Happy 2024 to you all!
It’s now nine years since the Code of Practice to the Mental Health Act 1983 was published in England (2015) and eight years for the Code in Wales (2016). Given the laws for policing / mental health were changed in 2017, that means we’ve had Codes of Practice MHA for 6-7yrs which no longer reflect the police aspects that we see in Chapter Sixteen CoP MHA.
You might wonder why this matters, given the Code is just guidance about how to implement the Act?
Well, plenty of things in the Code are referenced in local protocols about how things should be done, asked about in Coroners’ courts where things have gone awry but perhaps most importantly, the new aspects to the law which were introduced in 2017 are not subject to any guidance at all. For example, since the amendments, I’ve heard it endlessly argued over about the requirement for police to consult healthcare professionals (where practicable) before use of s136 MHA. But what does this mean, in practice?
THE CONSULTATION REQUIREMENT
First of all, what does “where practicable” mean when it comes to the consultation requirement? One thought I had about this requirement was something like “if the use of s136 MHA means someone must be in immediate need for care or control, how immediate can that need really be if you feel you have ten minutes, maybe more, to ring someone and consult?” I wondered if I’d ever think it was practicable – perhaps a Code of Practice could help with this?
And if a police officer does decide to consult, what are they asking or seeking, what is the nurse disclosing or deciding? … and who’s decision is it about whether s136 is finally invoked? I think it’s somewhat obvious the decision about instigating use of s136 MHA rests with the police officer only: they are present at the scene, they have to justify the intervention and / or back it up with a use of force, so it must be their decision.
But I mention all of this because that’s not a position shared by everyone and I’ve seen material in joint policies on this topic which hints at the police officer consulting in order for a nurse to confirm whether s136 is required. Obviously, it’s never phrased in that way, but perhaps a Code could clarify this for us in a new section about the consultation requirement?
SEARCHING PROTOCOLS
Prior to 2017, the business of searching people detained under s135 and s136 was chaotic – it ended up with people getting in to the arguments about whether s136 was an “arrest” or not because, there is no express power in the MHA to search anyone detained by the police under that Act, BUT! – s136 MHA is a ‘preserved power of arrest’ (see s26 and Schedule 2 of the Police and Criminal Evidence Act 1984) and therefore, anyone detained s136 can be searched immediately after arrest under s32 PACE. But if you want to deny the legal reality that s136 is an ‘arrest’, then it won’t be obvious that ‘search after arrest’ powers apply to it. And just to complicate things, s135 MHA is not an arrest – so s32 cannot and never did apply to detention under either of the warrants issued under that section.
But all this was clarified in 2017, albeit in a way that was slightly more complicated than it needed to be but there are nevertheless powers of search for all s135/136 situations –
- Nothing changed the opportunity to use s32 PACE for those detained under s136 MHA after initial detention.
- But section 136C(3) allows for search after arrival at a Place of Safety or after transfer to a second or subsequent Place of Safety
- And section 136C(1) allows for search of someone after detention under a warrant or whilst being removed from a premises under a s135 MHA warrant.
This can end up sounding a little complicated – you might imagine a clear section in a new chapter 16 MHA Code of Practice would help clarify all of this for those involved … because I still hear arguments about searching and you can search at any point under either provision as long as you have “reasonable grounds to suspect” the person is in possession of an item which could be used to escape or cause harm.
A NEW CODE
There we go: I would like to see a new Code of Practice in each country, not just covering those two example areas. I assumed there may be little appetite to write and issue a new code because of the potential there would be a new Mental Health Act within a few years. We now know that any new Bill introduced to Parliament will be after the next General Election, so potentially in 2025. By the time of Parliamentary process and implementation, it will be 2026/27 at least meaning the old Codes of Practice will have been out of date for more than five times as long as they were ever current.
Since I’ve spent a little time here reflecting on the passing of years amidst slow progress and I couldn’t help but notice as 2024 kicked in, that it’s sixty-five years this year since the Mental Health Act 1959 received Royal Assent. That means s140 MHA ‘83 (formerly s132 MHA ’59) has been law for sixty-five years. So I’m speculating its trial period may be over and areas should start complying with it, and the requirement of the MHA Codes of Practice to have a jointly agreed policy about its operation in their area, to include the police and that reminds us that laws and Codes of Practice are often systemically ignored, as s140 MHA itself shows.
I wrote this post yesterday for publication today. First thing this morning, I received an email asking about exactly the kind of situation s140 MHA is intended to prevent – someone in need of admission amidst protracted pre-admission detention, all of it a legal mess with risks associated and yet the legal mess and risk prevails because there are no meaningful s140 arrangements or any jointly agreed local policy about how urgent admissions should work where the situation requires it – and all sixty-five years on from a requirement to ensure this and despite a Code of Practice which the highest court in the land says is important guidance with which you should comply unless you have ‘cogent reasons for departure’.
Sixty-five years!
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, 2024
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 