The Government has today published its White Paper on Reforming the Mental Health Act 1983 (MHA) —
This publication follows the report of Professor Sir Simon Wessely in 2018, after an independent review of the Act. It’s 184 pages long and it covers a lot of ground, some of it surprising, some of it not. The UK.GOV website also has a host of other formats, inc easy-read, executive summaries, Welsh language editions and so on. It also contains an opportunity to respond to the White Paper and to influence any Bill that may be drafted and introduced to Parliament – this consultation continues until 21st April 2021.
This post is restricted to the police-related aspects only, for your information and consideration. For posts on non-police-specific issues within the white paper, see later posts. For now, I just want to highlight five issues —
- Legislation to end all use of police cells as a Place of Safety under the MHA by 2023/24.
- Revision of s5 of the MHA, to allow for detention by healthcare staff in an Emergency Department
- Reform of s35/36 of the MHA, to allow Magistrates to remand mentally unwell defendants to hospital at first appearance
- Section 140 MHA
- Conveyance after use of s136 MHA.
PLACE OF SAFETY
This one is extremely welcome, in my view: a total legal ban on the use of police stations to hold those of us who are detained under s135 or s136 of the MHA for assessment of our mental health. I know of no convincing reason whatsoever why this (medieval) practice should continue, whereby people who are not accused of any crime whatsoever can be goaled alongside burglars, rapists and shoplifters until we’ve made healthcare decisions about their wellbeing. We know from those who have experienced this it can be utterly traumatising, we also know it has led to legal judgements in human rights cases and we know that all the justifications in the world why those rare cases of patients who are “violent” fall foul of our society’s basic expectations that seriously unwell people be removed to healthcare settings, because extremely agitated and challenge in behaviours can (and often do) have clinical accusations or complications.
Two issues to keep an eye on: current law means the use of custody should already have been almost entirely eradicated (and if it’s not happened, I’d offer the personal view that we’re not focusing closely enough on the statutory regulations that now govern use of custody), but it will also mean those who commission healthcare services need to think about rising demand. Use of s136 MHA was around 18,000 in 2008; it’s now over 33,000 – the background to rising usage is complex and multi-factorial. It will need understanding if the NHS is to have capacity to handle those detained under the power.
Finally: I’m keen to learn how the issue will be resolved relating to whether or not the police must remain in that healthcare setting throughout the entire duration of any assessment. Currently national guidance, the Code of Practice and the law collectively means the police are not legally required to do this and should not be asked, but we now local practices vary and that this specific issue is perhaps least well governed and trickiest to resolve. There are answers to it, if people want to find them.
REMAND FROM COURT
If a person is arrested for an alleged offence that is at the more serious or complex end of the spectrum whilst they are also seriously and acutely mentally ill, how should the various obligations to investigate crime and bring offenders to justice be balance with the obvious need to assess people’s health and, where necessary, admit them to hospital under the MHA? There can be big difficulties making “the system” work when it comes to the decision about how someone leaves the police station – should someone be charged with an offence now and healthcare later (potentially via prison), should they be ‘sectioned’ now and the CJ system kick in later, if necessary? We know that in some areas, health professionals are reluctant to receive patients under the MHA after offences because that area will not admit patients to normal adult MH wards after serious offences and medium secure units won’t admit unless the person has been charged. (It should be borne in mind, non-admission to secure care unless charged is a NHS policy issue, not a legal issue – there are cases of patients being sectioned under s2 or s3 MHA to a secure unit. Ian Huntley is perhaps the most notorious of them.)
One barrier in these issues is the fact that Magistrates can’t remand patients who have been charged with an offence to hospital under the MHA, unless or until that patient has pleaded guilty or been found guilty. Patients charged with “indictable-only” offences do not enter a plea at their first appearance, so even if they were inclined to plead guilty to an offence (unlikely) they still wouldn’t be asked to do that until their second court appearance, at the Crown Court. This means it is sometimes thought inhumane to prosecute someone who may need admission, just because the local NHS policy is decline admission to secure care unless charged; but where all concerned know that prosecution to court means the Magistrates may end up remanding the person to prison — it’s complex stuff!
The proposal here (which I’m going to loudly shout was one I took to Sir Simon’s review and pointed out) is that sections 35/36 MHA be revised to allow Magistrates the power to remand to hospital. This would mean it is an option (not an obligation) to charge a person with an offence where it is more serious, to then have the court consider their first appearance alongside the fact there are medical recommendations for MHA admission, and remand the person to hospital, without them seeing a prison. Easy! … if the secure system is prepared for the reality of what those numbers may look like, given how little detail is know about these kinds of decisions currently.
Where someone attends A&E and they are not under arrest or detained by the police, there have been many cases of individuals leaving before proper assessment or treatment or MHA procedures being completed and resulting tragic circumstances including suicide. It has long been a point of debate amongst ED staff an their MH trust and police colleagues about powers available in ED to manage such situations where staff fear someone will leave. No doubt at all, this area of law can be opaque even to legally qualified professionals but having said that my own experience over the years has been that many just deny there is any legal power at all to stop someone leaving an ED, even where we fear the may come to very serious harm. << This isn’t right, but I conceded it’s complex and that staff get very little training.
When the Mental Capacity (Amendment) Act 2018 comes in to force, it will amend the Mental Capacity Act 2005 and section 4B MCA will see its wording changed. This change is intended to do a few things, one of which is clarify circumstances in which anyone may urgently detain someone over 16yrs of a age who lacks capacity. I covered the detail of this on another post, if you need more detail.
The quite unexpected proposal in this White Paper is to expand the scope of s5 of the Mental Health Act 1983 to Emergency Departments. Section 5 is a pair of holding powers (one for doctors, one for MH / LD nurses) which can be used to keep someone in hospital until an MHA assessment can be convened. Currently, s5 cannot be used in an ED because it only applies to inpatients of the hospitals and ED is, essentially, a massive outpatient clinic, in legal terms. Sir Simon’s review advised against expanding s5 to EDs, but the Government seem to take a different view and that will be interesting to watch. My main query on ED use of either the revised MCA or MHA if / when they take effect is to wonder who will do the detaining, given the background in the white paper is to hint away from reliance on the police. It will mean acute healthcare providers having to think about who gets coercive or I can the 999s ringing any way.
My favourite section of all: the widely misunderstood s140 MHA! (Some professionals and areas still haven’t heard of it, nevermind understood it, whatever it means.). I mentioned this section in my last post covering the CQC Review of the MHA Code of Practice because s140 has been directly linked to two coroners cases in the last few years where individuals died because of a difficult in ensuring timely admission for patients who it was suggested urgently required it.
In fairness, the White Paper doesn’t say much on it and it doesn’t propose revision of the law at all. It just notes that “the responsibilities of NHS commissioners under section 140 must be discharged more consistently and more effectively, so that emergency beds are available.”
The White Paper suggests this will be more closely monitored, but given that a) it’s the law; b) it’s in the Code of Practice to the MHA; and c) coroner’s have more than once linked ineffectiveness or non-compliance of arrangements purporting to exist because of it, it’s badly in need of raised awareness and accountability around its application to the real world to prevent deaths after contact, inaction or human rights violations in the courts because of an inability to admit people in a timely way.
There are a number of references within the White Paper to conveyance, after the use of s136 in particular, stressing the need for ambulance (or other health) conveyance. I know the ambulance service is under a lot of pressure currently, but it’s worth remembering (and the White Paper reminds us) that conveyance after use of s136 is still mostly done by police vehicle, notwithstanding what the Code of Practice says. This may sound a little more cosmetic than some of the other, perhaps more substantive issues listed above, but don’t doubt that this matter is still relevant to cases progressing through various UK courts, currently. The Code says what is says for a reason – for a number of reasons, actually.
There is a lot more to the White Paper, I’ve only skim read it to get out this update and I’ll read it more thoroughly in the coming week. Accepting there is still parliamentary process to unfold over the next couple of years to make final decisions about what will or will not be revised or introduced to the Act itself, the above issues are and will remain issues and there is plenty that individual professionals and agencies could do to prepare for any change and ameliorate the ongoing impact of insufficient legal knowledge where it’s needed. For example, there are some answers to the “people leaving ED before treatment” question, but they can only be offered if people know about it.
As ever: there is so much we could achieve (and quickly) if we had better awareness of the law and that stuff is available for free on the internet. Some (but not all) Good luck, people!
If you want to give your view to the Government on the proposals in this White Paper, you can so until 21st April 2021.
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, 2021
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