Yesterday, the Health Affairs Committee took evidence about the Right Care, Right Person initiative and one Chief Constable claimed there were “frustrations” for the police caused by the fact that “A&E is not a designated Place of Safety” (ie, for the purposes of s135/136 MHA). This is an interesting claim, because in 2017, the Royal College of Nursing had a huge debate at their annual conference which voted on whether “to lobby to ensure that Emergency Departments are no longer designated places of safety for the purposes of mental health legislation.” You can still see debates about that point on Twitter, if you use the hashtag #RCN17.
So which is it? – is A&E ‘designated’ as a Place of Safety under the MHA or not? Police frustration in 2023 that it’s not and RCN frustration in 2017 that it is.
The problem here is that it’s the wrong question – it’s not really a “thing”.
The word ‘designated’ does not appear in s135 or s136 MHA at all and the law itself simply does not require any designation or local agreement. You can read my response to #RCN17 which covers this in detail. The law simply lists those locations which can act as a Place of Safety, inc 135(6). They are –
- Residential accommodation provided by the local social services authority
- A hospital
- A police station
- An independent care home for mentally disordered persons.
- Any other suitable place.
(Please don’t write in about sub-section (7)(b) relating to hospitals: that relates to the “any other suitable place” provision.)
In term of statutory guidance on how to implement the Act: the word ‘designated’ only appears four times in the entirety of the Mental Health Act Code of Practice (England, 2015) and never in connection with s135 or s136 MHA – I’ve written about this before. However, the phrase does appear in the Code of Practice (Wales, 2016, p101) to confirm that “An emergency department can however be a designated place of safety for the purposes of a mental health assessment under section 136.” So it is not really a “thing” because even use of the word in the Welsh code is not creating a process of legal ‘designation’: it’s just using word as synonym for ‘identified’, ‘agreed’ or ‘specified’.
Ultimately, the MHA allows for anywhere to be a Place of Safety and this includes all hospitals.
HOSPITALS
Of course, it should be obvious the police can’t (or shouldn’t) just rock up at any old hospital and say “You’re a Place of Safety in law so we’ve come here, let us in”. There needs to be a local understanding in a joint protocol about which hospitals would be used in which circumstances. In that sense, there is a need to ‘designate’ certain buildings for use and many hospital will remain unconsidered. For example, in Birmingham there is a specific Women’s hospital, which deals with specialist care for women’s health issues, including the provision of specialist maternity services. So it’s highly unlikely that any local protocol about the operation of s135/136 MHA would see the Women’s Hospital ‘designated’. But guess what: the Women’s hospital was used as a Place of Safety under the MHA around fifteen years ago, by officers from my response team. It was a specific set of circumstances which gave rise to it being appropriate, but it shows that ‘designation’ is neither a thing, nor is it any kind of bind on officers thinking about how best to respond to someone.
In short, an existing patient of that hospital who was very vulnerable, had just given birth and was awaiting MHA assessment by an Approved Mental Health Professional (AHMP) and two doctors, left the hospital in very concerning circumstances and the police were called to find her. Officers managed to do this within half an hour or so, but she declined to return to the hospital voluntarily and it was obvious she was very poorly, they were very concerned for her. In the absence of other options, they used s136 MHA to safeguard the lady and because they knew where she’d come from they took her there to say “We’ve found your patient, but had to use s136: what do you want us to do now?” Might be worth mentioning: at that time in Birmingham, almost 100% of those patients detained under s136 went to police custody for assessment, unless they were physically injured and required an Emergency Department first. So unless the Women’s hospital staff had any other bright ideas about how best to help their patient, after the 136, she’d go to jail, which wouldn’t happen now and would have seemed outrageous even at the time, of course.
Thankfully, staff were only too keen to have her back on the ward where there was a private room, they asked officers to help keep her there until things had calmed down, which they did and when she was somewhat settled and the AMHP and doctors turned up for her MHA assessment, the police left with the s136 still running. This means, the Birmingham Women’s Hospital acted as a Place of Safety under the MHA for that lady, in those specific circumstances, regardless of questions of local protocol or ‘designation’, because the law allowed for it anyway.
EMERGENCY DEPARTMENTS
It is in this sense that I was confused about the claim that “A&E is not designated as a Place of Safety” because I admit I don’t know what that means, in the end. There is certainly no prohibition on using A&E as a Place of Safety if that’s relevant in a particular circumstance. For example, the Chief Constable mentioned people being taken there if they were physically injured and obviously, if s136 is used and someone has self-injured or ingested a toxic substance, then A&E is the place to go. But he went on to state that officers had to then transfer the person to another location (ie, a health-based Place of Safety in a mental health unit) for the mental health assessment which results from the use of s136.
This is not my experience: of course, sometimes that is what happens – someone is examined at A&E and it’s determined they don’t require A&E treatment or that treatment is completed and the person moved to a health-based Place of Safety. But it’s as often the case the person remains in A&E for the assessment to take place there and there is no barrier in law to this, despite what was claimed about it being impossible because of designation. It happens regularly because there is no mental health PoS available and because there simply isn’t anywhere else to go. Many areas have far more s136 demand than their mental health unit Places of Safety can handle, not least because use of s136 MHA by the police has risen consistently for the last thirty years and facilities which opened fifteen years ago are now having to cope with double the demand they were planned to manage. As such, officers remove people to A&Es because despite other claims made in the evidence session, the police cannot use police custody “as a last resort”. The law on use of police stations changed in 2017 and police stations can now only be used in very specific circumstances, which are most usually not met. (I’d argue they’re never met, and I’d never give such an authorisation to use them, if asked to do so.)
So the last resort is Emergency Departments, whether rightly or wrongly (and I do suspect it’s wrongly): this is the practical implications of the law because ED has become the only building, open 24/7 which is a potential location for anyone who can’t go anywhere else. Hence officers end up with vulnerable people in ED which is very far from ideal because they are busy, loud and often chaotic places to be and if someone does not require the unique services they offer, it would be far better if they were in a mental health PoS.
Nothing I’m pointing out above, is suggesting the police should be trying to remain in ED or use it more, it’s just an observation about the legal question of designation: – or rather than non-legal question. It’s not a thing and the law is silent on the question of designation of all hospitals.
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 