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Discharging Section 136

When does detention under s135 or 136 end, once someone has been detained in a place of safety?!  It’s actually easy to answer, just harder to put into practice.

It ends when one of three things happens –

  1. A Doctor says, “this person is not mentally disordered within the meaning of the Mental Health Act”;
  2. An Approved Mental Health Professional has made necessary arrangements for that persons treatment or care;
  3. 72hrs expires after their arrival at the first place of safety to which they were taken after detention.

Easy, right?!  Maybe.

PUTTING IT INTO PRACTICE

It will get harder in the real world, when we start to see real circumstances intruding on this theory with a big load of “so what happens when ………” questions.  First of all though, some technicalities about DRs – the Act itself requires that after removal to a place of safety, the person is assessed by a ‘registered medical practitioner’.  This means it as ultimately acceptable for any doctor to assess the person, whether they are the country’s most eminent psychiatrist or a newly qualified AND registered doctor working in an Accident and Emergency Department, for example.  However, the Code of Practice to the Mental Health Act states that ‘wherever possible’ the Doctor should be section 12 approved, which means they have particular experience of treating patients with a mental disorder.  If a section 12 DR is not used, the reasons for doing so, must be recorded.  There are a few situations in which this conflict between the ideal of section 12 approval can push up against other doctors becoming involved in the assessment.

  • Police custody – most police custody officers are going to call a Doctor wherever a patient states that they have mental health problems.  It can be relevant to determining various issues, not least of which is that person’s fitness to be detained in custody.  Some force medical examiners are section 12 qualified, but many are not.  It is not a requirement of their role, because the police never need a s12 doctor for any purpose they are involved with.  Statutory assessment for s136 or under the MHA for admission is a matter for the NHS.  So where a s136 is taken to police custody – for whatever reason – there can be difficulties if the FME turns up and offers a view about the detainee’s supposed mental disorder.  I recall the FME who suspected a head injury, stated he ruled out mental disorder and referred the bloke to A&E for further assessment of the injury.
  • Accident & Emergency – obviously, some patients detained under s136 will require assessment in A&E first of all because of physical injuries, overdose fears or other medical problems.  Doctors from A&E will often have contact with the patient before the s12 DR organised by the AMHP gets involved.  Whilst A&E doctors (in my experience) will try as hard as they can to stay clear of decisions that surround the use of s136 and its outcome, there are some situations where the issues are too closely associated for them to remain outside that process.  I recall the situation where officers thought someone had a mental health problem and detained them, only for paramedics to identify low blood sugar and remove them to A&E.  Doctor there attributed the presentation of the patient to diabetes very quickly and ruled out mental disorder – so s136 ends.
  • Inpatient admission – one further complication occurs after A&E where a patient is admitted.  If physical injury or overdose means that someone is admitted to ward in the acute hospital, the section 136 is still continuing until one of those three things occurs.  Inpatient wards in acute hospitals rarely have nursing staff who can keep someone detained, as would be the expectation in a mental health unit place of safety, and inpatient admission can be associated with admission that will last days, not just hours.  Who remains responsible for the person whilst on that ward?!  Many stories occur of officers remaining in hospitals for days with long delays in organising the s136 assessment.
  • Ambulance handover – similar legal considerations apply where officers hope to hand a detained person directly to paramedics after arrest.  I’m aware that this has been looked at, including in some areas where the ‘ambulance’ used to transport people from the point of detention under s136 is a specially commissioned service using a secure vehicle.  The problem is, that the power of detention under s136(1) is specific to constables and nothing in the Act implies that can be handed over.  The power of detetnion under s136(2) is the power that relates to other professionals, but it only kicks in once a person has arrived at a place of safety.  For those reasons, I’ve never thought it would be lawful.

IMPLICATIONS

The most obvious implications of the first two issues, is that the non-s12 Doctors could get it wrong, not being specialists. Obviously, a head injury may exist comorbidly with a mental disorder, so our FME may have viewed something as either / or, when in fact the patient was injured and in distress. The same could have been true for our A&E doctor who leaned towards an assessment of diabetes – no reason why he couldn’t also have depression or another psychiatric condition. In the third situation, the obvious implication and concern for the police will be an expectation that they will remain for hours or even for days, pending the acute medical situation allowing for an AMHP / s12 DR assessment of mental disorder. On the one hand, the case of Webley reminds us that until the NHS are agreeing to take over responsibility for detention and conclusion of the process, the police continue to bear a duty; but on the other hand we have to be sensible about the ability of some patients to abscond. I recall a s136 detention where A&E staff artificially induced a coma in a patient exhibiting disturbed behaviour. Why would the police need to remain in hospital with a man who is unconscious?! … or with a man who can’t walk because of a broken ankle? Well, maybe the broken ankle patient is still willing to be violent towards staff, notwithstanding that he can’t run away?

All cases on their merits, by both police and NHS, surely?!

As with everything, each cases comes back to individual circumstances, discussion with partners and appreciation of each other’s position. There’s no obvious reason why a hospital should insist upon police remaining on an acute hospital when a patient is unconscious – let’s be sensible! Equally, police officers need to remember that A&E and acute hospitals are not set up and were never asked to be areas of legal detention for those subjected to the Mental Health Act. Where it may not be safe to walk away from a situation and in the absence of being able to negotiate a handover that is agreed as safe – a new requirement of the 2015 Code of Practice, in paragraph 16.34 – the police need to be aware that the law of negligence would find them wanting, if they did leave and harm came to the individual in predictable circumstances.

But whatever situation you’re wrestling with, it comes back to three things –

  1. Has a Doctor said, “This person is not mentally disordered within the meaning of the Mental Health Act”?
  2. Has an Approved Mental Health Professional made necessary arrangements for that persons treatment or care?
  3. Has 72hrs expired since their arrival at the first place of safety to which they were taken after detention?

If the answer to any of them is “Yes”, then s136 has legally ended; if the answer is “No”, then it is still running. ______________________________________________________________________ The Mental Health Cop blog Badgewon the ConnectedCOPS ‘Top Cop’ Award for leveraging social media in policing. – won the Digital Media Award from the UK’s leading mental health charity, Mind – won a World of Mentalists #TWIMAward for the best in mental health blogs ccawards2013 was highlighted by the Independent Commission on Policing & Mental Health – was referenced in the UK Parliamentary debate on Policing & Mental Health was commended by the Home Affairs Select Committee of the UK Parliament.

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The Grey Zone

It is now a requirement of the new Code of Practice to the Mental Health Act that police officers should, where possible, ring a mental health professional before initiating their use of section 136 of the Act.  Whilst that process is going on, there is a very interesting legal situation in play! –

Is the person detained whilst the phone call is happening and free to walk away? – or not?!

It could conceivably take many minutes to get through to a mental health nurse on a triage or crisis team, to explain the circumstances and form a view or exchange information relevant to the officer’s decision. If the person walked away before the phone was answered or whilst the conversation was ongoing then the officer would have to decide whether or not to legally detain the person –

  • If they would legally detain that person, were they not, in fact, detained from the start?
  • If they would not detain the person, why were we ringing the mental health nurse as an alternative to s136?!

In other parts of police law, it is demanded by Codes of Practice that people are told whether they are detained (for example, for a s1 PACE ‘stop and search’) or free to walk away (voluntary interview at a police station). This information is vital both to a person’s understanding of their legal position and to their ability to draw upon the rights and supports they are entitled to.

DE FACTO DETENTION

The last time I had an encounter with the police service as a private person, it was in relation to someone else’s mental health incident – I’m obviously not going to describe what was involved or why I was but this grey area of whether someone is detained against their will or not became important.  I remember saying to the police officers, ‘This person is either detained or they’re not – so they can either walk out right now or you should inform them of why they are not allowed to do so, that they may exercise the legal rights you haven’t explained to them, if they wish.’  Stoney faces all round.

That was not a street triage, avoidance-of-s136 type incident because there are various versions of de facto detention in policing and mental health, as there are in mental health care more generally.  In case you are unfamiliar with the term, it relates to circumstances in which someone is, in fact, detained without having been held by law,. informed of them fact and having had their rights explained to them.  So less possibility of fuss being kicked up by the individual, who has been disempowered, or by relatives or solicitors on their behalf.

The various versions include –

  • Officers ‘voluntarily’ assisting someone to A&E – and then remaining there to ensure the person doesn’t leave.  Was this person not, in fact, detained to A&E but without resort to legal niceties? How often do we see officers signposting people to A&E and then staying with the person because there is a potential risk and the officers know that A&E won’t detain the person?!  In what sense was that person not detained?
  • Holding someone whilst waiting for street triage – it could take fifteen minutes to half an hour for a street triage resource to turn up at an incident where frontline officers are waiting with someone.  What if that person didn’t want to stay – did we make it proactively clear that they didn’t have to?  What if we had made it clear and they walked, only to then be detained under s136?!  Trust and confidence taking a hit, I suspect.
  • Holding someone in custody after PACE expires for an inpatient MHA bed to become available – we can estimate that this situation occurs every day in England and Wales, under what laws we’re not quite sure.  Yet we are sure that they were able to leave the station because a custody sergeant with no grounds to detain the person will have been told by an AMHP or psychiatrist that they can’t be released.
  • Falsely using other legal powers as a proxy, in private premises – we know that stories still abound about officers detaining people to prevent a breach of the peace; or to remove someone outside a premises where s136 is then instigated; or relying upon the Mental Capacity Act.  In fact, what has been interesting about street triage is the extent to which mental health nurses think these things can be done, too!

So this is a post about rights, in essence.  I like to exercise mine from time to time because they are my rights – the things I don’t have to justify or explain to anyone when I’m making important decisions about myself.  

I’ve had this niggle from the start about this aspect of street triage, because it sits alongside the other kinds of de facto detention we’ve seen in the past. There is no statute I’m aware of that allows someone to be detained by the police for the purposes of the police contacting someone else – and this is a frustrating part of the job, on occasion. More than once in my career I’ve approached someone for a discussion and found that they ran immediately. Maybe they were wanted on warrant by the courts or missing from somewhere and keen that I didn’t do a PNC check to discover which. What I do know is that in some of those situations I had legal grounds to grab them as they started to run and in others, I didn’t. So some got grabbed and we invariably learned something surprising a few minutes later, but others were left to it.

To avoid complaints, unnecessary detentions and assaults, it’s important we’re clear about the grounds upon which we start interfering in people’s lives.  Some people, notwithstanding the problems in their lives that arise from trauma, illness and distress, don’t want to engage with mental health services and unless and until relevant laws are instigated by those who feel people should be compelled into assessment or treatment, these are decisions they are free to exercise, just as people can with other kinds of healthcare. The law requires us to assume people have capacity for such decisions, until otherwise determined. So there are additional ethical questions that arise from the role of the police as gatekeepers to our coercive mental health system and this is a discussion we don’t hear much about at the moment.

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Think! – why A&E?!

You may well be familiar with the NHS ‘Choose Well’ campaign, or versions of it? – the presenting of a series of different characters with various medical conditions and using them to highlight which part of the NHS should have been accessed, like the poster, above?

  • Self-care
  • Pharmacist
  • 111 of NHS Direct type phone line.
  • Walk-in minor injuries units
  • GP or GP out-of-hours services
  • Accident and & Emergency Department

And then we see campaigns that aim to reinforce these principles – most recently, I came across a YouTube video from Blackpool –

It is not my intention here to criticise Blackpool or the principle that we need public eduction about how to make healthcare choices.  Heaven knows the police could also do with some kind of campaign about how to make policing choices given the hilariously inappropriate 999 calls we receive.  But what strikes me about this kind of campaign, which does affect policing and mental health care, is at least two really important things –

  • There is no mention whatsoever about mental health – mental health accounts for 23% of the NHS ‘burden of disease’ and for approximately 15% of all A&E attendances.  Yet is is barely mentioned in the first part of the ongoing NHS England review into Urgent Care and not mentioned at all in this video.
  • The overt reference that someone ‘should not have come here’ – patient blaming, without context.  It assumes that the other options were available, accessible and known to the person in those circumstances. We know this is often not the case.

THE EMERGENCY SYSTEM

One problem that Accident & Emergency has in common with the police and ambulance services, is that it is part of a 24/7 accessible system that is potentially there to ‘do something!’.  Each of those agencies can illustrate demand upon them that should, in an ideal world, have gone somewhere else, but didn’t.  And the police, as a non-NHS agency, have a unique perspective on this where they encounter members of the public who have health issues which may sit outside the expectations of A&E.  Recent discussion about the Crisis Care Concordat highlighted A&E’s perspective that the police were bringing too many people to their services and, presumably should be reminded to ‘choose well’.  I was struck by a couple of things in this observation.

Where a person has been encountered in their home by officers attending a mental health emergency incident and they feel that immediate care is needed, they often have very little option outside referral to A&E. Of course, street triage schemes offer the potential to prevent this need but on my last experience of shadowing a triage scheme, I watched an A&E referral be instigated by a nurse in circumstances where I’m not at all sure I would have done the same. I remember watching the patient walking in to A&E thinking that I hope they got the response they need, because research indicates that many don’t. More importantly, where else could the police, street triage or anyone else refer someone in urgent need? There is no other option, in many instances. Not everywhere has a walk in centre for mental health issues. I must find out what happens if someone in mental distress walks in to a minor injuries walk in centre – does anyone know?

So this comes back to a wider point of discussion:  to where should the police refer someone who believes that they need access to mental health services? There is (usually) nowhere – it is not a standard part of the design of our health services, except for those who are already in receipt of secondary mental health care from community mental health team. Even then, there are capacity problems as CrisisTeams struggle to manage demand, which is estimated to be up 15% over the last five years. In my evenings shadowing street triage, nearly half of the workload I saw was not calls to the police that the attending officers or control room felt could be better managed by the multi-agency car – it was merely overspill from the mental health system who had run out of crisis resource and were now passing non-urgent tasks elsewhere because they could.  And they were not tasks that had any policing component.

EMERGENCY CARE REVIEW

The poster at the top of this BLOG tells us that “A&E is for emergencies and life-threatening illnesses only.”  The problem with this approach, is that no-one appears to have told the rest of the NHS and such simplicity takes no account of that.  My wife broke her finger a couple of years ago: it was not an emergency and it wasn’t life-threatning. Where else would she have been expected to go because I’m sure nowhere else would start taping her fingers up and assuming it was a simple break that would pretty much heal itself until they’d done an x-ray.  Perhaps I’m missing something here?  The number of people who’ve made it clear that they have been signposted to A&E by 111 or by a mental health crisis team are so great that they can’t all be making it up simply to justify their decisions!

I am looking forward to seeing the publication in due course of the Care Quality Commission review into emergency mental health care. It touches on some of these issues but A&E need to understand, as police officers and paramedics do, that much of the demand that occurs for us all comes from the fact that “something’s happening that ought not to be happening about which somebody outght to do something now!” For that reason, I’m also looking forward to the second part of Sir Bruce KEOGH’s review into Urgent Care to see if mental health manages to achieve impact onto our thinking about the contribution. The Urgent Care review is looking across the whole NHS and we already know from Part 1 that it is focussed upon what other, non-hospital services may need to be available, to deliver the prevention and early intervention agenda in health. With 23% of the burden of disease relating to mental health, it will be a big omission if it is disregarded. What about the parity of esteem we hear so much about?  Perhaps the NHS England taskforce on mental health, chaired by Paul FARMER, will address that?

I want to see the above video edited to include a police officer detaining someone under s136 MHA in A&E and taking them to a Place of Safety. That is what we know A&E have called for on a lot of occasions, and not only when the grounds for doing so are legally satisifed. The worst news for everyone is that the new Code of Practice obliges the police to undertake their responsibilities in the least restrictive way. As such, where someone is wanting to access services, it should never be a consideration to legally detain them in order to ensure that those services respond. If the answer to the appropriate NHS location in those circumstances is not A&E, then you just need to let the police know where such patients should be sign-posted or taken. Evidence is  that if police officers know the alternatives, they will use them.

So if I you could just let us know once you’ve decided?!  Thanks. 

I want to conclude by reinforcing that nothing here should be construed as criticism of NHS colleagues in Accident & Emergency Departments I’ve been proud to work alongside for years. These people are not only nailing jellies to the wall each hour, but juggling yet more jellies and nails as they do.  This is a point about systems!

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The Mental Health Cop blog

Badgewon the ConnectedCOPS ‘Top Cop’ Award for leveraging social media in policing.
won the Digital Media Award from the UK’s leading mental health charity, Mind
– won a World of Mentalists #TWIMAward for the best in mental health blogs

ccawards2013 was highlighted by the Independent Commission on Policing & Mental Health
– was referenced in the UK Parliamentary debate on Policing & Mental Health
was commended by the Home Affairs Select Committee of the UK Parliament.