PaCA – Section 140 MHA

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. This post is one of several which relates not the amendments themselves, but to the implications arising from them.

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.


It’s now a dozen years since I first read section 140 of the Mental Health Act 1983 – and I recently met some senior mental health professionals who never ever read it or heard of it. When I first read the provision, in 2005, section 140 MHA was not mentioned once in the accompanying Code of Practice (1999), or the Reference Guide form the Department of Health. It still wasn’t mentioned when the Code was updated (2008) or in the revised Reference Guide. If you read the formidable Mental Health Act Manual by Professor Richard Jones, you’ll see this book provides the full text of the Act and Code as well as a commentary on the sections of the Act, so of course it was covered in there. However, the commentary was limited in comparison to that for other provisions.

I’m not going to repeat my first post on section 140, so you can go back to that original post if you wish. This blog argues just two things –

  • We still aren’t really talking about this provision – what it says, what it means and how we actually acknowledge its existence in law by action in the real world; AND
  • It’s now become more important than ever before – it will become more important still in just a few months time; and this raises the importance of point one!

When public consultation occurred for the latest Code of Practice (for England) in 2014, the draft didn’t mention section 140. I replied to that consultation asking why not, given it was missing form the two previous editions and from the Reference Guides, so it consequently seemed that no-one had heard of it. Its implications may be widely ignored and I came to increasingly see that as a problem, not only for the police. I was delighted to find, when the Code of Practice was published in 2015, this provision finally received a brief mention (see the section commencing at paragraph 14.77).

PARLIAMENT’S INTENTIONS

When legal discussion occurs about Acts of Parliament, we often hear people wondering about parliament’s intentions, too help interpret the text of an Act. Of course, intentions is one thing, the actual wording of the Act might be something else instead, depending on the quality of how the law was drafted. Section 140 of our current Act is, in fact, just a direct transfer to the ’83 Act of section 132 of the preceding 1959 Mental Health Act.  It’s a provision that has almost sixty years of history but that, I haven’t been able to find out much about that history, despite efforts. All I can say, is I’ve made Freedom of Information requests to well over 50 different Clinical Commissioning Groups (or their Primary Care Trust predecessors) and I don’t find myself satisfied by a single, solitary answer I’ve received. I most recently did this in 2016 at which point several CCGs just replied to say they’d never heard of the provion and didn’t understand my question. And this is the law of our country we’re talking about!

The section itself says –

“It shall be the duty of every Clinical Commissioning Group and of every Local Health Board to give notice to every local social services authority for an area wholly or partly comprised within the area of the clinical commissioning group or Local Health Board specifying the hospital or hospitals administered by or otherwise available to the clinical commissioning group or Local Health Board in which arrangements are from time to time in force — (a) for the reception of patients in cases of special urgency; (b) for the provision of accommodation or facilities designed so as to be specially suitable for patients who have not attained the age of 18 years.”

So what does this all mean? … actually?! –

The 1959 Act was written at time where mental health units were not expected to considered themselves ‘full’. A local, county asylum would continue to accept and accommodate patients thought to need admission where applications to them were made under the Act or by the courts, not withstanding such modern niceties like capacity or conditions. Indeed, earlier in my career, when I sought legal advice on MHA admissions, the barrister concerned advised that hospitals were actually not legally permitted to refuse admission made to them. I haven’t heard this repeated by anyone else since(!) – and indeed I’ve heard it repeatedly contradicted – but it attends to this point: where detention or admission is required, for safety reasons, it needs to be able to happen.

MORE THAN BUREAUCRACY

Legal considerations about the need to admit someone urgently under the Act include more fundamentally important things than niceties and bureaucracy in our particular domestic law. It could also amount – and it often does amount – to a human rights consideration. We know that prolonged detention in police custody (pending admission) can contravene Article 3; we know that protracted detention in custodial settings for no other reason than mental health problems can amount to an Article 5 violation; we know duties owed to patients who are known to be suicidal can give rise to Article 2 considerations, whether the patient is detained or voluntary. And we know that no state may defend these things by arguing they don’t have the money to prevent them. As such, dependent upon the precise circumstances, the need to ensure an urgent admission may be something which triggers one or more of these various duties? – remember: no public authority may act in a way that is contrary to a person’s European Convention rights, by virtue of s6(1) Human Rights Act 1998. 

It must surely have been the intention of Parliament when writing and updating the Mental Health Act over the last sixty years that wherever AMHPs and DRs encounter people in urgent need of admission, that occurs just as it would if someone had any other serious, potentially life-threatening condition? I struggle to read section 140 without thinking about these implications: I know the section does not overtly oblige hospitals specified to receive patients where they have good reasons for needing to resist an admission because of the pressure they are under. But this, for me, is where the intentions come in to it – presumably, Parliament are asking CCGs to ensure that there are contingencies available to ensure that at least one of those hospitals is in with a fighting chance of actually receiving the person for urgent care.  Whether CCGs commission things in such a way as to ensure hospitals run, as the Royal College of Psychiatrists recommends, at 85% capacity; or whether there are other mechanisms provided for around an increased availability of staff and space, to be triggered by managers in relevant situations – either way, it would amount to a plan.

The conversation inevitably comes back to money: the NHS mental health system is under pressure and NHS commissioners can’t afford to do anything other than cut, the argument goes. But only yesterday we saw that NHS managers at national level have taken choices to use money ring-fenced for mental health in order to clear the deficits of acute trusts. There are choices being made here. I remember reading the legal documents for the MS v UK case which related to a challenge against the NHS in Birmingham over protracted detention in custody. The lawyers representing the applicant, in their submission to the European Court mentioned a case from Ukraine, which I’ll be damned if I can name or find when searching for it! – I will update this page if my queries bring it to light. But the case essentially said that no state can defend a violation of the ECHR by claiming ‘economic necessity’: you can’t argue, “we can’t afford to it in any other way” if your approach amounts to human rights violations. It’s just not (legally) sufficient.

POLICE CUSTODY

These issues are live problems that your police service often see – it’s over ten years since a police force first felt that they were in such an invidious position because of the inability of mental health services to get someone in to a bed that they referred the case voluntarily to the Independent Police Complaints Commission. The IPCC found the force and its officers had broken the law, but that there was just no way they could have done otherwise because the only alternative course of action they had available to them was to release the person from custody, whereby they would have failed on other obligations. It was one of the genuinely rare “damned if you do, damned if you don’t” situations. Only a couple of years later, I remember a murder investigation in the West Midlands that risked going off the rails because a suspect needed to be admitted to hospital under the MHA and the argument broke out about no (secure) beds being available. As with the IPCC investigation in to GMP, it took threats of legal action by the force to eventually cause a bed to be found. More recently, we saw the case in Devon of a sixteen year old girl being detained for two days which led to a senior officer tweeting about the situation to draw attention to the problem and media reaction forced an outcome that was otherwise not likely.

Those examples all relate to police custody after arrest for an alleged offence but there have been difficulties relating to section 136 detention and admission from police custody. The MS v UK (2012) case involved a 72hr time limit within which to conclude arrangements for treatment but this was not adhered to, again because of arguments about accessing a bed in a secure mental health unit. In that case, the European Court ruled there had been an Article 3 violation because of the patient’s “dire need” of psychiatric treatment. If we are about to see the timescale for s136 MHA assessment reduced from 72hrs to 24hrs, it seems only likely that there will be more cases in the future where we cannot arrange a patient’s admission within the timescales afforded by domestic law.

I’ve been repeatedly asked in the last few weeks what should happen if the 24hrs limit is reached and no application has been made? – that answer is really, really easy: you have to decide whether to release a person in to the street, knowing they are so unwell they require compulsory admission to hospital; OR you unlawfully detain them pending the identification of a bed. There is no easy, ideal and lawful option available to you. You must decide between the two things, whilst escalating to senior officers and senior health managers, citing the legal problems and demanding resolution as soon as possible. But this all comes back to he question of whether section 140 means what I think it means: that CCGs and LHBs should be specifying those hospitals which have arrangements for urgent admissions AND then ensuring they are operating in such a way that if an AMHP needs to make an application for admission in a hurry, they are not prevented from doing so whilst exhaustive and protracted searches occur for beds. Whatever it is that section 140 means, the way in which it and all the other sections of the MHA are given effect, MUST then ensure that the human rights of patients are protected. No public authority may act otherwise and they cannot defend the situation by arguing that they don’t really have the money to do it any differently.


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

Winner of the Mind Digital Media Award.


Thomas Orchard

Today, a police custody sergeant and two detention officers have been cleared of manslaughter following a hearing at Bristol Crown Court. This retrial follows the death, in 2012, of Thomas Orchard – a 32-year-old man from Exeter who lived with schizophrenia who had been arrested and removed to a police station whilst in crisis. For a short news piece which sets out the background very well, see Channel Four News. In terms of me covering these events on here, I want to put on record that I have had no involvement in any way with any process that followed the incident or any contact with any parties involved. What follows are only my own thoughts after following the investigation and trial process over the last five years via the media.  It touches on those most difficult of issues: the criminal prosecution of police officers following the death of a vulnerable man.

The police received a call from a member of the public to the place where Mr Orchard was arrested under the Public Order Act.  He was restrained upon arrest and removed to a police custody suite. Upon entering custody, it was contended by the police officers who were cleared that he was attempting to spit and bite. They resorted to use of an emergency restraint belt (ERB) which had been issued to them by Devon and Cornwall Police, in order to protect themselves whilst placing him in a cell.  Having then removed the ERB and themselves from the cell, Thomas was alone for twelve minutes before concern for his welfare led them to re-enter and an ambulance was called. It was said in court that he died from a hypoxic brain injury and the effects of restraint, his brain having been starved of oxygen.

This is a tragedy on several levels, the obvious human cost and suffering to Mr Orchard’s family being first amongst them. Devon and Cornwall Police have stated in their press release the officers involved have suffered a toll as they go through a four-and-a-half year process to get to this point. They stood trial for this once before, in January 2016, and this is not over: there are ongoing disciplinary considerations because the Independent Police Complaints Commission recommended that a total of seven police officers be considered for gross misconduct hearings. This includes the three defendants and four others involved in his original arrest. Regardless of those proceedings, the Devon and Cornwall Chief Constable remains under corporate investigation by the Health & Safety Executive to consider breaches of health & safety law. And of course, there is still to be an inquest in to his death which I doubt will happen this year. History in other cases suggests it may not happen next year either. This is far from over and the Orchard Family’s campaign continues, quite understandably.

QUESTIONS ARISING

As you may imagine, I’ve been interested in this case since first hearing of it. Early on, my interest was particularly sparked when it became known that the IPCC had written to all Chief Constables about the use of ERBs as an improvised ‘spit guard’. This topic remains controversial now, as several forces consider whether or not to introduce equipment, very different to this ERB, which is aimed at protecting officers. This case then also raises that question about the ability of officers to discern a mental health crisis from behaviour on first presentation in a short timescale: in this particular case, Mr Orchard was reported to the police by a member of the public amidst an ongoing argument. No-one was offering pre-known information about his mental health so the ability to identify crisis concerns rested on the officers who attended the dispute or disturbance which had occurred. So how possible is it to train officers so that mental health concerns are raised as early as possible and how might this effect whether a person who is detained is arrested under public order law, as in this case, or detained for their welfare under the Mental Health Act? We know that Doctors can get this wrong, so officers are not always going to get it ‘right’ – but could we get this better?

And even if someone is detained under the Mental Health Act, there is then the question about whether they should be removed to police custody because of any challenging behaviour; or taken to an A&E department or a mental health trust Place of Safety (PoS) because of the difficulty in officers establishing in a few minutes whether someone’s presentation has an underlying medical cause? Additionally, is any ostensibly necessary restraint in fact, placing someone at even greater risk?! This dilemma, from a case in 2012, is more apposite than ever as police and mental health services are currently waiting to hear how Government will define the future circumstances in which police custody may still be used as a PoS under the MHA. These questions more-or-less directly attend to the view offered by Mr Orchard’s family that if he’d been detained under the MHA and taken to somewhere set up for reception of those in crisis, he’d still be alive today. The Inquest will no doubt attend to those issues and all I am going to do here, is address them in terms of what has been said in the past in other, not-always-identical cases.

ANSWERS RESULTING

  • Grounds for arrest / detention – it has always been my view that we cannot always guarantee police officers will identify someone is mentally unwell. HIstory shows us that psychiatrists can get this wrong, so it should be surprising if police officers do. That said, we have improved police training around mental health since this case, to reduce such instances where we can. I’ve professional experience of detaining many people who simply appear ‘angry’ upon first encounter only to have concluded by the time we get to the custody sergeant, that they are actually far more likely just to be ‘fearful’ – mainly of me. Understanding the difference between fear and anger is important, even if that realisation occurs slightly after the point where a detention decision has been made. Officers also have to make that call in light of how serious an offence may be – in this case, an alleged public order offence is quite a minor matter in the overall scheme. But other cases have shown officers must occasionally take these decisions where the distressed person has a knife but hasn’t hurt anyone – in some cases where they have. At what point should officers be arresting for alleged offences, irregardless of information about someone’s mental health problem, but ensuring that mental health support and assessment is an early and key part of detention after arrest? You may remember I highlighted two contrasting cases last year which were slightly more serious in terms of alleged offending.
  • Removal to a suitable place – Mr Orchard’s family have made public representations about removal to a more suitable environment, presumably a safe mental health unit. So if the attending officers detained someone under s136 MHA and then follow the Devon Place of Safety policy, would this lead to the avoidance of police custody for those who are frightened and resistant? It’s not automatically clear that it would, unless officers were arguing the need for removal to an A&E department. It’s not clear that officers did think this was needed, because A&E remains an option directly following arrest and they didn’t take it. So what does all of that mean? Mr Orchard’s tragic case is far from being the first to raise the question “Where should police officers take mentally distressed people who exhibit challenging or resistant behaviour after detention / arrest?” In the cases of Sean Rigg, Leon Briggs, Michael Powell, Toni Speck, James Herbert and others, this same question arose. However, even the current Place of Safety policy for Devon Partnership Trust clearly envisages that some detainees (para 6.5) will be transferred to police custody because of ‘violence’. The policy doesn’t give us detail about this stuff so we can’t know for certain that Mr Orchard would have been excluded but it’s obviously possible. I won’t go in to further detail here, but suffice to say when a local 136 policy shows the author-signatories don’t know what ‘AMHP’ means (para 6.8), I tend not to hold out hope for its ability to address the kinds of questions Mr Orchard’s family might reasonably want answered. Had a draft of that document been shared by Devon and Cornwall Police with a request for advice, I would have stated it needs a lot more work before they should sign it.
  • ‘Exceptional Circumstances’ – The Policing and Crime Act 2017 (PaCA) will shortly amend the Mental Health Act 1983 and will authorise Regulations (yet to be published) about those situations in which police custody may still be used. I watched with some disquiet the CCTV films that emerged during this trial or Mr Orchard being arrested in Exeter and then detained in custody, but having been involved in the process as the PaCA came in to being, it strikes me that even after the commencement of this law, cases such as Mr Orchard’s may not be materially affected in terms of where someone ends up after detention. Obviously, it was an option to just completely remove police custody as a Place of Safety under the Mental Health Act for all age groups. Indeed, one Peer did table this as a proposed amendment as the Bill made its way through the Lords, but it failed.  The Government consultation document (December 2014) suggested that police custody for adults should still be an option for any “behaviour so extreme it cannot otherwise be safely managed.” Bear that definition in mind as you reflect on how the partnership trust may have considered paragraph 6.5 of their Place of Safety policy. If the statutory Regulations we will soon see contain something broadly similar, it would raise questions about whether future cases, similar to Mr Orchard’s, could in fact lead to removal to a healthcare setting. Indeed, will it make it more likely than before, if PoS services can cite these Regulations as a reason to refuse admittance?
  • Emergency Mental Health – so for me, this is about a more fundamental change of approach. Since 2012, we’ve seen numerous documents emerge which lend weight to the points many of us have been making for years. Ongoing, high-intensity restraint of someone whose resistant behaviour does not reduce should be causing officers to think about under-lying medical causes. They need to be calling ambulances to the point of arrest, especially but not only where they have employed s136 MHA. We need to have greater consideration at the point of detention about Clinical needs: either because of suspected underlying mechanisms AND / OR because of the impact of high-intensity restraint. NHS England published a Patient Safety Alert in December 2015 about the need for medical monitoring after restraint: it’s not the kind of ‘observation’ that a police officer can do. We’ve also seen the publication of guidance from the Royal College of Emergency Medicine and the Faculty of Forensic and Legal Medicine about so-called ‘Acute Behavioural Disturbance‘ and NICE Guidelines about Violence and Aggression: short-term management in health, mental health and community settings (2015). We’ve also seen cases where the police have detained resistant and no doubt very fearful vulnerable people who have turned out to have conditions as varied as serotonin syndrome, meningitis and encephalitis. We can probably agree, this stuff is way above the pay grade of a junior police officer with a first-aid certificate and as Alison Orchard, Thoma’s mother, has made clear today: we need to create just a few seconds of pause in the minds of frontline officers to think ‘what if’ and to remember Thomas.

Whilst the criminal trial has occurred in Bristol, other proceedings are underway in south London for the inquest in to the death of Olaseni Lewis in 2010. Families are waiting years, only to feel, as Alison Orchard said today outside the Crown Court, “no sense of justice”. My own view is that the families are right to campaign for improvements to policing and I hope the work I’ve done has gone some way towards helping achieve that (I do know there is much more to do). That said, this is not just about policing: as few deaths in custody ever are. This is also about having the correct support infrastructure for officers to access emergency health or mental health pathways, even if it is just for assurances that people are not at risk if they do end up in police custody.

This is about police training, yes – recognition of mental health, understanding the impact of restraint, knowing to seek clinically signposting from paramedics, etc.; but it is also about Place of Safety services which operate to Royal College of Psychiatrists’ Standards on the use of section 136 (2011); it is about the availability and the willingness of ambulance and emergency medical services to support officers’ decision-making. Unfortunately, there have been several incidents where officers have made detentions in situations like this under s136 MHA nad still found themselves excluded from anywhere other than police custody and legal reform is protecting that likelihood going forward, despite argument to the contrary. There will still be lessons to learn here and more facts will emerge from ongoing processes, but as Lord Adebowle said in his 2013 report in to policing and mental health in London, “The police cannot do this alone.”

MEDIA





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

Winner of the Mind Digital Media Award.


PaCA – The Consultation Requirement

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.


If you look at the so-called Street Triage schemes, most of them are predicated on the idea of police officers contacting a mental health profession, usually a nurse, and seeking information or advice about a person they have met at an incident. The nurse may opt to turn up to the job and do a face-to-face assessment or the may advise from wherever they are, by telephone. Many areas claim that since the introduction of street triage their use of s136 has reduced, in some cases quite considerably. This idea lies behind the new legal provision for police officers to consult, wherever practicable, with a professional before deciding to instigate s136 MHA – that’s what we’ll cover in this post.

This pre-136 consultation is a legal requirement, where practicable – you either must do it, or be able to justify why you have not done it. It’s the one, or the other – you cannot simply use s136 and not explain why you had to crack on. This justification will need to be documented in pocket books for future reference because you can anticipate the legality of s136 usage being questioned if an officer has made no effort to consult and also provided no justification for why they didn’t. In areas of the country where services are also under pressure for their Place of Safety (PoS) capacity, I also anticipate some NHS staff will feel entitled to question the officers about the consultation requirement – especially if they disagree with the necessity of it! – and will become interested if the police cannot clearly say why they had to act.  OR – why did they act by detaining if the advice was not to do so?! – that’s a can of worms explored below.

So you either document –

  • Who you spoke to, along with what information they shared with you and what opinion they offered about your actions, if any; OR
  • You document why you felt it was not practicable to consult before having to make the decision to detain.

The law says –

“Section 136(1C) Before deciding to remove a person to, or to keep a person at, a place of safety under subsection (1), the constable must, if it is practicable to do so, consult — (a) a registered medical practitioner, (b) a registered nurse, (c) an approved mental health professional, or (d) a person of a description specified in regulations made by the Secretary of State.”

  • So this is a requirement to consult before you detain – if you have to detain someone to ensure their safety and there is no time to consult, there is no legal requirement to consult after the detention so proceed to the relevant Place of Safety.
  • The law specifies three kinds of professional who could satisfy this requirement: a DR, a nurse or an AMHP. It doesn’t say anything about specific individuals specified locally – any DR, any nurse or AMHP will do, but your local policy should outline the preferred option.
  • You’ll have to ask you line manager what telephone number you must ring to fulfill this obligation.

WHAT ARE WE DISCUSSING?

The section, above, makes no effort to explain the purpose of this consultation. Are we sharing information, are we seeking that professional’s opinion about detention; or wanting to understand which PoS to go to if detention is the outcome? Are we asking for risk information which may be known to the MH trust but not the police; or asking about clinical issues like whether the person is thought, or not, to be concordant with any medication they take? The last question sounds like something a bit clinical and nothing to do with the police, doesn’t it? – yet I could tell you the street triage story about the nurse who didn’t ask a patient about medication and then gave officers an under-inflated risk assessment that led to them not detaining the perso. Hindsight indicated very clearly that knowledge of medication issues would have led the nurse to give a different view. (You can guess the outcome of. It detaining the person.) So how detailed do we want to make this stuff?!

Is this enough? –

“Hi, this is Inspector Brown – I’m at an incident with young man who seems to have mental health problems and I want to consult, as per s136(1C) because of the potential that I may detain him.”

I admit if I’m ringing up, I have more questions and I’d be asking them!

“So, in addition to you telling me whatever you think I need to know and any opinion you might want to offer about whether detention might be appropriate. I’d like to know a) any information you have relating to risks to either him or me, including whether or not you have information that he may possess items which could be used to harm himself or me; b) whether he is prescribed psychiatric medication and whether you have any grounds to believe he’s not taking it; and c) what mental health condition you believe he has.”

And this is interesting moral territory for mental health professionals, isn’t it? – what if they are aware that a person habitually carries a bladed item, either for harming themselves or, as I was once told about patient who carried a knife, “It’s his comfort blanket – it’s just something he carries.”  Is a nurse going to tell the police that there is risk information which may then lead to that person being searched and arrested for a criminal offence when the officer finds them in possession of something they’re not legally allowed to have?

THE LEGAL POSITION

Most importantly, officers in this situation need to focus on the legal situation during consultation. This is a point I’ve repeatedly raised throughout the progress of this legislation and have discussed with street triage schemes and their managers. Section 136 can only be used if the officer thinks there is an immediate need for care or control, in that person’s interests or the protection of others.

  • How immediate can that need really be, if we have time to delay and make a phone call to the NHS?
  • If we make that phone call because we’re not detaining someone as there is no immediate need and we learn nothing new, how can we then argue 10 or 15 minutes later there was an immediate need to act?

Rights and civil liberties are important here. You only need to watch the BBC news or get involved on social media to see frontline officers creating what I’m going to call ‘considerable ambiguity’ about what is occurring legally where they are involved in ‘triage’ encounters.  Some service users on social media report having been held, unable to leave for non-negligible periods of time (measured in hours) whilst waiting for triage to get involved. If consultation can happen quickly and easily, we can agree that information sharing within a few minutes which prevents someone needing to be detained is welcome. But I admit that I wouldn’t be prepared to stretch that point beyond a few minutes before I would feel uncomfortable in not letting someone leave who wanted to. Remember, in the ZH v Commissioner (2013) case, the Court Appeal ruled someone had been deprived of their liberty by being held, unable to leave, for just 10 minutes. Even if someone is not objecting to remaining with the officers, are officers undertaking a capacity assessment of that decision to remain?

Parliament, having just amended our laws, could have inserted something in to s136 which said, “If following the application of s136 by a police officer, a registered nurse offers information or alternatives to detention which negate the original need for the officer’s use of the power, the person may be released from detention” or similar. But they didn’t. Parliament do not want nurses on the street ending detention unilaterally, otherwise they would have said so. Any decision to detain remains that of the officer(s) involved in the incident and this remains true after an officer has been told by a nurse that detention isn’t appropriate.

IN PRACTICE

Ask yourself this: in what circumstances, precisely, would you ignore the advice you’re given not to detain someone and proceed to detain them anyway? If you can’t answer that question, you’re effectively going to be doing as you’re told and yet the decision to detain belongs to the police officer – it never belongs to the nurse. I can think of various situations in which I’d be prepared to detain anyway – I don’t intend to do a disservice to the many excellent mental health nurses who have made great efforts to get their heads around mental health law but I know how little training they get on the legal issues relevant to police detention decisions. As such, examples I’ve come across over the last few years cause me to think some of the advice we’ll receive will be duff, predicated on misunderstanding relevant legal issues and that I won’t know in any given situation whether this was the case.

So my own operational approach is likely to be this –

  • If I’m satisfied that the grounds for detention under s136 are met, I’m likely to argue it is not practicable to consult because I am admitting I have to act immediately to keep someone safe.
  • If I’m satisfied it’s appropriate to consult, I’m unlikely to be using s136 after the discussion unless they tell me some new information that alters my risk assessment.

Remember, the Code of Practice to the Mental Health Act makes it clear (in para 16.21 (Eng); in para 16.27/8 (Wal) – that s136 should not be used as a route to access mental health services – patients should go via their GP or their community mental health team, where appropriate. So if I’m prepared to put in a phone call because grounds for immediate detention are not met, s136 can’t be the answer after the phone call if that is just about the convenience of a service to have someone brought to them. But what capacity will they have to follow-up the person at home?

Services should be available to people who need them, not withstanding the legal framework that the police may or may not have applied. So I find this consultation requirement the most interesting of all the new amendments because I think I can see what it’s getting at, but I admit to wondering how that will actually work in practice. And I worry in particular that people may be subject to de facto detention by frontline officers or schemes because somewhere in our recent history somebody unilaterally decided that less s136 is a good thing and that we’ll measure the success of these programmes with reference to their ability to reduce the use of a power which is simply not relevant to most of the referrals they receive. (Most street triage doesn’t happen in the street; and most of what they do isn’t triage! – apart from that, it’s well named.)

Areas need to be clear: how are we consulting; why are we consulting; what are we consulting about, precisely – when should officers do as they’re told and how will incidents be handled if they took a view that is at odds with the advice they’d received?

The last post in the series will focus on the ‘exceptional circumstances’ in which police custody may still be used as a Place of Safety for adults – this will not be written until the statutory Regulations are published by the Government.


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

Winner of the Mind Digital Media Award.