QUESTION SENT IN FROM A NEW BLOG READER: and with permission, I’ve turned my email reply in to a short post as I’m not sure I’ve covered this before!
The question centres on where the police stand after Mental Health Act assessment has occurred whilst someone is detained under section 136 MHA and where a bed has been identified for hospital admission under the MHA but it won’t become available for a few hours:
DELAY ACCESS TO A BED
Do the police have to remain with the patient until the bed is available?
We know that on occasion, hospitals may know a bed will become free shortly, but it’s not available at the moment. So when an NHS bed manager is contacted by an Approved Mental Health Professional (AMHP) for a potential admission, they may say “if you’re asking now, no beds available – but we do have one available at 9pm”, for example. Well, if an AMHP is dealing with a new admission at 5pm, it may be they decide the best thing to do just wait and aim to make the application at that 9pm point, delaying their MHAA application until the appropriate time. Where someone was assessed at 5pm having arrived at the Place of Safety around 12pm, for example, this means there is ample time remaining on the s136 ‘clock’ to contemplate a four hour delay until that bed becomes available.
On other occasions, the bed may not be available for a larger number of hours: I’ve known situations where assessment occurs in the late afternoon and it’s determined the bed will become available the next morning. The same point applies, as long as the s136 period of detention keeps running because s136 is for examination by a doctor, interview by an AMHP and necessary arrangements to be made.
LEGAL ISSUES
So, is this appropriate / lawful, etc.?
Yes – if the AMHP learns of the potential bed at 5pm, it’s fairly common for AMHPs to delay the application for this brief period, especially knowing it’s only a few hours and that the section 136 period continues to run until the application can be made. There is a very real risk for the AMHP that if they made the application at 5pm, the hospital may reject it because the bed is not available, fearful of an AMHP bringing the patient early when they’re not in a position to receive them. If the s136 24hr period is still running during the delay, I can see why AMHPs would not want to take the chance and they’re not doing anything wrong by delaying. As I state: section 136 is also about making necessary arrangements for care and in this scenario, the arrangements are going to take a few hours to organise, but it’s all good as long as 136 is still running.
POLICE REMAINING
So do the police have to remain with the patient after the MHA assessment, until the application is made?
If we look back to the civil case of Webley, we’ll remember there was a claim against a London hospital and the Metropolitan Police about officers after the police walked away from a man who then left A&E and jumped from height, suffering life-altering injuries. In that particular case it wasn’t a 136 detention, but the man was in police control / custody when he arrived at hospital – the officers were busy transferring him as recently ‘sectioned’ patient to a mental health unit from police custody. Whilst travelling in the ambulance, the man had some kind of seizure and they all diverted to St George’s Hospital in Tooting, the nearest A&E. Officers then asked A&E staff to take over his care, shared relevant information with them about the background and left after security were in a position oversee him in the department. The court case was successful against the hospital but not against the Met, because the judge said officers had left only when others were agreeing to act, supplied with information by which to do so and that they were able to do so.
In our hypothetical case, above, if officers left the person detained under 136 because the AMHP has completed the MHA assessment, and if they did so without ensuring someone else was taking responsibility for the ongoing detention and care until the bed became available, the risk is the person may find themselves able to leave unopposed (remember how uncertain some healthcare professionals are about detaining people under s136 MHA once the police have left) and the officers or the service could find themselves liable for any untoward outcome.
But it’s really worth remembering this! — where someone has been removed to a Place of Safety under the MHA, the police is not the only agency who can remain with the patient pending assessment and this extends to having legal power to keep the person detained (for example, by refusing to unlock closed doors or even using restraint, if justified and proportionate). There should be, in every area of England and Wales, a joint protocol between the Chief Constable and the NHS and local authority organisations who also play a role in the 136 process setting out who does what and when.
POOR PRACTICE
Is it poor practice by the AMHP to delay the making of an application?
Not really – and I only stop short of saying “No” because strictly speaking, AMHPs should make applications when the grounds for doing so are met and in section 13 MHA there is no mention of beds, hospital willingness to receive someone, etc.. (The MHA is written on the presumption beds will always be available – it was written in the 1950s when all areas had a county asylum and people could just be endlessly poured in without anyone having to wondering too much about niceties such as beds, occupancy rates or staff-patient ratios, etc.. In that sense, the law hasn’t kept up with modern MH practice. Or, we could argue, MH practice has decided to evolve away from the law, without parliamentary authority … take your pick from the two!)
But it certainly isn’t poor practice by an AMHP where the delay is only a few hours and the person remains lawfully detained under s136 in the meanwhile.
If your section 136 24hr period of detention does run out before the bed becomes available, then you do have an issue to navigate – it then starts to become relevant to think about the AMHP’s or NHS’s responsibilities in law. I’ve written about that elsewhere.
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, 2023
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 