UPDATE: the Coronavirus Act 2020 is now law: it received Royal Assent this afternoon (March 25th) although Schedule 8 of the Act (the MHA amendments) has not yet been invoked by Government, so this post is merely what may happen in the future and until then, the law remains unchanged.
Any professional operating around these provisions should satisfy themselves after reading this of whether it has been put in to effect, after this post’s publication — the full text of the final Act is available here.
The UK Government has published draft emergency legislation to Parliament which will temporarily change aspects of the Mental Health Act 1983, including some parts which affect the police and the criminal justice system. It’s all part of the COVID-19 response, in the Coronavirus Bill 2020. This short post summarises what appears to be coming on the police-MHA changes which were also covered on social media by charity heads and by health journalist Rebecca Thomas from HSJ —
In no particular order of importance —
- One Doctor to ‘section’ a patient – where mental health services wish to ‘section’ someone, the Approved Mental Health Professional will now require only one doctor’s medical recommendation, potentially similar to the current s4 MHA. But technically speaking, the proposal states that AMHPs are still at liberty to arrange a Mental Health Act assessment in the normal way, but can dispense with the requirement for a second doctor, if necessary. As such, section 4 of the MHA is, in effect, suspended until these temporary changes end. As things stand today, someone can only be ‘sectioned’ if two doctors provide a mediacal recommendation to the AMHP who makes an MHA application to hospital.
- This proposal is actually very similar to the law as it stands in Northern Ireland, which has been in place for years: it is standard practice under the Northern Irish Mental Health Order 1986 to involve a second doctor as part of the process only during a fourteen day period after admission. In Scotland, a single doctor can admit a patient under an Emergency Detention Certificate even without reference to a Mental Health Officer (Scottish equivalent of an AMHP.)
- The timescales for s135/136 MHA are being extended – everyone detained in a Place of Safety will now be able to be held for up to 36hrs, pending assessment and completion of any arrangements for their treatment or care. The extension of detention in s136B is untouched in terms of its duration (still 12hrs extension) but it obviously kicks in at the 36hr point now, rather than 24hrs before. So the maximum overall timescale in a Place of Safety will be 48hrs. The extension can still only be relied upon if the mental health assessment is delayed because of the condition of the patient (ie, most usually: drugs, alcohol or necessary physical treatment as a priority).
- Holding powers under s5 for doctors and nurses – these are being extended: a doctor holding someone under s5(2) MHA may soon hold them in hospital for 120hrs (5 days) rather than the 72hrs (3 days) previously permitted. Any registered mental health or learning disabilities nurse holding someone under s5(4) MHA will be able to do so for 12hrs, instead of 6hrs. This provision will still ONLY apply to hospital inpatients – and it remains the case that doctors and nurses in Accident & Emergency Departments cannot use powers under s5, at all.
- Timescales for detention in hospital under ss35/36 will be temporarily abolished – and please note: I haven’t missed a number ‘1’ here in this heading, I’m NOT referring again to ss135/136 (in Part X), but to ss35/36 (in Part III)! This will have less day-to-day impact on frontline mental health services and the police because it’s entirely about criminal justice & mental health at the court stage of the justice system. Previously, patients remanded to hospital by the criminal courts could only be held for twelve weeks. That will apparently be temporarily suspended and patients held until the court brings them back, without further hearings to keep re-authorising twelve-week blocks.
- There are some other amendments – you may wish to read those for yourself (see Schedule 7 of the draft Bill, on p90) but I’m not going to cover them in any detail as they largely don’t affect the police and are to do with the workings of hospitals and / or the criminal courts. There are also similar amendments to the mental health law of Scotland and Northern Ireland. This post relates to the changes as they effect England and Wales but schedules 8 and 9 of the draft Bill cover changes to the equivalent legislation in elsewhere in the UK, along roughly similar lines.
For what my view’s worth, this has obvious resource implications for the police, not just around the extension of the timescales for s135/136 MHA provisions –
- We regularly see s136 time-limits exceeded now – forces can start escalating their concerns as the 24hrs mark approaches, but will be prevented from doing so until 36hrs (or 48hrs if an extension is granted), another full shift and more of operational officers’ time if they have had to remain in the health-based place of safety.
- Regardless of the rights and wrongs of police remaining in a Place of Safety and being unable to handover to NHS staff, it seems less likely in the future they will be able to do so, regardless of what s136 guidance from the Royal College of Psychiatrists states.
- I’ve even had private social media contact from some frontline officers who are stating that in their areas, the mental health unit Place of Safety has closed, in effect, with direction that all people detained under s136 MHA should be taken “to hospital”, which I presume means an Emergency Department.
- What ED think about this, I’ve no idea but I can think of reasons why this will be very problematic for them at the moment!
- We are already hearing from mental health and learning disability nurses that someone of them are being posted to critical healthcare infrastructure to support COVID-19 patients, so may be less available for things the NHS can effectively outsource to the police. Other examples include a suggestion that some 24/7 crisis teams are in effect, closed down.
- I’ve also heard from a police source that their street triage team is under threat, at least temporarily, because the nurses may be redeployed elsewhere within MH or NHS services.
- Remember: nothing in law obliges the NHS to take over responsibility for the detention of anyone detained and removed by the police under s135/136 – and it never has obliged this.
- If I were a Chief Constable, I’d be preparing for the potential that any previous agreement to handover someone removed under s135 of s136 will be unilaterally withdrawn, if it were there to begin with.
- I’d also be conscious that contingency around the forthcoming period may involve quite massive increase on demand in policing and there is just as much of a query about the capacity of the police to be providing extended security for low risk detentions under s136 MHA.
- If I were a frontline police officer (and I am, of sorts, working 24/7 in a force control room as in what many forces call the ‘FIM’ role as firearms commander), I’d be making sure I knew what my legal limits and obligations were around things like attending MH crisis incidents in private premises and in what I must do if I’m connected to a policing incident where someone needs to be ‘sectioned’ and there is no bed.
- That situation isn’t going to get any easier any time soon and it may well be harder to secure assessments with the pressure we’ll see on AMHPs and DRs who are able to remain at work.
The fact that these other legal timescales (for things like s5) are being extended or abolished and the reduction in the need for two doctors’ medical recommendations to get someone ‘sectioned’ is a direct reflection of the fact we think it will be harder and harder to secure AMHPs, doctors and nurses to perform MHA functions within the existing timescales. The Royal College of Psychiatrists has welcomed this package of measures and social media is giving rise to professionals saying this sort of change is required, as NHS staff and AMHPs also succumb to illness and requirements to self-isolate, for them and / or their families.
Where it is hard to secure professionals for MHA functions, it has always been a contingency to remit or refer to the emergency system. I don’t see that changing and can only see it increasing as we move to greater social coercion for public health reasons.
I will revisit this post once more is known. Good luck, everyone!
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 OBE, 2020
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