Right, let’s imagine someone detained by the police, either under a section 135(1) Mental Health Act (MHA) warrant or under section 136 MHA, and removed to a mental health unit Place of Safety for assessment. Upon arrival at the location, the PoS is still available and discussion occurs about whether the police must remain there beyond the handover of circumstances and background to the detention.
Is there any obligation to remain / can the police determine unilaterally when they leave / what obligation is there on the NHS? / Does this change for s135 versus 136?
I’ve known a few police forces ask for legal advice on this question – and helpfully, I’ve known both of the possible answers be given by lawyers to those police forces. Two forces I’m aware of have been told by lawyers that there is no obligation on the police whatsoever to remain, beyond handing over the patient to staff for assessment and the patient is then an “NHS responsibility”. I’ve also known a force who asked a more senior lawyer – Queen’s Counsel at the time of the advice, King’s Counsel now – and they said the exact opposite. Not only is there a responsibility, it is an obligation to do so, in their view.
So what the hell do we do now, if even the lawyers can’t agree?! … well firstly, lawyers often disagree. This is nothing new and if you’ve ever had to seek or receive legal advice what you learn is the very specific question you ask the lawyer is key. They have this incredible propensity in the legal profession to answer the question you actually asked them, rather than answer another similar, but subtly distinct question you should have asked them instead.
So let’s look at the provisions themselves and think more widely than only examining what they say – and remember your ABCDE? – always go back to the source, especially if your experts (the ‘E’ is the lawyers, in this example) are in open disagreement. This post is relevant to some of the situations which might come up during phase 4 of Right Care, Right Person where it has been agreed in principle the NHS will take over patients within an hour. That may be landing in a police force / NHS trust near you towards the end of 2024 / start of 2025, if it hasn’t already.
STATUTES
135 Warrant to search for and remove patients —
(1) If it appears to a justice of the peace, on information on oath laid by an approved mental health professional, that there is reasonable cause to suspect that a person believed to be suffering from mental disorder—
(a)has been, or is being, ill-treated, neglected or kept otherwise than under proper control, in any place within the jurisdiction of the justice, or
(b)being unable to care for himself, is living alone in any such place, the justice may issue a warrant authorising any constable to enter, if need be by force, any premises specified in the warrant in which that person is believed to be, and, if thought fit, to remove him to a place of safety with a view to the making of an application in respect of him under Part II of this Act, or of other arrangements for his treatment or care.
(3) A patient who is removed to a place of safety in the execution of a warrant issued under subsection (1) or kept at the premises specified in the warrant under subsection (1A), may be detained there for a period not exceeding the permitted period of detention.
136 Removal of mentally disordered persons without a warrant
(1) If a person appears to a constable to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons —
(a) remove the person to a place of safety within the meaning of section 135, or
(b) if the person is already at a place of safety within the meaning of that section, keep the person at that place or remove the person to another place of safety.
(2) 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] for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an approved mental health professional] and of making any necessary arrangements for his treatment or care.
A note on the explanation which now follows: each of these provisions – s135 and s136 – contains two distinct powers. Sections 135(1) and 136(1) are the initial powers to detain someone in respective locations; sections 135(3) and s136(2) are then separate, subsequent powers which are used to detain someone at the Place of Safety, usually for up to 24hrs but it can be extended to 36hrs in some circumstances. I’ve had this point queries more than once after stating it, so let me ram it home: if you don’t believe that 136(1) and s136(2) are distinct powers but are all part of the operation of one power, you’ll need to explain section 136C MHA, which relates to searching people who are detained. It contains powers of search for s136(2) but not for s136(1). Why not? – because powers to search people detained under s136(1) are already contained by existing police powers under s32 of the Police and Criminal Evidence Act 1984. That power can’t apply to s136(2) so parliament legislated in section 136C to remedy this. Section 136C makes it clear those searches can be done at any point of detention under either kind of s135 warrant.
SO IT’S TWO POWERS
Only a constable can remove someone to a Place of Safety under the initial power – whether s135(1) or s136(1). However, the identification of a constable is entirely absent from s135(3) and s136(2). It’s been argued for years: anyone who is a party to the operation of the Place of Safety location can become involved in ensuring someone is safely detained once we are in to the territory of s135(3) or s136(2) and it’s not just my reading of the law which thinks this.
Whilst I’ve frequently heard operational mental health professionals saying they have “no power to detain or restrain” someone at the Place of Safety, that view doesn’t seem supported anywhere else in things like multi-agency guidance issued by the Royal College of Psychiatrists and signed up to by every agency relevant to the operation of s136.
For example, in those RCPsych standards just linked from 2011, it states on page 8 the police should be able to handover patients and leave, obviously countenancing ongoing detention by others, probably NHS staff. This should be possible within an hour, they state – subsequently, guidance to NHS Commissioners issued in 2013 went further and stated this should happen within half an hour. We have to assume the signatory agencies are all satisfied there is a power to keep people safe, pending conclusion of their assessment, for example by stopping them from leaving.
But what happens if the PoS staff do not agree to take over that responsibility – can they, in fact, refuse to do so? This is where we need to think more broadly because in fact, if we talking pure legalities, the High Court’s pointed out in 2016 there is no obligation whatsoever on the NHS to provide health-based Places of Safety at all – this was tested in an application for judicial review after an inquest in York following the death of Toni Speck in 2011.
WEBLEY HANDOVERS
Without anticipating I’d write this particular post, I wrote recently about so-called “Webley handovers”. I’ll let you read the detail of what that means in the previous post if you need it, but for our purposes here, it shows a police force could be considered liable in negligence if they hand over someone to another agency like the NHS without ensuring agreement to take over was in place and the officers had shared background and relevant risk information to enable them to do it safely and appropriately. In other words, the police can’t just dump and run without consent of the NHS staff left “responsible” for something they’re not actually responsible for until they agree to be.
In the particular case of Webley (2014), the High Court found officers had done these things, hence a legal challenge against the Metropolitan Police Commissioner and St George’s Hospital in Tooting was only successful against the NHS. But this point shows, a chief officer of police could be vicariously liable if their officers “dump and run” without NHS consent and there have been so-called Article 2 inquests where officer shave done this, most notably in recent times at the end of last year where PSNI officers in Northern Ireland had repeatedly delivered a man to Emergency Departments and left him there (in fact, without invoking the equivalent power to s136 MHA).
So human rights obligations could be engaged as well …
BACK TO BASICS
We need to go back to the text of the statute, above. You could choose to look at it like this —
- s135(1) and s136(1) both state “constable” so only they can remove someone under a warrant or detain in an emergency outside a dwelling.
- Nothing in the statute for 135(3) or s136(2) says it is the police who must remain responsible after arrival so surely that means they aren’t?
- Two lawyers advising police forces have stated there is no obligation on the police to remain beyond the handover so they obviously are interpreting it in this way.
To such an analysis (obviously expressed at length, using larger words but this is the working summary), I would ask this —
- If the police are not responsible beyond arrival at the PoS, then who is? –
- The statute equally doesn’t say the NHS are responsible either and we know managers of such locations are at liberty to decline to receive someone. It did earlier this week, for example, because an officer was telling me about it.
- If the police just refuse to stay amidst an NHS refusal to accept legally responsibility for the detention, what happens then?
- We know from Webley that if an adverse incident took place, the chief officer could be held liable, we know Coroners would be critical of the police doing that.
- In that sense, whatever “no obligation to remain” might mean, it doesn’t also mean that leaving would be consequence free, in legal terms.
My best guess here: it strikes me a good quality, agreed local protocol should set out what is expected to happen in all of these circumstances not least because, whatever the specifics of the law, there is still a need for agencies to agree the principles of how these decisions are reached in practice. The legalities of this should be factors in structuring those principles and agreements but agencies are always going to find circumstances where partnership working needs to mean flexibility and cooperation involving give and take. Not everything is about the law, it’s also about making local partnership work in practice and that may need to look different in Camden compared to Cornwall.
FORM YOUR OWN VIEW
I know with s135(1) it will be argued that an Approved Mental Health Professional swore out the warrant and asked the police to execute it, but ultimately, the decision to detain the person and remove them is the officers’ decision, not the AMHPs. Of course, the Code of Practice rightly encourages discussion, partnerships and shared decision-making, but it does remain a police power to use – obviously that’s even more obviously true about s136(1). To fully discharge a duty of care owed by the state to those who have been taken in to its custody, you can’t just drop someone somewhere and leave, without regard to the context in which you’re doing that.
But ultimately in these circumstances, the police have decided to detain the person so the duty of care owed to the person is surely owed by them until it’s fully discharged, unless or until someone else agrees to take it over or is obliged by law to do so. This post will become more relevant later in the year when phase 4 of Right Care, Right Person is started with suggestion the NHS should have staff in place to take over patients within an hour. I’m hearing some things I will merely describe as “courageous” about how this is working in practice in some areas already trying it.
And did I mention “Yes, Minister” was one of my favourite TV programmes?
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 