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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).

MAIN ADMISSION PROVISIONS

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..

LESS FREQUENT PROVISIONS

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)!

ABSENT WITHOUT LEAVE

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.


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Section 137 Mental Health Act

Where do the legal powers come from in the Mental Health Act 1983? – by this question I mean: what section of the Act do you point to when cross-examined in a court to explain from exactly where you derive the authority to use reasonable force to give effect to the Act’s intentions? There are various coercive things that are necessary where the Act is involved and once decisions have been taken to do them, to what authority would you point to authorise that use of force? Police officers quite like answers to questions like this, not least because we find clear understandable answers to those questions in the substantive criminal law that we rely upon so much when making arrests or doing stop & searches. Most officers of relatively little service will tell you confidently that they draw upon three main areas –

  1. Section 3 of the Criminal Law Act 1967 – which actually allows anyone to use reasonable force to prevent crime or to lawfully apprehend offenders.
  2. Section 117 of the Police and Criminal Evidence Act 1984 – which allows police officers to use reasonable force to undertake the various coercive practices that are referenced throughout the Act (arrest /  searching of persons or premises / taking fingerprints or other non-intimate forensic samples.)
  3. Common Law – covering the often relied upon fourteenth century power of a Breach of the Peace, but officers can also draw upon the Common Law of necessity in various situations, including some urgent medical situations.

What about coercion under the Mental Health Act? Police officers have legal powers of their own: like s136 MHA and there are a range of other powers in the Act which may be exercised by a range of people, including police officers.  Most, but not all of these are covered by Section 117 of PACE in ters of authorising the use of reasonable force – section 26 and Schedule 2 of PACE lists various legal powers under the Mental Health and other Acts which are to be regarded as preserved powers of arrest. This includes s18(1), 35(10), 36(8), 38(7) 136(1) and s138(1)- you’ll notice it does not include s135(1) and s135(2) MHA warrants! So s117 applies to those preserved powers and officers should refer back to PACE to justify their actions – the authority to use force when executing the warrants is derived from the warrants themselves.

THE OTHER STUFF

But there are even more circumstances in which police officers may be asked to use force, where the Mental Health Act is applied –

The detention and conveyance or patients to hospital after they have been ‘sectioned’ elsewhere; the transfer of patients between hospitals where the police are assisting AMHPs or NHS staff; the removal to a seclusion room of a patient who is detained in hospital under the MHA and where staff are asking for police support (which occurs for a range of reasons). We also know that requests are received by the police to restraint patients in order to assist in the administration of medication without consent and that on many an occasions officers have agreed (or felt pressured) into going so.

In just some situations, traditional police powers would apply to some of these things. If officers attended a mental health unit, as I have done on countless occasions, and found a situation where staff going about their lawful business have been assaulted and are at risk of further assault, s3 of the Criminal Law Act can still be used to justify a use of force to prevent that crime. It may very well be a proportionate response to the risks involved, including by assisting to seclude someone. However, there are many where situations where this is not the case.

Imagine a MHA assessment in someone’s home: a patient has been ‘sectioned’ and the AMHP now wishes to transfer the patient to hospital: the AMHP has a power under s6 MHA to ‘detain and convey’ the person – the authority to use force is clearly implied in the wording of that section.  Imagine being called to a ward to restrain someone to administer medication: this is far less clear-cut and you have to start stretching things to a point where it is too tenuous for words, to convince.  But this brings me to the clue that is in the title of the post!

SECTION 137 MHA

The section states –

137(1) – Any person required or authorised by or by virtue of this Act to be conveyed to any place or to be kept in custody or detained in a place of safety or at any place to which he is taken under section 42(6) above shall, while being so conveyed, detained or kept, as the case may be, be deemed to be in legal custody.

137(2) – A constable or any other person required or authorised by or by virtue of this Act to take any person into custody, or to convey or detain any person shall, for the purposes of taking him into custody or conveying or detaining him, have all the powers, authorities, protection and privileges which a constable has within the area for which he acts as constable.

137(3) – In this section “convey” includes any other expression denoting removal from one place to another.

Quite a mouthful isn’t it?! – could benefit from being translated into clear English at some stage.  It essentially means, that if you are authorised to detain or convey a person under the MHA – or you are required to do so – you have all the powers in law of a police constable and those you detain and convey are in lawful custody. You should remember that it is an offence at Common Law to escape from lawful custody; and to resist or to obstruct a police constable in the execution of their duty is also against the law. It therefore would be an offence to resist or obstruct a person who is detaining and conveying under the Mental Health Act, arising from this section.

Still gets us on to the question of where that authority to use of force comes from, does it?! The Code of Practice to the Act makes various references to the use of reasonable force, least restrictive practice and so on – see chapters 14, 16, 17 and 28 in particular. The courts have variously upheld the principle that use of reasonable force is implied and perfectly lawful – how else do you detain and convey someone who may be unwilling whilst in distress after all other avenues have been exhausted? But this is the point that makes some officers nervous –

Nothing in the Code of Practice may make lawful something that is unlawful under the Act – and vice versa.

IMPLIED AUTHORITY

They needn’t be. Like the Mental Capacity Act 2005, the Mental Health Act 1983 has implied authority to use reasonable force: there is no specific section that equates to section 117 of PACE.  Section 137 is one of those sections that gets quite near to stating something explicit and the point to note here is that it is restricted to detention and conveyance. So you may remember that officers are sometimes called to mental health units at the request of staff to undertake other coercive practices. I recall many years ago being informed by our control room at around 6pm that a unit was asking if officers could attend at 8pm because a patient was refusing medication and they anticipated he would need restraint.

Now I’ve known more spontaneous situations where staff have on their own attempted to administer medication under Part IV of the Act and have encountered exceptional difficulty which led to a 999 call for urgent help. There are few points to make about that but I can at least understand how such a call could come about. But pre-booking the police to administer medication?! – that’s not happening, let’s be honest! Apart from anything else, more than one police force has received legal advice about such situations and it has always made clear there is no legal duty whatsoever on the police to restrain patients for the purposes of administering medication and there are easily-raised questions about whether officers would actually have any power to do so. Nothing in section 137 or in Part IV of the Act relates to such practice by people other than medical or nursing staff.

So it is beyond doubt, from the authorities implied in this section, reinforced in the Code of Practice and in the decisions of the courts that police officers would be permitted to use reasonable force in the least restrictive way, to ensure the Mental Health Act is given effect where thought necessary. Of course they should try as hard as possible to avoid doing so – but if it were always avoidable, no-one would have called the police.


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

Winner of the Mind Digital Media Award.


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Not Quite An App!

This post is mainly to provide a list of the internet links that I used to create my own quick-reference folder on my phone, as shown in the picture. If you know how to drive your iPhone or other device or you know  that you don’t want such a folder in your’s, then this post is not for you and I’d recommend you put the kettle on instead!

Over the last week, I’ve had feedback from various kind folk about the usefulness of the BLOG.  One of them included a paramedic screen-shotting his phone to demonstrate to colleague that he’s got the BLOG ‘on tap’ to be used at jobs, if need be. This is something I’ve had for some while – the amount of times I’m in the BLOG writing posts, replying to comments and so on, I use the thing as much as anyone else. And of course, one of the secret reasons behind writing the damned thing(!) was that I find myself receiving more or the less the same email queries across the main topics of policing and mental health that it remains a real time-saver to be able to quickly pull up a link to a post and invite the person to read it rather than me re-write the answer all over again.

So on my iPhone and on my iPad, I have a little folder in which I have quick links to various pages of my own BLOG – the ones that I use the most to look stuff up. I also have three links to the HM Government legislation website, covering the Mental Health Act 1983, the Police and Criminal Evidence Act 1984 and the Mental Capacity Act 2005. It just makes my work so much easier and last night on Twitter, I recommended the idea to people who might benefit from using it and had technology queries about whether I could do an App – I’m afraid I haven’t got a spare thousand pounds kicking about to get it done properly and without irritating adverts all over it so that’s ruled out for now!  But I also had a query about how to do the folder thing.

CREATING A FOLDER

It’s not quite an App, but it’s all I’ve got for now! –

  • Create the icons you need –
  • Get onto your internet browser on your SmartPhone and search for the BLOG.
  • Once it’s opened in the browser, click the icon that allows you to ‘share’
  • You’ll probably then have an option to ‘add to home-screen’, or similar.
  • You’ll probably get the change to label the icon – the word that appears under it;
  • Once you’ve named it and confirmed, the labelled icon will appear on your home-screen like an App icon.
  • When you click it in future, it will open your internet browser and take you straight to the page for your greater convenience.
  • Repeat this process for as many pages as you need – you don’t have to choose the ones I have chosen.
  • Combine those icons into one folder –
  • On Apple devices you press and hold them then place one over the other and it creates the folder.
  • Keep adding your pages to the folder in the same way, as required.

THE LINKS

The links I used if you just want to save them were –

There you go – if you read this and thought, “I knew that!” or “How patronising!”, I was asked to explain how I did it for the benefit of some.

Hope it helps!

Michael./


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

Winner of the Mind Digital Media Award.