A recent query from an officer and it made me think if someone is asking this, perhaps others are wondering or seeing the same thing?
“We are experiencing a relatively recent trend of our local hospital applying a level of pressure to s136 individuals when we are in attendance there with them (we will have attended a concern for safety in a public place, not deemed it necessary to 136 and then accompanied them to hospital to await assessment). I’ve had discussions recently whereby AMHPs have stated that a hospital is not a place of safety (PoS).”
The example was given of someone on bridge who was then accompanied to hospital without use of s136 of the Mental Health Act 1983. 24-hrs later (during which time, I have to assume the police did not remain in the Emergency Department), a call is received from the hospital stating the patient had absconded, believed to be heading back to a bridge. It was established they had been assessed by the Approved Mental Health Professional who had decided for ‘section’ them, but they were “unable” to do so because there was no available bed. After the police locate the person, they return them to ED only to be told to 136 them as “ED is not a place of safety”.
The specific questions were —
- Is ED / a hospital a “place of safety” in the context of sectioning?
- Should we be considering 136’ing more within the hospital setting or should that sit with the hospital (via a doctor/different section) when that need has been identified by the AMHP or equivalent?
“SECTIONING”
So firstly, ED / a hospital is considered a Place of Safety, for the purposes of s136 or s135 MHA but this is subject to a few caveats.
Is ED the correct Place of Safety for that person in that context? – it would be if the person required treatment for illness or injury that only ED can provide, for example. So things like self-harm injuries, overdose or more general medical worries like chest pains, breathing problems, etc.. Additionally, nothing obliges ED to act as a Place of Safety for someone detained under s135/136 so if the police removed someone there and they did not require ED-specific treatment / care, the hospital could in theory decline to receive the person. Of course, communication and discussion is key, because officers sometimes ask ED to act where they have (literally) no other option available and nothing prevents ED agreeing to this.
Ideally, someone who does not require ED care would be removed to a health-based Place of Safety in a mental health unit, but whether that is an option would have to be judged in that time and place. What is clear, despite a recent claim to the contrary, is that police stations can’t just be used as a PoS as a ‘last resort’, because the law doesn’t allow for that. If there is no mental health unit available, and the very specific criteria for using a police station are not satisfied, then ED may be the only open location where officers could ask to assist until an AMHP can be come involved to coordinate the assessment.
But in principle, yes: ED / hospital is a Place of Safety under the MHA, this is clear in s135(6) MHA and only final point to make is this explanation is contested by some and not understood by many more! But the question was put to the government in England and Wales whilst legal changes were being brought in and it was made clear in a guidance document published at the time (see para 4.4, p21).
HOSPITAL SETTINGS
Secondly: should officers be considering 136-ing more in the hospital setting? Hard to understand precisely what this means, but I think the question might be better considered during the original encounter on the bridge. Someone has just been found in a location where they have immediate access to a lethal mechanism to end their life – it may be the case they’ve ‘voluntarily’ attended ED with the police, but it’s worth asking how ‘voluntary’ that really was. Police officers in uniform, who are suggesting someone needs to go to ED or get on an ambulance have powers of arrest and detention over the rest of us. For some, it may be unclear how much of a choice they have. Even if officers are explaining things very carefully, the distress someone is in could mean they may feel they have no option but to comply with the suggestion. Should this be the scenario and officers then leave ED, the person may then rethink whether they want to be there. Some will stay, some may not.
One question to guide decision-making: if you knew near the bridge the person would walk out before completion of assessment or arrangements, would you worry about the consequences of your decision not to use s136 MHA? — if so, it may be worth considering the power because s136 is not just about an ‘immediate need of control’ for the protection of others — it’s also about ‘immediate need of care’ in someone’s interests’. The wording of s136 includes ‘necessary’, ie, use of the power must be considered necessary, but that necessity needs to be judged in the context of keeping someone safe, not just at initial contact, but throughout whatever needs to follow.
SOME OTHER ISSUES
To address the final part of the question: there is no other legal mechanism available to the doctor or AMHP in ED to keep the person safely detained, except to fully ‘section’ the person (which they stated they couldn’t do in this example, because there was no available bed). So the only method by which to keep the person detained, is police use of s136 MHA – this remains true whether the section 136 is applied near the bridge on first contact or during the person’s stay in ED if the grounds become met whilst waiting there.
We often hear of situations where someone has been voluntarily assisted to ED, either by the police or the ambulance service, and they then leave before completion of a Mental Health Act assessment or the identification of a bed for admission. Indeed, Coroners have had to look at people leaving ED when they’ve been assisted on a voluntary basis, and to examine police contact prior to suicide, where s136 may have been an option. For me, consideration of s136 is not only about whether the power is necessary to compel someone to a location where they can be assessed, but also about whether the power is necessary to ensure they remain safe in that location until assessment or arrangements for their care are complete — and all situations have to turn on their merits.
Finally and incidentally, I’ve been told on occasion it is not lawful for police officers to use section 136 MHA on someone where there has already been a Mental Health Act assessment and we’re now only waiting for a bed to become available. This situation helps us understand why that can’t be correct (and I’ve never agreed that it is). My view has always been (and still remains): where someone fits the criteria in s136(1) MHA – the ‘mental disorder / immediate need or care or control / necessary’ stuff – then the power can be used to keep people safe now who would otherwise be far from safe.
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 