“Consideration should be given to authorising a section 140 bed as the 136 clock will expire in 2hrs’ time.”
If you read section 140 of the Mental Health Act 1983, you will not see the word ‘bed’ within it. Indeed, you will not find that word in the entirety of the Mental Health Act. People are not admitted to ‘beds’, legally speaking, they are admitted to hospitals. The Approved Mental Health Professional or relative who makes a written application for someone’s admission is applying to the relevant hospital, not to a specific bed. Of course, for obvious practical reasons, the hospital will keep a close eye on the number of beds it has available so its patients may sleep and if they are currently at 100% occupancy – or above, which is a thing! – they will be naturally reluctant to agree to receive any other patients no matter how loudly the AMHP may be shouting about a difficult legal situation unfolding outside the hospital. In the particular case motivating this post, it was the fact someone had been in a Place of Safety detained under s136 MHA for 22hrs and there was only two hours remaining before someone would need to take a horrible decision about whether to unlawfully detain someone to keep them safe from obvious risk, or release them in full awareness of the potential, terrible consequences.
But either way, no – a “section 140 bed” is not a thing in any meaningful, legal sense. So “authorising a section 140 bed” doesn’t follow, either – it’s not a thing.
Think of a police example by way of comparison: arrested people are not taken to cells or even to custody, legally speaking, but to police stations. Even more precisely, most police stations to which arrested people are taken have to be specified or ‘designated’ for that purpose by the Chief Constable as suitable for the reception of people under arrest. Just like you could take a prisoner to a police custody block who is under arrest when that cell block is full, there is a practical implication on which the custody sergeant would no doubt have a view. You might find you just don’t get accepted in, because of the overall implications of that on things like safety and supervision. Well, it’s no different in that respect in hospitals – when they’re full, they’re full.
The interesting and most important question is “why are they full”? Cell blocks are not usually full and you only rarely have this problem. If the nearest cell block is full, the likelihood is the next-nearest isn’t – it’s rare you would find a critical capacity problem right across the system.
WHAT DOES IT SAY?
Section 140 of the Mental Health Act is widely ignored, misunderstood and neglected as a piece of legislation. I’ve written about it before and told the story about various Freedom of Information (FoI) requests I’ve made to healthcare organisations in the past.
If you read the section, it now says —
140 – “It shall be the duty of every Integrated Care Board [England] and of every Local Health Board [Wales] to give notice to every local social services authority for an area wholly or partly comprised within the area of the ICB or LHB specifying the hospital or hospitals administered by or otherwise available to the ICB or LBH in which arrangements are from time to time in force —
(a) for the reception of patients in cases of special urgency;
(b) for the provision of accommodation or facilities designed so as to be specially suitable for patients who have not attained the age of 18 years.”
So if you FoI this, you might ask them to list the hospitals they’ve specified for the purpose in s140(a) and those specified for s140(b). In fact, some of them write back and say “We’ve never heard of this – can you explain what you mean?” Others give you a big list of, I assume, every building in their NHS trust area to suggest they are all specified for the purpose. Either way, a correct answer to the question would be to name some hospitals, whether some of them or all of them, as you prefer.
But we then need to wonder, or ask, how does the specification of those hospitals have bearing on the patient group for which the specification is required? – in other words, if someone is in urgent need of admission, is there an actual place in the real world which is poised and ready to receive them or can activate some kind of contingency plan to make it happen? Do those in need of urgent admission actually find themselves admitted urgently, to mitigate whatever situation is giving rise to risk? In addition to the requirement on the ICB (or LHB) to legally specify the hospitals which should be able to to do this, there is a requirement in the Mental Health Act Code of Practice to have a joint protocol between the relevant agencies as to how all of this will work. Paragraph 14.80 of the English CoP (2015) covers this, and its paragraph 14.72 in the Welsh CoP (2016).
So, the ICB / LHB must specify hospitals and should agree a joint protocol with provider trusts, local authorities, police and others affected by admissions to explain how s140 is going to work in practice. I wonder how many areas have such a joint protocol? – I’ve only ever known of one and the protocol was highly questionable. Incidentally, such a protocol would be only one of five which are required – if you work in these organisations, might be worth making sure you have them or informing your boss that you don’t, because they become very relevant in inquests after things have gone badly awry.
Why not FoI your police, local authority or NHS mental health trust about their s140 protocol and see how you get on? – you might even be able to guess what will happen?
WORK IN PRACTICE
The test of course, is whether urgent admissions can happen urgently where they are extremely necessary and entirely unavoidable – how else would you measure it? If not, despite the lack of obligation created by s140 for trusts to ensure someone is admitted, it then risks trampling on other rights – like human rights.
- Article 2 – if someone is suicidal, failing to admit them to hospital when it’s known to be necessary can be an obvious violation of their right to life.
- Article 3 – if someone requires urgent admission becasue they are in ‘dire need’ of psychiatric
- Article 5 – if someone detained under s136 MHA is held beyond 24hrs detention because of bed shortages and the inability of those s140 arrangements to make available a bed, then there’s a risk to liberty (because it’s unlawful to hold someone other than in accordance with that country’s domestic law).
- Section 6 of the Human Rights Act 1998 – “it is unlawful for a public authority to act in a way which is incompatible with a Convention right.”
- There are other articles I could have listed, but these three make the main point.
So it’s all very well the NHS saying “we haven’t got a bed” and if they haven’t got one, they haven’t got one! The question is “why haven’t they got one?” and that then comes back to commissioning and contingency planning. If a Chief Constable can plan and prepare for the reality of fluctuating needs for arrest, peaks and troughs of demand, seasonality, etc., why doesn’t the NHS when it comes to inpatient beds? One reason might just be the lack of consequences for doing so – I rarely see the CQC sanctioning, reviewing this issue and I’ve known few consequences, even if Coroner’s have issued Preventing Future Death notices after inquests where the lack of a bed was a problem. You might wish to note the PFD after the death of Mr Nigel Abbott in Birmingham in 2018, issued in 2019 – the Coroner there listed many other deaths prior to Mr Abbott’s which all had a contributory factor of no available mental health bed, calling for Government oversight of remedial action to correct what one of the trusts own psychiatrists had described as a service “in crisis” … and that was 2019.
Let me return to the policing example, and whilst acknowledging it’s not an exact comparison I do think it’s a valid one to make —
The Chief Constable of most police forces has more cells than they use on a regular, day-to-day business. In a large force near to me, they have two large scale custody offices with as many as 60 cells each, but only half of those are in use, day-to-day. In addition, they have four other custody areas with cells which are open. If, for example, there was a special reason to think more cells space may be required (for example, a large demonstration or sporting event) they could get in extra custody staff to the big custody blocks and start using some of the cell space which is not used day-to-day. Once the operation is over and prisoner numbers drop back to normal levels, that contingency is closed down again. There are other ways of ensuring contingency, because ultimately, if the police refused to arrest your burglar or the person who robbed your daughter because “we don’t have any cells”, that wouldn’t last very long before Chief Constables were being subject to intrusive interventions from their Police and Crime Commissioner or from outside their force by inspectorates.
BLUE SAPPHIRE
I still do not understand this business about s140 MHA.
It was previously known as s132 of the Mental Health Act 1959 so it’s been the law of England and Wales for exactly sixty-five years now: 2024 is the blue-sapphire anniversary for this law which received Royal Assent on this day, 29th July. How can it be we have senior managers and organisations still saying they just haven’t heard of it, Coroner’s citing bed management practices which effectively disregard its implications and a regulatory, oversight system which doesn’t call things to account when it’s ignored?!
How can it be when the regulator, the CQC, issued guidance on the implementation of s140 MHA in autumn 2019, it was then suddenly withdrawn after just a few hours on the internet (not conspiracy theory – I have a downloaded copy of it) … this stuff affects people’s lives, as we know from the Coroner’s courts and from organisations like the British Medical Association sounding their alarm.
I admit – I really, really don’t understand why we ignore the law and why there seems to be little to no correction to this by those who exist to ‘police’ it when we know the costs are measured in human lives and fundamental rights.
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 