Northern Ireland

This week I spent some time in Northern Ireland, a place I’d never been before. The visit was part of the Royal College of Psychiatrists independent commission on acute adult psychiatric care and it gave me an opportunity to visit mental health services in Antrim before a dash into Belfast city centre for the commission’s fifth meeting. I thought Northern Ireland was a beautiful place: apart from the spectacular views of a major cruise ship leaving Belfast docks and heading out into the Irish Sea as my flight began to turn over the city and prepared to land, the view over Antrim towards Lough Neagh was also incredible! More importantly still, I was struck by how friendly the people were: I learned almost as much about mental health in Northern Ireland from the taxi driver who helped me to the hotel than from anyone else and the NHS staff and patients at the hospital were beyond welcoming – I really learned a lot.

I had written a short paper for the commission’s meeting on some work I’ve done in policing that relates to hospital admissions  – those of you who have followed this BLOG for a while or have heard me discussing these issues know that I’ve argued for many years that bed management problems can often give rise to illegal detention in police custody and to human rights violations. I’ve also argued that we take insufficient regard of s140 MHA in how mental health services are commissioned. It was therefore with some timing of spectacular irony that I met mental health professionals in Northern Ireland who caused me to think further about these legal issues only an hour before presenting my work to the Commission and encouraged me that I’m not necessarily banging the wrong drum.

Northern Ireland has seperate mental health legislation: the Mental Health (Northern Ireland) Order 1986. In many important respects, it reflects the Mental Health Act 1983 which operates in England and Wales although there are some differences and the Northern Irish Order has not been updated since introduced, unlike in England and Wales. For that reason, there are no Community Treatment Orders in Northern Ireland – some would argue that this is a good thing, but I mention it just to highlight a difference. I also learned from various sources that psychaitric morbidity in Northern Ireland is as much as 25% higher than in the UK as a whole, that services end up with around 25% less funding than in the UK as a whole and that day-to-day progress in developing mental health services is often caught up in Northern Ireland’s political situation. Antrim wants and badly needs a new psychiatric facility for which plans are well progressed but it needs approving the by Stormont and you’ll notice there are some problems with that at the moment.


Northern Irish legislation has Orders where the rest of the UK has Acts and they have articles where we have sections: so article 130 of the MH(NI)O 1986 (MHO) is an equivalent power to section 136 of the MHA 1983. Specifically, it is exactly equivalent; containing exactly the same words in a130(1) and we see in s136(1). There are certain subtle differences however: detention under a130 in Northern Ireland can only last for 48hrs, instead of the 72hrs permitted here but elsewhere, the law has significant similarities and there are often identical or near-identical provisions across the countries. What we now refer to as Approved Mental Health Professionals (AMHPs) are still Approved Social Workers (ASWs) – they make applications to hospital for admission, after medical recommendation.

Worth noting that for admission to hospital under Northern Irish law, only one doctor’s medical recommendation is initially required. This results in there being no real equivalent to section 4 MHA: only equivalents for sections 2 and 3. The second doctor only comes in to play after admission –

Article 4 concerns admission for assessment and it requires the patient to be immediately examined by the second doctor who must then furnish a further report if the patient is to remain in hospital for up to 7 days. Article 12 concerns admission for treatment and one difference is that entry to hospital can only occur via Article 4 or after voluntary admission: Article 12 is implemented for a patient who is already in hospital after a period of assessment. Finally, there is an explicit requirement to be declared in Northern Irish law that is not in English / Welsh law: that failure to detain the patient in hospital “would create a substantial likelihood of serious physical harm to himself or to other persons.”


My paper for the RCPsych Commission concerned admission to hospital from police custody and I have done some work at the College of Policing to dip-sample and estimate the number of occasions where custody is relied upon to detain someone who is in need of admission to hospital but where it is argued an application cannot be made for because there is no obvious bed available. We are all familiar with examples of this phenomenon over the last year and some forces are facing this situation several times a week. Only at the start of this week, I was contacted by a force to highlight a detention which had followed from a woman being arrested for a minor offence under public order laws who was acutely unwell and highly distressed. Despite being assessed and deemed to be in need of admission within around 12hrs, it took a further 42hrs or so to achieve her release from custody and admission to hospital.  For various reasons, I just thought about the MS v UK (2012) case when hearing of how unwell she was and no doubt – unlike in that case where the man was originally arrested under s136 MHA – her detention amounted to an Article 5 violation of the European Convention, in addition to the Article 3 violation found in the MS case.

As a reminder: someone becomes ‘sectioned‘ at the point where an AMHP makes an application for someone’s admission to hospital and the same applies in Northern Ireland: legalities under the MHO start when the ASW makes an application for admission. Until such time as an application is made, any detention in police custody that occured prior to the assessment for potential admission remains governed by the Police and Criminal Evidence Act 1984, in England and Wales; the Police and Criminal Evidence (Northern Ireland) Order 1989 in Northern Ireland. So my speculation, based on dip-samples and other ‘anecdata’, is we have between two and three thousand detentions per year in England where applications for admission to hospital cannot be completed within the timescales that govern the custody officers decision-making about the original reason for arrest.

So guess what ASWs do?! – they make the applications to the large acute admissions hospital in the area and convey the patient there.  At the hospital, sometimes with support from the Police Service of Northern Ireland and sometimes not, they then begin the process of juggling patients, spaces, beds and so on. Not ideal, is it?! – not ideal at all.  Neither is illegal detention in police custody and in many important regards it is even less ideal. You see, as I’ve said many times, technical legal arguments about whether you can or cannot make applications whilst there is still uncertainty about the ‘bed’ misses the fact that a decision made NOT to apply for admission once it’s known to be necessary, also breaks laws and rules – potentially it breaks even more laws and rules, each of which are even more important that the rules you’re adhering to by delaying things.


Remember that Acts of Parliament, Codes of Practice, other government or regulators’ guidelines and European caselaw all have various standing and relationships to each other – some are more important than others; some are completely binding and others are not quite so binding. Domestic law must be compatible with the European Convention – this is required by the Human Rights Act 1998.; but Codes of Practice are statutory guidelines issued by a Secretary of State, but we know that they are not, ultimately, binding in all circumstances – you must have a damned good reason for breaching them, but you may do so, as long as you have. We learned that in the Munjaz v Ashworth Hospital case in 2005. But you cannot breach PACE or the Human Rights Act without a risk of legal action against you.

So here some sections on Northern Irish and English/Welsh law that I kept reading to understand why AMHPs in England will argue it is unlawful and not possible to do what ASWs in Northern Ireland argue is lawful and, although inideal, better than leaving a status quo where someone is either left in their own home whilst at risk; or illegally held in a police station –

  • Section 13 MHA – “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. If that professional is satisfied that such an application ought to be made in respect of the patient; and 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.”
  • Article 40 MHO – “It shall be the duty of an approved social worker to make an application for assessment or a guardianship application in respect of a patient within the area of the board or authorised trust by which that officer is appointed in any case where he is satisfied that such an application ought to be made; and he is of 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.
  • The italics are my emphasis, to make the comparison.

“Duty” … “shall” – these words are distinct from others that could have been used and indicate a responsibility and a requirement to do certain things; rather than an option and an opportunity.  Once the AMHP / ASW is satisfied of certain criteria: they have a legal duty.  You can use the links provided in those bullet points to read the more detailed subsections of each provision but you will see that in neither of them are ‘beds’ mentioned, nor the willingness of hospitals to receive patients. I’ve often heard it said that nothing the MHA (and therefore the MHO) obliges the hospital to receive a patient and this is true to an extent: in that such words are not used. You’ll also notice that nothing the in MHA or the MHO outlines that reasonable force may be used to achieve the various objectives and options available to professionals under mental health law: so are you telling me that force can’t be used at all or are we agreeing that certain things about the law may be inferred because they are implied?


Whilst we continue to experience what some are calling a ‘beds crisis’ in acute mental provision, decisions by AMHPs not to make applications after the grounds in s13 are satisfied are also decisions to leave people in the position they were prior to assessment. I have recent examples to hand of where a decision to leave a patient in the community led directly to the commission of a serious offence and examples coming in of people being left in police custody for periods that significantly exceed the limits imposed under law.  So irrespective of your view on technicalities of all this, it also comes down to human rights frameworks and the indignity of rotting away in a police cell pending your admission at some arbitrary point in the future. This is often going to amount to a violation of Article 5, often it will also be a violation of Article 3 (MS v UK) and these are violations in which the AMHP and DRs become complicit if they resort to inaction about bed bureaucracy.

We know that hospitals manage to re-admit patients in urgent circumstances and end up with occupancy levels in excess of 100% with extra staff drawn in, so to suggest it can never happen for a newly admitted patient seems odd and ultimately, the attitude of Northern Irish MH professionals impressed me when the pointed out, somewhat obviously, that they’d rather have to juggle demands in hsopital, perhaps even having to ask the PSNI to help them for half an hour or more after conveying a patient from the police station.  But they were very plain that this was about human rights and dignity: far-from-ideal detention in hospital rather than obviously-illegal and degrading detention in custody.

I don’t think the decision is actually that difficult.

It was because I know that in all important regards the mental health law governing each area is the same that I got to wondering: why do two groups of mental health social workers each think the practice of their colleagues over the Irish Sea is wrong? … they can’t both be wrong!

IMG_0053IMG_0052Winner of the President’s Medal from
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.


You Remember the Concordat?

You may remember the Crisis Care Concordat from early 2014? – very much led by Norman LAMB MP, who was then Minister of State for Mental Health.  It led to a brief bureacracy that drove various meetings, plans and activities: including commitments by organisations to various things including a reduction in the use of police cells as a Place of Safety under the Mental Health Act 1983; a 30 minute response time by the Ambulance Service to detentions under s136 MHA (except in South East Coast Ambulance Service who would prefer to have an hour) and to much better training, data and cooperation across the piste.

The Concordat imposed deadlines which were publically monitored by which areas had to commit to delivering on the principles of the Concordat and then to the development of an Action Plan which outlines how problems, gaps and issues would be addressed. Once the public plan was uploaded on the CCC website, monitored by Mind, that somewhat completed the CCC process. You’ll notice the only thing that wasn’t a part of the CCC process: actually delivering the action plan.  Since the deadline to publish local plans, we’ve had a General Election which has seen a change of minister.  Alistair BURT MP has since written to all the national signatories to the Concordat recommitting the Government to deliver on its principles and encouraging closer cooperation by partner agencies against those local, published plans.

I wrote previously that in terms of accountability for progress, it might have been helpful if the Concordat framework involved a further deadline and another colour on the map – the mapping process is ‘complete’ at the point where local plan is published; not when a local plan is delivered. I welcome the fact that the Government has recommitted to the importance of the project but it might be wondered whether there is now a certain sense of drift. I feel the Concordat is being talked about far less than it was six months ago – perhaps that is because nothing further must happen by a particular time? In November the concluding Summit will be held in London after which it appears to be down to local areas to deliver – or not – on their action plan.


Of course we can point to progress: Street Triage initiatives spreading around the country, ongoing reduction in the proportion of people being detained under the Mental Health Act by the police who go to custody as a Place of Safety and so on. We also know how much there still is to do: the Care Quality Commission report recently published – Right Here, Right Now – highlighted that there is considerable work still to be done about the atittudes of those who work in policing, health and social care towards those in crisis who are all too often battling to access services in a timely fashion.  Next year, the College of Policing will deliver on it’s main two responsibilities from this initiative: new national guidelines (known as Approved Professional Practice) and training packages for police officers and staff of a kind we haven’t had before.

This BLOG is merely intended to remind us that the stuff which sat behind the need for a Concordat hasn’t gone away and that whilst some progress has been made over the last eighteen months, much that needs to be done remains locked away on the local plans that were published in April 2015. Later in 2015 the Government will introduce a Policing and Criminal Justice Bill to Parliament which will begin the process of amending the Mental Health Act 1983 to change the way that sections 135/6 work.  Amongst other changes, it is suggested that children should never be detained in police custody, no matter what; and the overall maximum time anyone can spend detained in any Place of Safety should be 24hrs.

There will be work to do on both of these points and areas Concordat plans will probably need adjusting accordingly. Only today, an NHS mental health trust was complaining on the BBC news website that no adult acute inpatient beds were available in England for someone who needed admission. If the law is changed to allow less time in a Place of Safety there will be, for those detained under ss135/6, less time after assessment to find a bed at the point where many AMHPs using social media will say it’s getting ever harder to do so. The importance of the Concordat and of organisations working together to understand how their overlapping demand works has never been greater.  This is the case, at just the point where formal oversight to drive the Concordat is coming to a conclusion.

And there is still loads to do, folks!

IMG_0053IMG_0052Winner of the President’s Medal from
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.


The ‘Civil’ Sections

Nearly four years in to writing this BLOG and I’ve never done a post explaining the main inpatient provisions under the Mental Health Act. I would argue that officers do need to have a sense of what they mean, because aspects of how these sections operate affect policing decisions that can be subsequently necessary – so I’ve decided to cover it. From understanding the point at which someone becomes ‘sectioned‘, all the way to understanding timescales that might apply to the re-detention of a patient who has absconded from care – all relate back to understanding various important sections of the Act.

The sections I am going to cover in this post are those contained in Part II of the Act, what sometimes are called the ‘civil’ sections of the Act (as opposed to the ‘criminal’ sections in Part III which are imposed within the operation of the criminal justice system).


There are two provisions officers need to know about as they are the ones that occur most frequently where patients are being ‘sectioned’ or are ‘AWOL’ –

  • Section 2 MHA – an Approved Mental Health Professional (AMHP) or a person’s Nearest Relative (NR) can apply for a person’s admission to hospital for assessment of a mental disorder where that application is supported by two medical recommendations from doctors. One of those doctors must be ‘section 12 approved’, which means they must have special experience in caring for patients with a mental disorder. Once in hospital, the patient may be detained there for up to twenty-eight days for assessment and any treatment thought necessary. This period of time in hospital cannot be extended or renewed; and patients have a right to appeal to a mental health tribunal to challenge their detention, if they wish to do so.
  • Section 3 MHA – an AMHP / NR can apply for admission for a patient’s treatment of a mental disorder. As with section 2, the applicant must have two medical recommendations, one from a ‘section 12’ doctor and for this particular section only, the doctors must be satisifed that the kind of clinical care that is required by the patient is available at the hospital. Detention under section 3 for treatment lasts initially for six months but it may be extended. The first extension lasts for a second six-month period and then for further periods of twelve months. As with section 3, patients have a right of appeal to a mental health review tribunal. A Nearest Relative can object to their relative’s admission under s3.

Depending on how interested you want to get, there can be some fairly fascinating amongst AMHPs as to which section should be selected as a mechanism to admit someone to hospital. My original understanding of these provisions led me to believe that patients were admitted under section 2 where they were not known to services or where they did not have a known diagnosis; section 3 was for known patients with a diagnosis. I thought this because that seemed to be how AMHPs’ decisions were taken when I worked as a custody sergeant. On one occasion, an AMHP wanted to make an application under section 3 for a young man arrested for a robbery. I remember feeling utterly confused when I was told that the application would not be happening because “his nearest relative has objected”. This young man was obviously very unwell indeed and I was simply astounded that an objection from a relative could prevent it going ahead.  This is a peculiar aspect of section 3 – the NR can object, whilst for other sections it is merely necessary for the AMHP to take NR’s views into consideration. This is just one of several reasons some AMHPs argue admission to hospital should most usually occur under s2, to which NRs cannot legally object. There are other reasons relating to timescales in which a tribunal can review the decisions, least restrictive practice principles, etc..


There are two less-frequently occurring sections that will occasionally pop up: they are simple to understand and I’ve had queries on both of these recently, where the NHS have rung the police in connection with application of AWOLs –

  • Section 4 MHA – this section relates to an emergency application for admission where time to act is short. An AMHP / NR may apply to hospital on the basis of only one doctor’s medical recommendation and detention in hospital lasts for only 72hrs. The doctor should, ideally be a ‘section 12’ doctor, but it is not a strict requirement if none are available. There is no appeal against detention under s4 because within that period of time, it is required that a second doctor examine the patient and if a further medical recommendation is forthcoming, the patient is treated as if they were originally admitted to hospital under section 2.
  • Section 5 MHA – not everyone who is admitted to hospital is ‘sectioned’ under one of these first three sections. Many patients are admitted on a voluntary basis. Where a patient is already admitted voluntarily and they decide to leave, there are two holding powers under section 5, for doctors and nurses respectively, to hold a person in hospital pending a Mental Health Act assessment for their admission as a detained patient under either section 2 or section 3  and paragraph 16.20 of the Code of Practice tells NHS staff to use these powers in preferene to calling for officers to implement section 136, which in any event can’t be used on a hospital ward –

5(2) – Any doctor may hold someone who is already an inpatient for up to 72hrs under section 5(2) of the MHA. An important point for officers to understand here, is that the 5(2) takes effect at the point where the doctor’s written report is delivered to the hospital managers.  It does not take effect at the point where the Doctor decides to start writing a report, so a recent example I  was contacted about meant hospital security were quite correct to refuse to rely upon this provision where a nurse was telling them to do so. The doctor had not yet completed his report and any detention would

5(4) – A nurse of the prescribed class may detain a patient for up to 6hrs. During this time, a doctor’s holding power under s5(2) may then be applied if a full Mental Health Act assessment cannot be convened in time. A nurse of the prescribed class typically relates to nurses who are trained in mental health, learning disabilities or child / adolescent mental health. Many nurses on acute hospital wards will not be authorised to use this power but all nurses are able to ask any hospital doctor to authorise detention under section 5(2) and they may also rely upon the Mental Capacity Act, where it applies.

It’s important to note on section 5 that it cannot be used in A&E because members of the public in that part of the hospital are not inpatients – A&E is, in effect, a large and unusual outpatient clinic, legally speaking. Section 136 of the Act however absolutely can be used in A&E, notwithstanding arguments about it is a place to which the public have access (it is) and whether or not it is itself a place of safety (it can be)!


All of these sections have different implications when patients are missing because of the timescales. In the Quick Guides section, you will find a full checklist for the timescales that apply to the re-detention of an absent patient, including the so-called ‘criminal sections’ under the Act –

  • 2 – up until 28 days after their original admission to hospital
  • 3 – up to six months after the date on which they become AWOL
  • 4 – up to 72hrs after their original admission to hospital
  • 5(2) – up to 72hrs after their original detention under this power
  • 5(4) – up to 6hrs after their original detention under this power.

It is a requirement of the Code of Practice to the MHA (paragraph 28.17) that police officers are told by medical or nursing staff the time limit for taking someone into custody. I’m sorry if this next point causes any upset to anyone, but it’s worth double-checking what you’re told against the timescales outlined: my own professional experience is that I’ve never, ever been told the correct answer in all the times I’ve asked for time limits to be explained. It may be easier for officers to ask the admission time / date (for s2 and s4) or the AWOL time / date (for ss3, 5(2) and 5(4) – work it out for yourself from there!

If an inpatient has become AWOL, the power to re-detain them within the timescales is section 18 of the Mental Health Act. There is no power to force entry to premises in order to do this, so where it is necessary, a warrant under s135(2) MHA must be obtained. Police officers can apply to Magistrates for such warrants, where necessary. The Code of Practice prefers that mental health professionals accompany officers whilst executing them.  If a person has been ‘sectioned’ under the Act and they abscond during conveyance before arrival at hospital, then the power to re-detain is section 138 MHA. Again: a warrant under s135(2) MHA must be sought, if entry is to be forced where s17 of PACE does not apply.

Don’t forget, if you need to look up this stuff from time to time, there are various links on this BLOG that can be easily stored on your SmartPhone homepage – just open the links one at a time and save them to a folder.  Job done!

IMG_0053IMG_0052Winner of the President’s Medal from
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.