Section 13 MHA

I suspect, in just some ways, that section 13 of the Mental Health Act 1983 is the section that they really, Really don’t want you to know about, esp if you’re a police officer or paramedic who finds yourself dealing with mental health emergencies that may require consideration of using legal powers the police don’t immediately have. It’s a slightly obscure section at least in the sense of not being openly referred to as much as other sections of the MHA in common parlance and in the sense that people don’t always seem to know what it actually says!

I would nonetheless argue: it needs knowing by those who have ever found themselves in private premises with a mental health emergency from which they don’t feel able to just give some ‘signposting’ advice, or make referrals and walk away. I’ve recently come across advice from street triage professionals to cops at jobs in private premises where s13 duties and AMHPs / Doctors have gone *entirely* unmentioned despite that being precisely what the judge in the Sessay (2011) case said was the statutory route to interfering in the autonomy and liberty of a vulnerable person in their own home.

So! … we’d probably do ourselves a massive favour if we start with Section 13 itself and read it (again) –

Section 13 – Duty of approved mental health professionals to make applications for admission or guardianship

(1) If a local social services authority have reason to think that an application for admission to hospital or a guardianship application may need to be made in respect of a patient within their area, they shall make arrangements for an approved mental health professional to consider the patient’s case on their behalf.

(1A) If that professional is—

(a) satisfied that such an application ought to be made in respect of the patient; and

(b) of the opinion, having regard to any wishes expressed by relatives of the patient or any other relevant circumstances, that it is necessary or proper for the application to be made by him, he shall make the application.

OPENING CAVEATS

The bold text at the end is my emphasis. I want to really ram home two particular words in that section: “duty”, in the title of the section itself and “shall”, towards the end.

  • A duty is an obligation – it’s not an option or an opportunity – when you have a legal duty, you must discharge it according to the Act.
  • The word ‘shall‘ is a directive – it means you will do this thing once you are satisfied the preceding criteria are applicable to the situation.
  • Section 13 itself has more sub-sections to it, of course – you may read them on the Government legislation website; and it is further qualified to some degree by the Code of Practice to the Mental Health Act 1983 (chapter 14 in particular); but these do not substantially alter the imperative to consider the need for assessments and to make applications when the grounds are met and the AMHP satisfied.

It is the debates which flow from these issues that I want to cover, but always with these over-arching points in mind:

  • If the AMHP service is aware that an application “may need to be made”, then they shall arrange for an AMHP to consider the patient’s case.
  • By extension this means considering the need to convene a Mental Health Act assessment.
  • It’s crucial that this point is understood: this is not a duty to undertake a Mental Health Act assessment; it is a duty consider the need for one.
  • But having considered the need, an AMHP may say that a MHA assessment is not required; or is not yet required – these are two different things.

Of course, the AMHP who considered the case is then accountable for the decision they take. I would argue that difficulties in undertaking assessments because of AMHP numbers are matters for escalation within the AMHP service to their managers.  Difficulties faced by AMHPs in securing support from doctors, for conveyance from the ambulance service or even support from the police service are matters for escalation with partner organisations – they are not reasons to abandon the decision to convene an assessment thought to be required. These are real problems for AMHPs, of course – I’ve said before that AMHPs have my utmost respect and my deepest sympathy: theirs is a thankless task I wouldn’t do for three times the salary and annual leave they actually get, quite honestly.

However, you need only see inquests over the last few years of Michael Thompson (London, 2016) or Colette (Bedfordshire, 2019) to see examples of cases where an AMHP service has decided against undertaking an assessment OR has not reacted to the request for an assessment, to see examples of how very untoward outcomes can arise from the consideration of this legal duty or a failure to react to it accordingly. You can also see inquests like that for David Stacey (Leicester, 2019) where disasters can arise from AMHPs being unable to complete applications they are satisfied are required, primarily because of NHS bed problems. It’s too easy to understand these problems and then look to the emergency services as a safety net when, in reality, those services may lack powers by which to plug the gap and where the real problem is an inability to respond accordingly to demand and manage it according to the law.

PRIVATE PREMISES

Section 13 isn’t about specific types of incidents where MHA assessment may be required – it’s not specific to particular locations or context: it is a general provision around the consideration of the need for assessments and the completion of applications in all situations where the need arises.

But therein lies the two parts of the provision, as another reminder to ram the point home:

  • The need to consider a case where an application “may need to be made”
  • The duty to complete applications where the grounds are met.

Circumstances in which these duties arise are wider and more varied than those situations faced by emergency services considering urgent pathways but the questions for #Team999 around section 13 usually arise when attempting to engage the AMHP service either in private premises calls or where assessments lead to decision to make applications under the Act but where there are no beds. Where other police powers exist, it is far, far easier to consider their application than to start seeking unscheduled input and responses from AMHPs. In further mention of the difficulties for our colleagues in those roles, there are recruitment and retention problems which sometimes mean local authorities have no AMHPs available for twelve-hour stretches of the day. I mean this literally: zero AHMP availability.

And in addition, even if there is an AMHP immediately available, they are somewhat constrained by practicalities beyond their control. AMHPs need one or two doctors in each and every Mental Health Act assessment they convene and we know that some AMHPs have to ring over thirty s12 doctors before one of them will agree to help – yes, really! Even if the doctors are willing and able to muck in, the AMHP will normally need a bed in an appropriate mental health unit or a highly effective, functioning “section 140” arrangement for urgent admission (see the inquest in to the death of David Stacey). So where officers or paramedics are on private premises, the ability to call upon an AMHP-led MHA is influenced by factors way beyond the individual control of a particular AMHP.

But here’s the rub:

This is not the problem of operational emergency crews and it should not prevent them from trying to do what they know, in law, is the appropriate way to safeguarding someone at risk. So contact the AMHP service through your relevant route and let them respond accordingly. Failure to do is a willingness to accept responsibility for the difficulties the emergency services didn’t create.

NO BEDS

It’s been fashionable recently to blame politics over the last ten years for the fact that we have what some people consider to be mental health bed ‘crisis’. Regardless of reports by the Great and the Good in to psychiatric bed provision, reviews of laws and so on, it’s undeniably true we see too many situations where beds are required and the system claims they have no beds. Whatever the reasons for this being claimed at 9pm on a rainy Tuesday, it doesn’t alter the reality that where beds are required and not obviously available, our AMHP colleagues will struggle to make an application under s13 even if they accept the grounds are met. And we’ve discussed all of this before, haven’t we? AMHPs will quite fairly point you to paragraphs 14.XX of the Code of Practice to defend not making applications which are required because the Code states they should not make applications to hospitals unless it is confirmed there is a bed available and the hospital willing to receive the patient.

Sounds fair enough – but we know now that David Stacey is dead in part because he needed to be kept safe and this didn’t happen because of a “breach of statutory duty” (a phrase from the Coroner’s Preventing Future Deaths Report). This duty included a failure on the part of the CCG to specify hospitals to the AMHP service of hospitals which could receive patients “in circumstances of special urgency.” David needed urgent admission in the opinion of expert witnesses at the inquest and there was no viable route to this, via arrangements put in place in furtherance of the duty under s140 MHA. This amounted to legal neglect in the opinion of the jury and contributed to David’s death. The police service were legally unable to do anything to safeguard David, who was in his own home – so it really did come down to whether or not the AMHP was able to discharge their s13 duty that they “shall make the application” because of failure to comply with s140 in a way that was practical and viable in the real world at 6am.

The ‘no bed’ problem is immense – there has been public comment by senior officers, including the NPCC lead on Mental Health, Chief Constable Mark Collins about the difficulties and we all remember the various tweets we’ve seen around the country where exasperated senior officers have resorted to social media because their attempts to escalate to senior NHS managers have got nowhere. Various estimates have abounded, but it seems likely that we have many thousands of situations where vulnerable are either left at risk or unlawfully detained in A&E, police custody or s136 suites whilst the bed situation is unravelled. We know that some of those detentions have lasted as long as 5/6 days and some involved detention of children. I’m just waiting with considerable trepidation for the incident where someone is seriously injured (or worse) in one of these situations to then watch with horror as investigators, regulators get busy about what was going on legally.

FRONTLINE EMERGENCY CREWS

This is my point for operational police officers and paramedics:

  • You did NOT create this problem!
  • You should not be made to be responsible for it; or  to feel responsible for it:
  • Where you are managing a situation involving mental health crisis and you feel MH or MHA assessment is required (for example, because officers would be considering the use of s136 MHA if they were in a place where they could lawfully use this power), you are absolutely entitled in law to make your referral towards the AMHP service.
  • I say ‘towards’ because you may or may not be able to speak to them directly – there is appropriate ‘gatekeeping’ in some areas of routes to restrictive interventions: you may have to go via a GP or CrisisTeam to do this.
  • But where you have tried to do that and failed; or been unable to secure other support, you remain entitled to explain to the AMHP service that you believe the grounds in s13 MHA may be met for them to consider.  Don’t say “grounds are met” – that’s their decision, not yours!

Having recently provided some CPD input for paramedics in the West Midlands, I emphasised this point of law to crews and had two emails within a week to say what an impact it had in resolving situations of risk. Didn’t always resolve things as fast as would have been liked, but it started the ball rolling towards a solution which the crew felt would otherwise not have occurred.

Section 13 MHA: read it, read it again to understand it and then put it in your legal tool bag – it might just be the one they don’t want you to know about!

Just as AMHPs and paramedics can ask the police to consider the application of s136 MHA and to instigate its use where necessary, the police, paramedics and relatives can ask the AMHP service to consider the application of s13 duties to situations – either in terms of considering the need for an assessment; or of making applications under the Act where the grounds exist. Problems faced by the AMHP in doing this are professional issues for them and their bosses or the NHS. They are not reasons for frontline police officers and paramedics to be left in legally or clinically invidious positions whilst under pressure not to do something which is perfectly permitted by law and which may in fact be the only solution to a situation, whether rightly or wrongly.


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


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