Amongst the recent batch of of Coroners’ prevention notices from inquests which were updated to the Chief Coroner’s website, was that for the sad death of Daniel Clements. Daniel had been detained by the police under s136 of the Mental Health Act 1983 and assessed by a doctor and the Approved Mental Health Professional (AMHP). Having determined that Daniel did not have an “acute mental illness”, despite ongoing claims he was “always suicidal” and noting that he was prescribed anti-psychotic medication, he was discharged from detention without being sectioned under the Act.
He subsequently died by suicide, leading to the inquest this summer and I can’t imagine what those who loved him must be be going through, knowing he was assessed shortly before he died. My condolences to them all.
Amongst several areas of concern, HM Coroner in this case has asked —
“The Secretary of State for Health and Social Care is asked to consider whether an extension to the Section 136 Mental Health Act 1983 power is required in order that a person such as Mr Clements could be detained for a few days in order to help him through a period of crisis. In this period a multi-disciplinary meeting involving the family, social worker, GP and psychiatric specialist might devise a plan to combat the social problems which otherwise devour the time of healthcare professionals without any conspicuous gain.”
PURPOSE OF SECTION 136
As things stand today, the purpose of s136 MHA is to allow examination of the person detained by a registered medical practitioner (preferably, “s12 approved”) and to be interviewed by an AMHP and for any necessary arrangements for their treatment or care – s136(2) MHA. The period of detention is 24hrs to allow for this, extendable to 36hrs if the assessment had to be delayed because of the condition of the person. This usually refers to delay due to the need for A&E treatment or because of intoxication by drugs or alcohol – neither were relevant in this case.
Those who had read this blog for some years will know that in 2017, detention under s136 MHA could last up to 72hrs and this was reduced for a number of reasons but it included a need to hold people for less time so that someone detained MHA by the police could not be held for three times the duration of someone who had been arrested for a serious crime. The argument went, that arrangements for treatment or care should be possible within 24hrs and services should adapt to the shorter timescale because it was the will of Parliament and Government at the time – no doubt, people now will have their views about that belief.
But the purpose of s136 remains untouched: to arrange assessment by professionals who are both clinical and social care oriented, to identify what kind of unmet needs a person may have and make arrangements for them.
NOT ACUTE
We know those who assessed Daniel were aware of background of mental illness because the PFD notice makes mention of his medication for a psychotic condition and it notes he was not suffering an acute mental illness. It fails to state he was not mentally ill at all. The proposition to extend s136 to allow for a few days of multi-agency reflection about how best to assist someone who is suicidal but not acutely ill is interesting. Some might argue that s2 MHA covers this – you may be ‘sectioned’ if you are suffering a mental illness of a “nature or degree that warrants detention of the patient in hospital for at least a limited period” and that “he ought to be so detained in the interests of his own health and safety”.
Now, we could get complicated in theory about whether a mentally ill patient with a psychotic condition who is suicidal does, in fact, meet the ‘nature or degree’ criteria because we see all kind of debates about what that means in practice. Whatever the answer, we know it will be a subjective one to at least some degree. But take ‘nature or degree’ together with ‘in the interests of his own health and safety’ and you start to build a picture. Some may argue the assessment is suggesting that the claimed suicidality is not connected to the mental illness, that it results for example from social circumstances or difficulties in achieving support. Of course that may be true, but whether that can be confidently known in a s136 assessment which typically lasts under an hour, seems unlikely.
Of course, we know plenty of people meet MHA criteria but are not admitted to hospital because alternatives to hospital admission are available which negate the need to act so restrictively and often that is because their unmet needs are about issues which won’t be helped by hospitalisation. But that is obviously not always the case: sometimes there will be a need to act immediately to prevent a serious adverse outcome, such as serious self-injury or death. I make no suggestions these calls are simple and it’s certainly not obvious from a three page Coroner’s report – this post is more about the questions which arise from the Coroner’s area of concern on s136.
LEGAL REFORM
What I did wonder, though, is whether legal reform is needed to achieve the objective?
Firstly, it would change the scope and purpose of s136 MHA. The argument is not just that detention becomes possible to arrange a doctor and an AMHP, but that it may be further extended to allow for a full, multi-agency meeting, presumably whilst the patient remains detained in an A&E department or Place of Safety by the police for “a few days” to convene that meeting. Secondly, it’s arguable that the law currently allows for what is intended: a limited period of admission whilst suicidal ideation abates and a more comprehensive assessment is achieved of what would support the patient, during which time they are not detained in an A&E department of Place of Safety by the police.
Finally, do we really want an urgent mental health assessment process hanging on the willingness or ability of the police to initiate use of a legal power? – other professionals have powers when their concerns are clinically focussed and whilst the system allowing for that in practice is a different thing, we might wonder if such practicalities should interrupt the principle at stake. This post hints at a view we need to reality check what may be possible in principle whilst it may not be possible in practice but we also know this from other kinds of examples and that may be what needs fixing? Psychiatric inpatient beds in the country are under intense pressure, frequently in short supply and delays in identifying an available bed for an inpatient can lead to significant problems. But that just brings you to the discussion of whether (legal) form should follow function, or vice versa?
Do we want legal reform of a section of the MHA to allow for something already possible in principle which, if changed, would be a non-ideal, more restrictive way of managing a vulnerable person at risk; or do we want to work on reforming the ability of the system itself to absorb that demand so the person at risk has access to timely, relevant mental helath care in the least restrictive, least stigmatising way? It seems to me that is the choice presented by this suggested reform.
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, 2022
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 – www.legislation.gov.uk
Mental Health Cop 