Place of Safety’ – this is a phrase in common usage and which is given a certain rarified, quasi-legal status, but which isn’t actually found in a legal document of any standing. I think it just means a place of safety that has been agreed or specified in the local protocol about the operation of s136 MHA. Whilst it is, of course, important to outline what the most commonly used locations may be, nothing agreed locally prevents any improvisation because the Act has always said that anywhere can be a Place of Safety under the Act – including my mother’s house, if the need arose.
My favourite point on ED was always , “A&E is part of a hospital and hospitals are a place of safety, according to s135(6). If they are also agreeing the person detained needs to be in their department for assessment and treatment that only they can offer, then how are they NOT acting as a Place of Safety for the purposes of the Mental Health Act when a) they are a hospital; and b) they have agreed to receive the person. The distinction between being ‘injured or ill’ and requiring assessment for ‘mental health’ may not be possible and for various legal reasons, these issues may need to be considered together. And at the risk of making the most obvious point of all: this argument is usually breaking out when the only person who has yet put their professional name to the pathway the person is experiencing is a police officer with a first-aid certificate – and they may be wrong!
The publication of the current Welsh Code complicated things unnecessarily, in my view. Firstly, it started from that premise: that ‘treatment of illness or injury’ is separate to ‘mental health’. So many cases over the years show that some people – not all! – who go to EDs often stay there for urgent MHA assessment and then for admission to the acute hospital for treatment without consent. It is not always known at the point where someone enters ED whether they will be able to leave again – like the lady detained under s136 who was ‘bounced’ to ED by the Place of Safety nurse and found to have meningitis – didn’t leave ED, MHA things considered and concluded in the acute hospital.
So, when does the clock start ticking?! – well, we do know that the English and Welsh Codes can’t both be right! And if you’re a British Transport Police officer and you operate both sides of the border, you might wonder which rules you should be following – does time spent in A&E ‘count’ or does it ‘not count’?! Bearing in mind this disagreement is a disagreement in the Codes of Practice, which is not the law, but statutory guidance, I specifically asked the Home Office to ensure this question was addressed as they produced their guidance. This is what they came up with —
The recent guidance document states, in paragraph 4.4 – if a person detained under s135 or 136 is taken first to the Emergency Department of a hospital, for treatment of an illness or injury (before being removed to another place of safety) the detention period begins at the point the person arrived at the Emergency Department (hospitals being a place of safety).
For me, whilst accepting this isn’t a court ruling so we do not definitely know, this more-or-less settles the matter. The document has been produced but the Department of Health and the Home Office, in full consultation with the Welsh Assembly Government and the Police Liaison Office of the Welsh Assembly. It specifically points out that each country has its own Code of Practice but that compliance with it may have to change, where substantive laws have changed. Well, overall timescales for detention under s135/6 have changed, considerably; and what I also know, is that following this guidance means you’ll never accidentally drift in to the territory of unlawfully detaining someone.
Remember, you can extend the detention of someone under s136B from 24hrs to 36hrs if the condition of the person prevents their assessment under the Mental Health Act. A delay because of treatment in A&E for injuries or illness would be one of the particular examples in the minds of the legislators – “if there is a hold up because of intoxication or injury, they may need more time, so we’ll give them s136B” or similar, so they’ve catered for the possibility that delay may mean we need slightly more time.
ERRING ON THE SIDE
Of course, there may be opinion out there that this interpretation is wrong – I’m aware of some advice given that suggests it is. It just seems the obvious point to make that the DH/HO also had legal advice on this when it was produced so what we’re left with is a disagreement amongst lawyers who have advised in Wales versus those who have advised in England. What a shock … said absolutely no-one. Having discussed this thing informally with many lawyers over the years, including this week, most don’t understand why the Welsh Code says what it says and agree there are concerns about taking it at face value.
Back in the real world, police officers, place of safety staff and far less occasionally, Emergency Department staff may have to make real decisions about when the 24hrs or 36hrs is ‘up’ and whether they can or should continue to coerce other human beings. All I know is this: if you count it from arrival at ED, you’ll never end up accidentally detaining someone unlawfully. If you do ignore the time spent in ED, you’re awarding yourself extra hours with which to detain someone pending a final decision about them. How many hours is OK? – can we can ignore a 4hr wait; and then still help ourselves to a further 36hrs; what about. a 12hr wait meaning we end up holding someone for 48hrs overall? How lawful would it be to take that 12hrs for ED treatment, then also use the s136B extension to effective take double what parliament intended? … where does it stop?!
Parliament seem quite clear: they want things done and dusted in 24hrs maximum as a standard, 36hrs in extremis – they no longer want people detained for longer than 36hrs under any circumstances. It has always been my view that time spent in ED has to ‘count’, for the reasons given – Parliament has now reflected the idea of delays for urgent illness or injury with a specific provision giving more time where this has been necessary. In the absence of a court ruling on this particular point, I admit I’m at a loss to understand why we just don’t get on with things within this framework and stop arguing about it.
It could just be me …
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
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