PaCA – Operational Officers

This blog is part of the series which will cover, in detail, the amendments to the Mental Health Act 1983 within the Policing and Crime Act 2017.

For background to the series, see the introductory post which outlines why I’m doing this and what other specific issues will be covered concerning laws that will come in to effect in the next few months. Current Home Office estimations of timescales suggest early May – but this is subject to a number of factors and may change.


These are the Mental Health Act amendments, stripped to the absolute bone for ease of digestion by operational police officers.  It may also be a useful summary for service users / carers or other front line professionals, but it’s written for officers who need to read it!

Click on the ‘more detail’ links to take you to the main posts I’ve written on the amendments I’m briefly summarising here! –

  • Section 136 MHA –
  • You can now use s136 in any public or private place, unless it is a “house, flat or room” where someone lives, or any non-communal “yard, garden, garage or outhouse” connected to such a place. Includes workplaces, railway lines, police custody or A&E departments.  More detail.
  • However, you must consult, where practicable, with a DR, nurse or AMHP before utilising s136 – find out from your force who you are expected to ring! Document what they say to you – they cannot instruct you, only advise. Any decision to detain is yours, not theirs.
  • When considering if it is practicable to consult, remember the person is free to walk away until such time as you decide to detain them – have you informed them of this; do they have the capacity to consent to remain pending consultation?
  • Section 136 can only occur if a person is in immediate need of care or control – how immediate is that need if you have time to make phone calls? If you delay making a detention how do you justify later on that there was an immediate need to act?  You must strike a balance!
  • Place of Safety –
  • You cannot, ever, take a child to a police station as a Place of Safety – this means no-one under 18yrs. NB: this is not a ban on using custody; it is a ban on police stations. More detail.
  • An adult can only be detained in a police station in ‘exceptional circumstances’ – this is not defined because the Government haven’t published the statutory Regulations: I’ll update this page as soon as I know what they are!
  • A person can only be detained in a Place of Safety for 24hrs – unless a Doctor authorises an extension up to 36rs. They can only extend things if there was a delaying in undertaking the assessment because of the condition of the person: the DR cannot authorise extension because they’re struggling to find a bed! More detail.
  • Everytime you use this power: call an ambulance, anyone with RED FLAGS to A&E, everyone else should go to whichever PoS is locally identified, unless you can identify another solution – police stations are only for adults only in exceptional circumstances.
  • Searches –
  • Where someone is detained under s136 MHA, they are able to be searched on arrest subject to the criteria of s32 PACE – you can also now search under s136C once you have arrived at a Place of Safety for anything that may be used to cause harm or escape if you have reasonable grounds to believe they possess such a thing.
  • This authority to search is ongoing whilst the person remains detained but each and every search must be justified, on its own terms, especially for any second or subsequent search since being originally detained.
  • You can also now search someone at any point after you have executed a search warrant under s135(1) or s135(2) MHA – the power to do so is s136C(1) – this 135 search authority lasts until the end of detention under s135(1) OR until the person you have detained under s135(2) has arrived back at the place you were taking them.
  • You are authorised to retain possession of anything you find during that search which could be used for causing harm and retain it until the end of the period of assessment. Anything found which is prohibited by an offence can be retained indefinitely after being seized under s19 PACE. More detail.

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

Winner of the Mind Digital Media Award.


PaCA – Anywhere Other Than a Home

This blog is part of the series which will cover, in detail, the amendments to the Mental Health Act 1983 within the Policing and Crime Act 2017.

For background to the series, see the introductory post which outlines why I’m doing this and what other specific issues will be covered concerning laws that will come in to effect in the next few months. Current Home Office estimations of timescales suggest early May – but this is subject to a number of factors and may change.


The time for debate about whether or not the police should have powers under the Mental Health Act (MHA) in someone’s home are over: the Bill became an Act and the law is now framed, beyond discussion. Whilst the extent of s136 MHA has been widened, the summary of it is “you can use section 136 anywhere except a home where someone lives”.  This post covers the detail of what that means and will get in to that whole debate about gardens and garages, etc..  But you can forever ditch that tortuous phrase “place to which the public has access” and any notion about where the constable ‘finds’ the person to which s136 relates.  The power may now be applied in all places except homes, but ‘home’ is not the word used by the legislation, so it takes a touch of explanation but I think, overall, it makes it much easier to understand. You can have your view about whether you agree with what they’ve done here, but I suspect we’ll agree it’s easier to consider its application.

YOUR HOME IS YOUR CASTLE

Section 136 MHA itself now reads as if it applies everywhere and this is the definition officers will need to consider –

“(1) If a person appears to a constable to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons — (a) remove the person to a place of safety within the meaning of section 135, or (b) if the person is already at a place of safety within the meaning of that section, keep the person at that place or remove the person to another place of safety.”

However, officers then need to consider a newly inserted sub-section, s136(1A) –

“(1A) The power of a constable under subsection (1) may be exercised where the mentally disordered person is at any place, other than — (a) any house, flat or room where that person, or any other person, is living, or (b) any yard, garden, garage or outhouse that is used in connection with the house, flat or room, other than one that is also used in connection with one or more other houses, flats or rooms.”

So section 136 can not be used where those of us with mental health problems are encountered in their own home OR within someone else’s home, assuming they are there with permission and not trespassing. Nor can detention occur in someone’s own garden unless it is a communal space shared with other people who live in other dwellings, for example in a block of flats.  Garages, outhouses and yards are treated the same as gardens for this purpose.

I’ve already had queries on social media about people who live in what I might term ‘non-traditional’ housing: tents, canal barges, caravans, etc. – does the new s136 apply to those? The legislation doesn’t specify anything more than I have cited, above, so therefore it is a matter for professionals to interpret that wording in light of circumstances. Those who raised the question tried to draw comparison between the purpose of the canal barge or caravan for that individual with the purpose I have for my house. I live in a house, a friend of mine from university lives on a (very lovely) canal boat on the Thames. Am I afforded legal protection from the application of s136 whilst she is not? – and if I am, why is she unfairly discriminated against for her lifestyle choice? All that I can do is encourage you to ask the legal questions: is this a house? – no. Is it a flat? – no. Is it a room? – in the sense that any space surrounded by wood, metal or canvass, whether it is on wheels, floating on water or pitched in the woods, is a ‘room’, yes, but the normal English understanding of that word suggests that such places are not rooms. If anyone has legal opinion or cases to the contrary, I’d be interested to hear them!

Finally, hotel rooms! – clearly they are a ‘room’ so can s136 apply in such a place? … do people ‘live’ there?! When you pay for a hotel room, you gain a right of occupancy over that room, subject to general terms and conditions in the hotel. We know from caselaw, warrants are required to enter hotel rooms and that hotel managers cannot over-ride that right of occupancy during the paid duration of someone’s stay. Therefore, no – you cannot use the new s136 in a hotel room, because the person is regarded as ‘living’ there, even if just staying for one night and day.

NON-DOMESTIC PRIVATE PREMISES

The extension of s136 therefore mainly relates to those private premises not open to the public which are not ‘houses, flats or rooms’. It has been an anomaly for years that British Transport Police cannot use s136 on railway lines because the tracks are not public places. Of course in practice, they do ‘use’ section 136 but technically this occurs after they have used other legal powers to remove the person from the tracks and this is quite lawful – there is caselaw about police officers being entitled to consider someone ‘found’ when they have, in reality, placed them there after removing a trespasser. However, the new version of s136 just gets around all of that faff and makes it much clearer to apply and understand.

There are a range of other places which have historically generated debate about that old phrase ‘Place to which the public has access’ – and this discussion is now consigned to history. Wherever you previously sat on the use of s136 in an Emergency Department, cinema or police custody: we can all now easily agree that none of these places are ‘houses, flats or rooms where that person is living’.  Easy easy, isn’t it?!  Of course, whether you instigate section 136 in those locations remains a matter of judgement and proportionality, but it is certainly possible to do so … and because the word ‘finds’ has been removed from s136(1), it doesn’t actually matter where the person was originally encountered as long as the mechanism by which they have arrived in the subsequent place is a lawful one. Someone lawfully arrested in their own home who is then released from police custody, for example, may be subject to s136 MHA as long as the arrest was, in itself, done for legitimate policing purposes and not a manufactured ‘stepping-stone’ to create conditions in which to justify the use of s136. Custody sergeants in particular might want to bear that in mind, when deciding how to handle the detention of those arrested for minor crimes who are then deemed to require assessment under the MHA. << This one is, in my view, one of the biggest unintended consequences of how the law has been re-framed.

So all ambiguity about Emergency Departments is now removed – I don’t think there was any confusion to begin with but I do know officers and ED staff have had some frank discussions about this point over the years. The police may  (not must!) use s136 in ED, where it is justified on its own terms – and therefore nothing prevents ED staff from asking the police to consider the necessity, bearing in mind they do not have powers of their own in that environment under the Mental Health Act. Yet again, you may have a view about whether this is right or wrong, but that is the law as it stands.

PRIVATE HOMES

So what is the solution where officers are, inevitably called to private homes for a mental health crisis call? … they inevitably will be! The first choice should be to try to resolve the matter in a unrestrictive way, ie., referral to a relevant service. The service may require the person to consent to attend somewhere (like ED) or it may be able to come to the person (like a CrisisTeam or triage team). If that fails or is not appropriate, then the legal options are to consider the powers available. In no order of importance, they are –

  • Powers of criminal arrest – if there is an offence or attempted offence – but this has to be because there is a genuine intention to investigate the allegation with reference to use of these powers!
  • Common law powers – Breach of the Peace or the doctrine of necessity: but they are not as applicable as many of us think! Breach of the Peace is legally defined, the doctrine of necessity applies where the MCA does not, roughly.
  • The Mental Capacity Act 2005 – where there is an urgent, serious medical issue and someone lacks capacity. You cannot just remove someone to hospital because in some general sense, the lack capacity.
  • The Mental Health Act 1983 – consider referral to an AMHP (via whatever local process you have) to son insider a MHA assessment under s4 MHA or a s135(1) warrant. << The basis for suggesting this is the Sessay case (2010) – it’s what the judge reminded us should have happened instead of officers misapplying the MCA.

So what this newly framed legislation does not do, is remove the need for senior managers to work out how 999 services and mental health services can work together in real-time to keep people safe. This needs to include AMHPs and the ability convene urgent MHA assessments, where necessary!

EVER-RISING USE OF SECTION 136

So if you haven’t worked it out already: the use of section 136 MHA is about to start rising even faster than it already was! Remember: the last time figures were published, use of s136 had risen to over 28,000 detentions per year and this is up 10,000 in 10yrs, notwithstanding initiatives like street triage to try to reduce use of the power. If police officers can soon rely upon the power in wider circumstances, it is unlikely that they will use the power less than they previously have.   That’s more s136 and MHA assessments for AMHPs to undertake; therefore more need for s12 Doctors as a part of that and more capacity required in NHS facilities to ensure those assessments can almost always occur in non-police settings. (The post in this series about restricting the use of custody as a PoS will appear later because the Government have not yet published the statutory Regulations which will define it.)

So as areas try to think about the implications of the PaCA amendments on their areas, they need to understand how the power is used by their local police, what factors may be brought to bear to affect that such as training or street triage, etc.. (It should be noted: street triage doesn’t always reduce use of s136!) Whatever understanding they reach, they then need to ensure there is sufficient capacity and contingency in local facilities to be able to manage the number of detentions being made by the local police – this may include areas needing to consider their ability to handle multiple detentions at the same time, where previously they may have operated a facility which could handle only one detainee at a time.

Lots to think about, on this one!

The next post in the series will focus on the new ‘pre-136 consultation’.


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

Winner of the Mind Digital Media Award.


PaCA – Twenty Four Hours!

This blog is part of the series which will cover, in detail, the amendments to the Mental Health Act 1983 within the Policing and Crime Act 2017.

For background to the series, see the introductory post which outlines why I’m doing this and what other specific issues will be covered concerning laws that will come in to effect in the next few months. Current Home Office estimations of timescales suggest early May – but this is subject to a number of factors and may change.


Following commencement, the limit for holding someone in any location as a Place of Safety will reduce from 72 to 24 hours. – see s136(2A) MHA. This will bring England and Wales in to line with Scotland who capped Place of Safety detention at 24 hours almost fifteen years ago. I will admit, this is the amendment I’m most worried about in the whole programme: we know there are various reasons why assessment under s136 exceeds 24hrs on a fairly frequent basis; indeed there are not-entirely-rare examples of 72hrs proving insufficient because of difficulties finding beds for admission.

So here are the main potential problems that will put pressure on the ambition that most cases are resolved within 24hrs. The more of these you have in your area, the more difficulty you are going to face, I would suggest! –

  • AMHPs – there is a problem with staff retention in AMHP services. I’m aware from emails recently that in some areas they have not been able to ensure even one AMHP over the 24/7 cycle. One force said they’d detained someone under s136 at 9pm and were aware by 10pm that they would not see an AMHP until around 9am the following day because there would be none on duty at all. In fairness to some local authorities, they are finding it difficult to recruit and some have fewer than half of the full-time equivalent AMHPs for their core statutory functions. In fairness, I’m full of admiration for those undertaking the role – I wouldn’t be prepared to do it. Big kudos to those who do!
  • DRs – meanwhile in some areas, AMHPs say that they are more-or-less surviving but they struggle to secure a s12 DR to undertake the s135/6 assessment. On social media only a day or two ago, one AMHP was asking what happens in other areas of secure a doctor after they had made twenty-five phone calls to twenty-five different doctors!! … all of whom, declined to turn out. Any Registered Medical Practitioner can undertake a s135/6 assessment so perhaps we’ll find the ‘non-s12 approved’ doctors having to be used to avoid running out of time? It may come to a point where AMHPs have to choose between using a s12 DR or getting it sorted within 24hrs because they can’t have both.
  • Beds – various indicators are telling us that admitting patients to hospital is challenging. We’ve seen media coverage of difficulties, including where admitting people from police custody after they were originally arrested for whatever reason. Admission after section 136 MHA assessment was always easier because staff could take whatever remained of the 72hrs to find a bed – now they will have whatever remains from 24hrs to do so. It begs obvious questions – that only CCGs / LHBs can answer – but meanwhile, police forces have threatened legal action to defend their officers where this happens and one force is facing legal action after someone spent four days in custody.

EXTENSION OF DETENTION

Just occasionally, the 24hrs time limit can be extended up to the real maximum of 36hrs – but this cannot occur every time just because complying with the normal limit is proving difficult.  Section 136B relates to the extension and states –

“S136B(2) – an authorisation may be given only if the registered medical practitioner considers that the extension is necessary because the condition of the person detained is such that it would not be practicable for the assessment of the person for the purpose of section 135 or 136 to be carried out before the end of the period of 24 hours.”

So there are four points to emphasise –

  • The DR who is conducting the s136 assessment must authorise the extension before the 24hrs is complete.
  • The DR can only extend detention where there is difficulty in arranging the assessment ‘because of the condition of the person’ – they CANNOT extend detention because there is difficulty, for example, in finding a bed.
  • If the person is detained in a police station as a PoS, the DR may give this authorisation only if a police officer at the rank of superintendent approves it – there is no contingency for an inspector to authorise this where no superintendent is available, although nothing prevents the superintendent authorising this verbally by telephone. It is not in any way related to superintendents’ extensions under s41 PACE.
  • Where an extension is authorised, the DR (and superintendent) must specify how long they are authorising beyond 24hrs. It’s not an automatic entitlement to a further twelve hours every time – see s136(2A)(b).

So where someone is intoxicated and assessment is delayed; OR where it is necessary to take someone to an Emergency Department for urgent medical treatment before assessment: these situations would allow the DR to extend detention – although how that happens if one problem is a delay due to not being able to secure a s12 Doctor, I’m not quite sure! What is clear, is that a lack of beds for admission will not allow an extension of the 24hrs up to 36hrs and a delay in finding an AMHP or DR is not sufficient either. Police officers should watch out for deliberate delays in undertaking assessments, so as to create conditions within which the authorisation appears possible. Forces should ensure that where they remain involved in detaining someone under s135/6 at a PoS, they have been clearly told the reasons for the delay in assessment, document it and satisfy themselves to the extent that they can it was appropriate. It would not be sufficient to simply say, “The DR authorised it”, especially if it seems possible that there wasn’t a legitimate reason for delay, such as finding professionals to do it.

PRACTICAL IMPLICATIONS

Things which have occasionally been done a touch casually now need to be done with some discipline: police officers need to ensure that AMHPs are told of s136 detentions as soon as someone has arrived at the first Place of Safety to which they are removed, including where an Emergency Department has been used. We must NOT burn up precious parts of the 24hrs clock by stalling on this point. It may be the case that someone is not immediately able to be assessed and it could be there is a delay in the AMHP or DR becoming available, but the duty on the police is to inform the AMHP as soon as possible.

There was an inquest in Reading a few years ago whereby officers delayed informing the AMHP, mainly because the man detained needed treatment in an Emergency Department for physical injuries. Who amongst us hasn’t done that with someone detained under s136?! – what are we expecting the AMHP to do if we know the person is within a queue of unspecified length with an uncertain amount of delay to be treated?! The Coroner took a clear position that it did not matter and that the AMHP should have still been informed. If nothing else, it put the fact of the s136 detention on record, might have led to some early information exchange that could have proved useful but it also allowed the AMHP to start planning their competing demands to be available for that assessment, having jacked up a DR, as soon as possible after ED had finished treating him.

This will become even more important, post-commencement. AMHPs are in shortly supply in many areas; s12 DRs are in short-supply in many areas. The earlier an AMHP knows of the detention, the more time they have to think about what may be required and to either roll with any problems, or at least to flag them up to the police or Place of Safety so they can manage everyone’s expectations — call the AMHP as soon as you get to the first place to which you go and in to which you are accepted – whether that’s an Emergency Department or anywhere else at all! 

BEDS!

I’ve briefly mentioned this as a problem, above but I’m now going to labour the point. In fairness, this is the problem which seems to be most concerning to AMHPs who are going to be undertaking assessments and then very much being left at the mercy of NHS Bed Managers should there be any difficulty at all in securing an admission. Many people argue there is a national shortage of inpatient psychiatric beds, including for adults but especially for children and others with specialist needs requiring a learning disability or psychiatric intensive care unit bed. We still see stories around the country of people being moved hundreds of miles away and work I’m doing about admission from police custody shows us clearly there is an over-reliance upon the police to ‘house’ people, in not-altogether legal circumstances pending beds being managed or found. This doesn’t look like being sorted any time soon and the new timescales for Place of Safety assessment aren’t going to make this any easier so old arguments seem worth revisiting as the inevitably become more in the future relevant in the future.

When I first started formally working on mental health I didn’t really know where to start so I sat down and read the Mental Health Act – actually several times. I did the same with the Code of Practice to the MHA. I noticed section 140 of the Act and was interested in it after incidents in my own force where beds had been hard to come by. I also noticed that section 140 MHA was simply not mentioned in the (1999) Code of Practice, nor was it mentioned when the Code was updated in 2008. So I’ve banged on for a decade at every chance I’ve had about this often ignored provision of the Act. I can say ‘often ignored’ because over the years I have made Freedom of Information applications to over fifty Clinical Commissioning Groups (previously known as Primary Care Trusts) about what the have done with the legal duties arising from this section. I will let you read my post on section 140 MHA if you want more detail – the punchline is CCGs and LHBs must specify hospitals which are in a position to receive urgent admissions. Although the section doesn’t say very much more the clear and obvious implication of the provision is that those hospitals should usually have at least a fighting chance of being able to admit people urgently, where their health and safety, or that of others is jeopardised. Almost no CCGs can fully answer the FoIs I have sent them over the years – many admit they weren’t aware of the provision and don’t understand what I’m asking.

So – when AMHPs and DRs have made their assessments within 12hrs and have only another 12hrs to find a bed for any admission that is indicated, whether or not the CCGs or LHBs has complied with this legal duty and actually commissioned services in such a way as to mean they have contingency. The police and Place of Safety services will be less of a contingency in the future, so compliance with this section and its implications are going to be vital. Wherever we see delays in admission and especially where it is assumed the police will just endlessly hang on to people pending these arrangements being identified, it arguably represents an article 5 violation and by virtue of s6(1) of the Human Rights Act 1998, no public authority may act in this way – ever.

If you are a mental health professional reading this: please ask your managers or CCG / LHB about section 140 MHA.

The next post in the series will focus on the places where s136 can now be initiated.


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

Winner of the Mind Digital Media Award.