I’ve had this question before and I thought I’d written a post on it, but I can’t find it for love or money so I’ll assume I dreamt that and haven’t covered it! … oh, I hope you had a lovely Christmas, by the way. I got a new cycling computer that does fancy things my old one didn’t and I’ve donated my old one to a new cyclist just getting in to it so that made me feel nice as well. I hope to do many miles in 2024 with a few memorable adventures thrown in.
Today’s exam question – when does the 24hr ‘clock’ begin for s136 MHA and how does it work specifically, where there is an ambulance queue outside an Emergency Department (ED)?
Imagine for example, someone detained under s136 MHA at 2000hrs and a decision is taken, for whatever reason, to remove them to the local ED where the ambulance pulls up at 2030hrs but the paramedics then learn a queue lies ahead with other paramedics still looking to offload patients ahead of them. The s136 patient eventually enters the ED at 0130hrs, five hours after arriving in the ambulance holding bay: does the 136 24hrs being at 2030hrs or at 0130hrs? … and why does this matter?!
DIVERGENCE
Well, the plain answer for when it starts is “upon arrival at a Place of Safety”. As there normally isn’t a five hour delay for entry, it’s rarely important to think about arrival in the car park versus entry to the building because it normally amounts to minutes, at most.
There are different views expressed on this.
Some argue the person has “arrived” at 2030hrs and if you don’t count the five hours in your calculation, you end up with an “unfair” situation the person could be detained for up to 29hrs overall. Comparison is sometimes made with the situation of an arrest for a criminal offence. If you repeat the scenario with a burglary suspect taken to police custody where, from time to time we also seen queues to get before a custody officer, the Police and Criminal Evidence Act 1984 makes it expressly clear, your arrival at a police station is calculated from the point you arrive at the station itself, not from the point where the custody officer authorises your detention there – the Mental Health Act 1983 is nothing like as precise.
The relevant section to consider is s136(2) MHA, which states –
“A person removed to, or kept at a place of safety under this section may be detained there for a period not exceeding the permitted period of detention [ie, 24hrs] for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an approved mental health professional …” etc..
[My bold emphasis.]
There are a few things to think about here in addition to the obvious point we shouldn’t be waiting five hours to get in to the building at an Emergency Department.
- When someone is in the back of an ambulance on a car park or holding bay, have they been “removed to” a Place of Safety? – bearing in mind the ED may not yet know there is a s136 MHA patient en route and actually still has the right to decline to receive them.
- In the custody analogy, above, the custody sergeant will have agreed in advance to receive the person and they’ll be working their way through a queue of prisoners for other arrests – there is no agreement in place when some is removed under s136 MHA, until they are seen by the first clinician to meet them on arrival.
- An ambulance parked or waiting in any location is not defined in s135(6) MHA as a Place of Safety and I doubt any Approved Mental Health Professional or Doctor would agree it is – it’s simply not a suitable place to conduct an assessment.
- If, upon entry, the ED did decline to receive the person and they were then removed to another location, are we saying that period of time spent trying to access ED constitutes them being removed to an ED bearing in mind they were not “detained there” for the 136 assessment?
- If you ring an AMHP at 2045hrs and say, “We’re in the holding bay for ED now, can you get a doctor and come to assess the patient” are they going to agree to that, bearing in mind the assessment should occur in a suitable environment – will the AMHP agree at that point you have “arrived” at a Place of Safety under the Act?
- It’s obviously unlikely they will … by which I mean no AMHP I’ve asked in preparation of this post would say so!
- We also have problems at the other end –
- What happens in our situation at 2030hrs the next day? – if we take the view the 24hrs is up and the detention ends and the person free to leave, there is no longer a justification or purpose in the police remaining in that situation, so presumably those who argue for 2030hrs are content to direct officers to walk away and to be responsible for the consequences of that decision in a Coroner’s or civil court.
- I wonder how that sits with a situation where by 2030hrs, an MHA assessment has occurred and the patient needs admission but there is no psychiatric inpatient bed available? – we know someone is suicidal, for example, but the 136 has supposedly expired without an MHA application being made.
- Imagine a situation where there is a risk to the patient or others and the officers are directed to walk away because of the 24hrs being up?
- What if the patient leaves the ED at 2200hrs and then seriously harms themselves or others? – what view will a Coroner talk of that decision?
Finally there is also the question of guidance on this topic. In 2017, when the law on section 136 MHA was changed, the Home Office and Department of Health issued non-statutory guidance about the implications of the various changes and I’m grateful to Sgt Mike Hughes from Wiltshire Police for reminding me of this after the publication of the post. He rightly reminds us all of section 4.2 of this guidance, which states –
“Time spent travelling to a place of safety or spent outside awaiting opening of the facility does not count.”
SO WHAT DO WE THINK?
You might summarise this – if we regard the clock as starting at 2030hrs even though the AMHP won’t assess in an ambulance and the person has not been received and accepted anywhere, we’re severely reducing the time left available for the AMHP and DR to do their jobs once we get in to the hospital, especially if the situation ends up requiring an inpatient bed. If we regard the clock as starting at 0130hrs, we’re potentially extending the period of time the person is detained, which impinges upon their civil liberties and might seem unfair to some. Isn’t also unfair on the other patients ahead of them in the queue, thought; that they can’t access the hospital as quickly as would be ideal? We have heard a lot over the years about “parity of esteem” for mental health and physical health and well, it is a reality of our NHS at the moment that patients with infections, broken bones and even heart attacks are delayed in receiving ambulance responses or ED admission. We shouldn’t be surprised it happens from time to time with mental health, either.
Here’s another reality check, though: sometimes, it just takes ages to get stuff done, including reaching a Place of Safety. In some rural areas, you’d be extremely fortunate to be outside a Place of Safety within 30-mins, because it can take journeys of fifty miles sometimes to get anywhere near the place. In some urban areas where Places of Safety are more readily available but where they can be quite busy, I’ve known officers holding people at the place where they were first detained for over an hour until they can work out which location might be available to them. If you were held outside a MH unit Place of Safety for example, you’d also face the same dilemma about arrival versus entry but in my experience, it seems uncontroversial the clock would be considered to start when you enter the building, not whilst sitting in the car park. I’ve known situations where a 136 suite is being used for a patient who is about to be moved out of it, and officers have to wait over an hour to get in – and I’ve never known the question about the clock arise but the query I received to prompt this post is not the first I’ve had about delays entering ED.
Would it matter in our hypothetical situation if the delay was not 5hrs but 8hrs? … or just 3hrs?! I don’t think the timescale particularly changes anything – the legal question comes back to the issue of whether the person has been removed to a Place of Safety and the wording of s136(2) MHA itself.
And remember this: if you opt to go for the earlier time-point of 2030hrs and have an untoward incident 25hrs later, you may find difficult questions in a Coroner’s Court about why detention was ended prematurely leading to someone’s death; if you opt for the later time point of 0130hrs because you hadn’t fully arrived somewhere, you will have kept the person detained and prevented any untoward incident during that 5-hr window, with extremely limited potential there could be a civil claim for 5hrs of false imprisonment which would require the person to obtain High Court permission under s139 MHA just to secure authority to bring an action in the first place.
What would you rather defend, given that neither argument is without problem or merit?
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 