A hypothetical query was raised to me last week based on this rough scenario –
Someone is detained under s136 MHA and taken to an Emergency Department (ED) because of medical problems in addition to concerns about their mental health. This hypothetical person remained in in ED for 18hrs before being deemed “medically fit” (whatever that means) and they are then transferred to a Place of Safety for mental health assessment under s136 MHA. With 6hrs left on the detention ‘clock’, can authorization be given to extend the s136 period for a further 12hrs, to allow more time to complete the assessment and find a bed, if it’s determined the patient requires admission to hospital under the Act?
There are few things here, but let’s start with the basics for those who may not be aware –
SECTION 136B MHA
Section 136 allows for detention in a Place of Safety for up to 24hrs in the first instance and during that time, Parliament is intending that assessment of the person’s needs will be undertaken.
- During that time, the obligation is for an assessment to occur with an Approved Mental Health Professional (AMHP) and a doctor (who ideally would be section 12 approved, but that’s desirable, rather than legally essential).
- If it is felt that assessment cannot occur within 24hrs, there are some situations in which the doctor involved can extend the 24hr period up to a maximum of 36hrs.
- Section 136B covers this and it must relate to a situation where the doctor is satisfied the patient’s condition will prevent completion of the assessment by the end of the 24hr period.
- There can be no extension of the 136 period for the purposes of finding a bed or securing the relevant professionals.
So what about our hypothetical scenario: 18hrs in, the person has been moved from ED to a PoS and we now have less than 6hrs remaining? – can the doctor extend? The wording of s136B is key: and it states –
“The registered medical practitioner who is responsible for the examination of a person detained under section 135 or 136 may, at any time before the expiry of the period of 24 hours mentioned in section 135(3ZA) or (as the case may be) 136(2A), authorise the detention of the person for a further period not exceeding 12 hours (beginning immediately at the end of the period of 24 hours).”
(2) An authorisation under subsection (1) may be given only if the registered medical practitioner considers that the extension is necessary because the condition of the person detained is such that it would not be practicable for the assessment of the person for the purpose of section 135 or (as the case may be) section 136 to be carried out before the end of the period of 24 hours (or, if the assessment began within that period, for it to be completed before the end).”
The bold is my emphasis: and it is the answer to the question.
EXTENSION DECISION
If at the 18 or 19hr point, the view is taken that there is no way to complete the assessment by 24hrs, it can be considered. But for example, if this is about being unable to secure an AMHP or a doctor to complete the assessment, that is not sufficient grounds. The reason must be because of the patient’s condition and we need to be careful not to overthink this! By 18 or 19hrs in, there is nothing left about the patient’s condition that prevents the assessment because they have been deemed “medically fit” (whatever that means). But does it matter that most of the 24hrs clock has been used up whilst the patient was not able to be assessed by an AMHP under s136? I would argue it does. The language used in s136B(2) is present tense: “the condition of the person is such …” and whatever potential medical condition had prevented earlier assessment, that condition no longer does hold it up so no authorisation possible, right?
I’m not so sure – the person’s condition doesn’t inherently change when a medic says “medically fit” (whatever that means) – and when the 24hr clock is ticking away, it isn’t always possible or easy to predict the point at which the “medically fit” thing will come – whatever it means. The judgement needs to be take in context of whether it is reasonably possible to convene the assessment in the time remaining after the person’s condition prevented it happening. As such, I’d be tempted to suggest that 18hrs of being unable to convene the assessment means you can ask the DR to extent the period once it becomes known they are fit to be assessed. Of course, nothing obliges the DR to wait until then! – they’re at liberty to make the extension decision as soon as it’s realised the assessment is unlikely to occur. But of course the practical point to make about this extension is that the DR who “is responsible for the examination of a person detained under s135 ot 136” may not be identified until after someone has become medically fit (whatever that means). As such, they may have had no prior opportunity to consider the question of extension. AMHPs may not engage a DR until they know they need one, and that’s a reality that needs considering in interpreting the wording of this.
In case you haven’t noticed my subtle and submliminal messaging: “medically fit” doesn’t mean anything at all – it’s a separate point entirely to the one I’m hoping to make in this post but it’s worth understanding why it’s problematic and this was merely an opportunity to drip that message a little more!
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All views 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 