In January 2023, a joint committee of the House of Commons and House of Lords published a written report as part of the parliamentary process dealing with the Mental Health Bill 2022. This bill – if passed – will significantly amend the Mental Health Act 1983 (MHA) and it all follows the formal review of the Act by Professor Sir Simon Wessely inn 2018. The Bill having been published, it proceeds through various stages in Parliament which includes the Committee stage where the Bill is subject to detailed consideration and MPs take evidence from relevant people before making various observations and recommendations ahead of its further progress. The two houses of Parliament reported earlier in the year about their view of the detail, making various recommendations.
Ultimately, the joint committee has urged the Government to strengthen the bill in various ways, most of them not directly relevant to the interface between police and mental health services of various kinds.
As covered in previous posts, there are plenty of things in the joint report of interest to the interface upon which this blog is focussed –
Place of Safety definition –
- The Bill proposes removal of the words “police station” and “prison” from the two definitions of a “place of safety” under the MHA.
- Most people are familiar with the definition in Part X of the MHA, covering what a place of safety can be after use of s135(1) or s136 MHA, but fewer may be familiar with the definition in Part III MHA, s55.
- This covers what a place of safety may be for patients who are to be detained MHA by criminal courts but where there is no bed immediately available. As things stand, a patient can be sent to prison or a police station (yes, really!) pending identification of a bed but this will change after reform of the law.
- The committee is fully supportive of the intentions behind these reforms, but reitterates the alarm raised by some healthcare staff about the need to ensure sufficient, high-quality, places of safety in healthcare settings to make this achievable.
- If you bear in mind that use of s136 nationally is rising and that in some areas, more than 50% of people detained by the police under s136 end up in Emergency Departments for a want of other locations being available, it’s quite right to make this point – just bear in mind similar noises were made ahead in 2017 of restricting use of police stations and despite everyone knowing more capacity would be required (not least because use of the power was rising!), it didn’t lead to increased capacity in many areas.
Forensic pathways for Learning Disabilities & Autism –
- The new Bill will change some aspects of how the MHA applies to patients with learning disabilities and autism, in effect making it much less likely that someone with either condition will be ‘sectioned’ in the normal way, ie under s2/3/4 MHA (referred to collectively as Part II of the MHA or ‘civil admission’ process).
- But nothing in the new Bill affects how Part III of the MHA applies to LD or autism and this is where the criminal justice system makes decision to detain MHA and therefore, whilst Part II may not apply in some situations, Part III still can.
- The Committee quite fairly mentions concerns raised in evidence about whether this may mean patients with those conditions will be criminalised – by police officers using criminal powers to detain people for behaviours reported to them as disturbing, in situations where the person is not going to be ‘sectioned’.
- One to watch carefully as the Bill progresses, for its potential unintended consequences, I would agree because Part II now only applies to LD & autism where someone is engaged in “abnormally aggressive or seriously irresponsible” conduct. Guess who be receiving phone calls about either kind of presentation if patients can no longer be ‘sectioned’, as currently.
- This risk of criminalisation is fairly obvious.
Detention in or by Emergency Departments –
- The original review of the MHA by Sir Simon did not mention the question of legal powers for NHS staff to detain patients in ED where there are concerns about mental health.
- Despite that being the case, the government response to Sir Simon’s review did raise for discussion the potential of extending powers of detention to NHS staff.
- The Committee touches upon this, supporting the notion of reducing reliance upon the police (who can use s136 MHA powers in ED, if justified) whilst supporting the idea the Bill does not just extend s5 MHA to EDs, which was one of the ideas. It also points towards impending review of the Mental Capacity Act 2005.
- The Mental Capacity (Amendment) Act 2019 will bring this to bear and that legislation has received Royal Assent, but introduction of it has been delayed for reasons unrelated to this point about EDs – it will extend the wording of s4B MCA which may give options to healthcare professionals in some situations, without extending MHA powers.
You can find more material on the Bill on Parliament’s website, including detail on the progress of the Bill.
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 