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. We now know the changes will take place on 11th December 2017.
We now know we are staring down the barrel of the Policing and Crime Act amendments to the Mental Health Act 1983 – they are just four weeks away, as of today. In the last week, I’ve had numerous phone calls from forces and emails from officers asking ‘what if’ type questions … basically, asking what the operational answers will be to situations we all hope won’t emerge, but which history suggests are quite likely. Not all of these problems will emerge in every area, so I’m not predicting that everything will grind to a halt, but I would suggest most of these problems are likely to occur in at least one part of the country OR are likely to occur as an occasional problem in areas where things usually work well.
This post can be added to in the future, because I’ve started off with just those questions I’ve received so far and a few I’ve thought of just during a train journey to London! There may well be others and no doubt some I haven’t though of at all … fire them and we can all get thinking. This post is just to get us to start that process of us thinking about a potential Plan B, for those occasions where Plan A just isn’t possible, for whatever reason —
- What if there is no-one to consult with prior to using s136 MHA?
- Then it is not practicable, so you crack on without doing so. You are not obliged to scour the NHS for any old Doctor or nurse, AMHP or paramedic, to run a scenario past them which will likely lead to them wondering why you’re boring them with the story at all! If you areas has a so-called ‘street triage’ service, or an established method by which to consult, fine – you must use it where practicable. If not, just crack on officer.
- What if the person consulted believes s136 MHA should not be used?
- The legal power under s136 is for constables and for no-one else – this point is emphasised not to dismiss the views of others, who may have information and valid reasons for advising a particular course of action. However, that is just one piece of information or opinion the officer must take in to account when forming a view to detain. Nothing prevents a police officer listening to any view offered, from the consulted professional or from any family members present, and then taking the action they think they must.
- What happens if our area has nowhere identified for under 18s to go as a Place of Safety or if the identified location is unwilling or unable to receive a particular child?
- The only remaining option which will definitely exist in every area is the Emergency Department in the acute hospital. Nothing in law prevents an officer asking ED to act as a Place of Safety for a child, where no other provision exists or where that provision is un
- The only other alternative is to ‘improvise’ – and this will need careful thought.
- You cannot use a police station at all for someone under s18yrs of age – this is not just a ban on the use of custody, it is a ban on police stations, including front office interview rooms, the rooms some stations have for vulnerable victims or the TV / rest room. All banned because they form part of the police station.
- What if the Place of Safety is full and the person detained does not require treatment in the Emergency Department?
- Historically, police custody was used for many people who did not require ED treatment where the NHS Place of Safety was full with others detained under s136. This is now not lawful, because of the restrictions imposed on these use of Police Stations as a Place of Safety.
- If the so-called ‘designated’ Place of Safety is unable, unwilling to receive the person and the grounds for using the police station are not met, then you have to find another solution. Nothing in law prevents a police officer asking ED to consider allowing the person to be assessed in the ED. It’s not ideal – but nor is it unlawful, as long as ED agree to this action.
- Should they choose not to do so (there is no obligation upon them to do so), then officers must consider improvising, as outlined in the previous answer: could that person be taken home or to a family member’s or friend’s home? If all avenues are exhausted, it may be a case of making it known to the MH PoS and / or ED, that there are no viable options and the person will have to remain in a police vehicle until such time as they can be received.
- What if the NHS disagree with the inspector not authorising the use of a police station and are refusing to allow access for someone they think should be taken to custody?
- The inspector’s authority is required, by law – no authority given, no using police stations for that person.
- Of course, the police and NHS should be discussing things, communicating and exchanging information and concerns to allow a swift pathway to be identified that all are happy with. Things to consider, include –
- Are the NHS pushing for a police station because they have genuine fears about their ability to manage challenging behaviour in someone who is agitated and distressed? – perhaps the inspector or sergeant having a word and committing to police officers remaining in the NHS Place of Safety would suffice to overcome that fear?
- What if the grounds for searching someone are not met but the Place of Safety insist upon a search?
- It is worth explaining that under s32 PACE (search upon arrest) and the new s136C MHA (search after detention under ss135/6) that it is not a blanket power of search, that each search must be justified and that the grounds for doing it are far higher than speculation or suspicion someone is carrying an item.
- All searches under either provision require ‘reasonable grounds to believe’ the person is carrying an item for one of the purposes specified – this means you need to be 7 or 8 out of 10 certain you’ll find whatever you think you’re looking for.
- What if the 24hrs runs out whilst the NHS are still looking for a bed?
- The person must, by law, by released from detention if no MHA application has been made which allows further detention. As most of these situation will occur in an NHS Place of Safety, I would make sure I was telling the sergeant or inspector when we hit these milestones: 12hrs, 18hrs, 21hrs, 22hrs, 23hrs, 24hrs and seeking their support for a contingency plan!
- Sergeant / Inspectors: I’d be escalating to NHS managers from 18hrs onwards and making sure they realise they cannot rely upon the police to be involved in ongoing detention after 24hrs; that the situation of ‘no beds’ shouldn’t emerge; they should look at s140 MHA and s13 MHA in this context and remember that detention beyond 24hrs could violate Article 5 of the ECHR. Press for urgent resolution and escalation by them to CCG on-call directors around beds, etc..
- This is all subject to the 24hrs limit unless it was extended up to 36hrs under s136B – if an extension has been authorised, then detention may continue until then, when the same considerations will apply.
These are jut some of the ‘what if’ questions: if you have others, please leave them in a comment, below and I’ll answer them if I can by adding to this post. It’s clear just from paying attention on social media that all areas are not going to get this right all of the time from 11th December. Some areas have particular issues (like where to take children) and others may just have occasional capacity problems. Given the restrictions under the ‘old’ system will almost completely vanish, identification of a Plan B and the knowledge required to activate and navigate through it, will be crucial.
This stuff isn’t going to be hard in theory: it’s going to be hard in practice so take the time in advanced of December 11th to get your head round both Plans!
Winner of the Mind Digital Media Award.