This post is done on request: to cover a few issues about the use of force where section 136 of the Mental Health Act (MHA) is being considered or used, including powers that may be relied upon to initially manage a situation where immediate intervention is required and how that may fit in to considerations required by law about the need to consult with healthcare professionals about the use of the s136 power.
Some background points —
- If police officers have used s136 MHA, they have effected an “arrest”, in law — not an arrest for an offence, but it is still an arrest. For this reason, s117 of the Police and Criminal Evidence Act (PACE) states officers may use reasonable force to give effect to the arrest decision. None of this means that we should be verbalising the words arrest to the person, because it has obvious implications. Most people think “arrested” does mean “arrested for an offence” so it’s best to avoid confusion given there is no legal requirement to use that precise word – you can just tell someone they are being detained. But officers knowing the legal pedantry about arrest is relevant to them understanding that s117 PACE applies, as well as 32 PACE (power to search after arrest) to ensure safety.
- Other powers to use force do exist and nothing prevents officers using them prior to thinking about use of s136 — if officers turn up to a person in crisis who is breaching the peace, threatening others or committing an offence (which could be as simple as walking in the road amongst traffic, for example), there are various common law powers to prevent immediate harm and s3 of the Criminal Law Act 1967 allows officers and anyone else a power to use reasonable force to a prevent crime. Nothing prevents removing an immediate risk under these powers, calming a situation down and then deciding what to do next.
“WHERE PRACTICABLE”
The law states that where officers are thinking about use of s136 MHA, they should consult with a healthcare professional “where practicable” prior to their use of the power. The healthcare professional must either be a doctor, a nurse, an Approved Mental Health Professional (AMHP), a paramedic or an occupational therapist but the law does not state the nature, purpose or content of the consultation, but presumably it is something about allowing the police to make a more informed decision about whether to remove someone to a Place of Safety for assessment by mental health professionals. It is a police decision, in the end and healthcare professionals should not be seeking to make a proxy decision, especially if they are not present at the scene because that’s a legal matter for the police — they should be providing information to help with that decision.
This requirement to consult where practicable raises an interesting question, if not a difficult one: s136 is lawful only where the officer believes the person to be in “immediate need of care or control”, etc., etc.. How immediate can the need really be, if we can afford to pause the management of the incident and either make a telephone call to a relevant professional or await their arrival at the scene of the incident? In some areas where street triage schemes have turned up on scene to assist for this purpose, it can take at least 30 minutes (and sometimes double) for their decision to attend to result in something and it’s going to take at least quarter of an hour to have a phone discussion.
Is the person detained during that period and / or what is the legal basis for the use of force to keep them so detained?
This isn’t pedantry: where police officers have detained people for just a few minutes without arrest, detention or some other power (like s3 CLA, above), there have been findings against the police of false imprisonment and subsequent civil liabilities. I know of a case in a police force where someone was detained in the back of a police car for 45mins pending consultation with street triage and the officer involved was given ‘advice’ by their Professional Standards Department after the person complained about that period of detention. So this is not hypothetical and it carries implications.
USE OF FORCE
Where officers have arrived on scene of a mental health crisis and think there needs to be an immediate coercive intervention, done proportionally to keep someone safe, there must be a legal basis for it. If it is common law or s3 CLA to remove someone from a road or a height and the situation calms down and the person agrees to remain with the officer whilst consultation takes place, fair enough. But they are free to leave that situation at any time. If the officers are completely uncomfortable with that and have decided the person cannot be allowed to walk away because of concerns about what will happen, they should consider whether consultation is really “practicable” and understand that they have, in effect, already detained the person. It mental health law, this could be thought of as a kind of de facto detention – detained in fact, albeit not yet detained in law. Such things are cautioned against in the Code of Practice and flagged by the CQC as bad practice so the s136 should be formalised before arbitrary detention amounts to a false imprisonment.
My own view has always been to wonder about whether the grounds for s136 are really met if we really do think that there is time to wait for an NHS response or make that phone call whilst the person remains at liberty to walk away? Once you get through to someone who has access to patient details, medical records, etc., it’s going to take them several minutes to understand what’s happened and what you need to know and several more read records, understand what’s relevant within them and relay that back to you in summary form. If throughout, you’re already resolved that the person is not free to go, then for me, they’ve been detained already and should be afforded the honesty and the rights that comes with being detained s136 MHA. If you really do think the person is at liberty to leave whilst that consultation is ongoing and that you wouldn’t be stopping them from walking away if they wanted to, perhaps the grounds for use of s136 MHA weren’t met in the first place – in such a situation, how would you argue there is an immediate need for care or control?
But ultimately, the fact that you turn up and form an immediate assessment force is necessarily unavoidable, this doesn’t mean you’ve already used s136 and must proceed with that. You could rely on common law or s3 CLA where relevant and if the situation calms now the police are there and restraint ends, you’ve restored a non-coercive situation and can now think about consultation with another agency, whether or not s136 MHA ends up as the outcome. No doubt, though – this is difficult stuff, because we need to make sure s136 is not over-used but we also need to make sure that people are kept safe from immediate risks and that any decision about someone’s onward care is based on the best available information.
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, 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 