Imagine this: you’re the police officer attending an incident where, despite your best efforts to do something different, you have no choice but to detain someone under s136 of the Mental Health Act 1983. You considered street triage, you called family and ultimately felt there was no other way, consistent with keeping this person safe from what appeared to be a very serious inability to recognise people known to them and the reality in which the police were handling an incident.
An ambulance arrives on scene and, accepting there was some difficulty in fully examining a distressed person, now detained by officers, there was no obvious reason to remove the person to an Emergency Department for injuries or illness, beyond the concerns that existed about the person’s mental health. The police control room shouts up to the various places in that area designated across the agencies for the purposes of receiving people detained by the police and none of them is willing to receive, save one. They make it clear there could be a 24hrs delay in the person being seen because of other people detained in their facility and during that time, the detainee is going to have to remain in the police vehicle or ambulance, outside. Of course, 24hrs is all the time allowed to fully complete whatever assessment or admission process is required, so that raises various practical problems if we can’t begin until the time’s already run out!
You quickly wonder whether police custody could be used but the situation does not fit the criteria laid down in the Mental Health Act (Place of Safety) Regulations 2017 – this means police custody cannot be used, by virtue of law. So you reconsider the possibility of removing the person to an Emergency Department, notwithstanding paramedic advice that this is not necessary for any obvious clinical reason. Upon arrival at the location, the Emergency Department is not willing to receive the person, but happy enough for them to wait in the ambulance outside their ED.
DECISIONS, DECISIONS …
What do we want police officers to *DO*? … at 11pm on a Tuesday when the great and the good of all organisations are tucked up in bed, unaware of the deadlock which we’ve created between us? In particular: why is emergency detention under s136 something which can mean you’re excluded from all services despite the law demanding you be removed to one of them; and vulnerable people condemned to sit or sleep in a vehicle for an indefinite period of many hours until someone or something unlocks the Mexican Standoff?!
It was very obvious in advance of the amendments to the MHA contained within the Policing and Crime Act 2017, that we could see these kinds of situations if we were not careful. It seemed likely to me that we would not see all areas being careful to understand the implications of the changes. No matter where you’re reading this, ask yourself the question –
“Someone is detained by the police under s136 of the Mental Health Act – the designated Places of Safety are full (or otherwise unavailable); there is no clinical justification for removing that person to an Emergency Department; and the legal criteria for using police custody as a Place of Safety are not satisfied. Which location should be used to keep the person safe in a dignified way and complete the legal obligations to ensure an assessment of their needs and any arrangements for their care?”
In case of doubt: places of safety are full; ED is declining, police station cannot be used by law – so where, precisely, do we take this human to help them?! The thing is, local protocols should exist in every area which outlines these things. What you shouldn’t really do is just set up everywhere with the potential to say “No”, independently and leave a junior police officer to improvise.
POTENTIAL SOLUTIONS
In a few examples where this has happened, I’m aware that practical police officers have started to think more widely. Could we take this person to their own home address or to the address of family or friends? That has legal barriers, too: in order to do so, you must have the consent of the person detained. If you are proposing to take them to a domestic address also controlled by someone else, that second person’s permission is also needed. So for example, if you want to take me to my own home, you must also have my wife’s permission in addition to mine; if you want to take me to my mother’s house, you must also have her permission in addition to mine. And this solution is also fraught with practical problems, in that the AMHP who will undertake the assessment, also has to believe that it is an appropriate location for an assessment.
But there is another solution and it’s this want I want to end by emphasising, because I’ve seen this happen in the real world, I know it’s been discussed as a solution in other incidents, but rejected by all concerned despite it offering a way out of the deadlock; and I suspect it will become more important to think about this in the future. Can we remove the person from the MH trust area where they were detained to a neighbouring trust area with an available s136 suite?
If you remember nothing else from this post, remember this one point:
There is absolutely no LEGAL reason whatsoever why someone detained in police and mental health trust area A cannot be taken to a place of safety in a neighbouring area, even if it is a different police force area with a different mental health trust. NONE.
Of course, whether you did this would depend on many factors and crucially, on the willingness of the detaining police force to travel AND on the willingness of the mental health trust with the available Place of Safety to receive this person for assessment. In addition to that, you may have the additional problem from the neighbouring area’s AMHP service that they are not always entirely keen to assess people who have been imported from elsewhere. In all fairness to them, amongst other practical problems, the benevolent mental health trust would not always have access to patient records, if there are any. (Most people detained under s136 MHA are ‘known to services’, so there will be medical records most of the time – it’s not an unimportant point.)
CROSS BORDER
Be really clear about this point: this stuff does already happen in the real world. I dealt with a complaint against the police about eight years ago where mental health services complained that officers had taken a man “over the border” to the neighbouring mental health trust area. They argued that in the absence of their place of safety being available, the police should have taken the man to custody “as per NHS policy”. Officers dealing with the situation where aware that the person they’d detained in area A was actually a resident and a mental health patient in area B – oddly enough, the police don’t just detain people who are in their own home areas. Humans have a nasty habit of travelling to visit places and people for reasons like employment and leisure. So rather than condemn the person to custody, they used some common sense and asked the Place of Safety in the person’s own home area if they’d be willing to receive them?
They said yes! Apart from a slightly longer journey of no more than 3 or 4 extra miles, the removal to this neighbouring area made a lot of sense. It placed the patient in their own area, where the assessing professionals would have access to medical records relating to them. Had they been detained in area A’s police station, the AMHP assessing would have had to make phone calls for that information and have it summarised over the phone. So why wouldn’t you do this when the only person not happy about it is an AMHP in area A?! Oddly enough, the complaint was not upheld because para 10.22 of the Code of Practice (2008 – now reflected in para 16.38 of the 2015 Code) actually states the officers should consider the alternatives to police custody before using it as a last resort. How would officers explain using custody if they had deliberately not take the person to an available place that was willing to receive them?
We’re going to have to start talking about this more – there are some streets in England where the distance to the locally designated Place of Safety in that mental health trust area is considerably further than what happens to be the nearest Place of Safety. And the initial point I want to make is this: section 136 is an emergency intervention. With physical healthcare emergencies you’d expect to be taken to the nearest ED – or for major trauma or certain children’s health emergencies, the nearest relevant ED, if need be via air ambulance. Section 136 is an emergency situation, by definition – not only should local protocols set out entirely unambiguous, they should ensure a situation where we never, ever don’t know what on earth to do.
11PM ON A TUESDAY
We have created a situation in which it may be neither practically nor lawfully possible for the police to take someone somewhere, without improvising their way through a situation and that cannot be guaranteed. Apart from making the very obvious point that this risks the dignity, the health & safety and the impact of the s136 process on the person detained, it also risks things like adverse media headlines and legal action of various kinds. I can only imagine what a Coroner would say if someone died in the back of police car sat outside an ED because every relevant building in a local area was refusing to help the person or guide the officers to a solution.
Protocols required of us all demand that this situation be avoided. So, we probably should dust those things off and check that they do, unless this has already been done since December 2017. Quite frankly, the public and junior police officers deserve far better than to be left to sort any failure to plan for obvious and predictable implications of legislation that was telegraphed years in advance.
And for those who haven’t clocked it year: here’s 4yrs warning that police stations may be removed entirely from the MHA as a Place of Safety, if the recommendations of the Wessely Review are taken forward. So everything I’ve written above will have to be considered again, for people who are exhibiting the most demanding and challenging behaviours of all. Might be worth starting to think about that now, in all fairness because of the national guidelines already in existence pointing in this direction and the comments we know Coroner’s have already about it.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2019
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – www.legislation.gov.uk
Mental Health Cop 
Playing devils advocate here, because this prob would never happen….
Cop has made all reasonable attempts to locate a place of safety, all of which have been refused as outlined above. They know that if they do detain, the subject will not be assessed within 24 hrs and could well be held unlawfully after that, likewise described above.
Cop has an honestly held belief that whilst they have a power to detain, the necessity cannot be provided for, because the aim cannot be achieved. So they walk away after advising subject or perhaps a family member to phone MH services for assistance.
What are the thoughts on legal/misconduct culpability for the cop, if it subsequently all goes wrong?
The easy answer to that, is the family won’t find a number in Mental Health services that will take their call without a referral from their GP or without their family member already being under CMHT. Legal standing I’m not sure.
I work in a PICU and you describe the massive hole we have between getting people in crisis into care in mental health.
The logical thing would be every A&E has a wing with RMNs to care for those patients; a place where they can safely be until assessed for further treatment if necessary. Or a room on PICUs where they can wait safely until they are assessed. The latter is made difficult because many PICUs are, like mine situated within low secure units and do not have their own doorways, therefore the person cannot enter the unit unless under section!
Mental Health ties itself in knots and needs a huge overhaul, we worry about human rights so much we end up forgetting what we are actually trying to achieve. We say phrases like “patient centered” and meanwhile there are still people waiting to get treatment, to be seen, or to get out of a van.
We still have a long way to go.
I would love to do work with the police though, despite the despair!!