How would you know if section 136 is over-used in an area? The alleged overuse of this power has been a near-constant refrain in the background of the work I’ve done over twenty years. Regularly brought up, various reasons given for the alleged over-use: it is one of those ‘zombie’ arguments, that never dies – it just keeps getting up again and again every once in a while, usually deployed as an argument for a background reason, rather than because of something about the use of the power itself. It is a point which has been raised by policing ministers in the past, as well as by mental health providers.
The main reason given for the claimed over-use, in my own experience, is the outcome from use of the power – if a police force uses the power 1,000 times a year, you can then examine a number of outcomes and these are most, but not all of them –
- How many people were detained MHA in hospital?
- How many people were admitted on a voluntary basis to hospital
- How many were referred (or re-referred) to a community mental health service for support
- How many were referred back to their own GP for support
- How many people had a health-need which may not have been a mental health problem, but which had presented in a way which made it a fair shout by the police officers that they did (diabetes, epilepsy, etc.)
- How many people had no healthcare need but which had presented in a way which made it a fair shout by the police officers that they did?
- How many people had no healthcare need and everyone was left wondering why the officers would have thought about mental health?
Firstly, I’ve rarely known this level of analysis: it tends to just be a) how many were admitted; b) how many were referred to community services / GP; and c) how many were discharged without further action. Across time and place, I’ve known these numbers vary. For example, I recall a presentation by Cleveland Police in 2011 about the introduction of their ‘street triage’ service and it was motivated by very poor s136 outcomes where officers, it was argued, were using the power too often on drunk people experiencing social emergencies, like students failing exams and drinking too much. Fewer than 10% of those detained were admitted, more than half were discharged and the rest were referred. Meanwhile, other areas were reporting more than 50% of those detained being admitted, most of the rest being referred for a community mental health service or GP support and just over 10% being discharged fully. The two areas I’m contrasting here did have different usages of the power, one of them using s136 MHA around 500 times a year for a population of half a million, the other using it as often, but whilst covering over one million people.
Of course you can infer a certain amount from outcomes.
NON USE OF SECTION 136
So far, though, everything I’ve written above is about use of the power and it’s by no means the only thing we need to examine to consider whether or not an area is seeing the “right” amount of 136 usage. You also need to look at two other really important things –
- Criminal Arrests – how many times have officers arrested someone for a criminal offence in circumstances where the custody officer has ended up wondering why the person was not detained instead under s136 MHA.
- Indeed, we’ve known some custody officers decline to authorise PACE detention at the police station, directing officers to consider use of s136 and removal from the custody area to hospital, including in circumstances where use of s136 at the original incident would have been unlawful because it took place in a private dwelling.
- So you need to know this if you’re analysing the “appropriateness” of your 136 levels – you need to know how often it was used when perhaps it shouldn’t have been AND you need to know how often it was not used when it should have been preferred.
- And you then have a big explanation to provide about how you have judged situations where both options were lawfully available to an officer. It’s all very well a custody sergeant or a headquarters lead looking at incidents and thinking “the officer who arrested for an offence should have used s136”, but that’s a subjective judgement and if both the arrest and the MHA detention were lawful responses, who is to say who is correct in their approach?
- Non-detention – we know from colleagues in Emergency Departments and the ambulance service the police will often assist someone “on a voluntary basis” and either take someone to ED or ask their colleagues in green to do so.
- We also know some of these situations should have been use of s136 MHA.
- In a memorable Q&A sessions at a conference, I remember an ED consultant very politely asking if I had a view on whether s136 should have been used in a situation where the police had carried a man in to ED from an ambulance in leg restraints and handcuffs, claiming that he had agreed to being transported on a voluntary basis.
- We have seen broadcast television of street triage schemes where coercion is used to move people and it’s then revealed it was not formalised use of s136 and things were done voluntarily.
You need to analyse all of this properly and I’m not sure many forces are even gathering, never mind analysing the occasions where their officers are calling ambulances to take over or assisting people to ED and scrutinising whether it was genuinely voluntary.
FALSE POSITIVES & NEGATIVES
It’s a zombie debate – it just never seems to die and I can’t help but notice this as well: the debate emerges usually when one agency or the other involved in section 136 pathways is trying to achieve a broader point about resources or objectives. When I heard allegations in the past from the NHS that the police force I worked for was over-using s136, the force were – at that time – using s136 much less often than many police forces which were smaller. I used to pour over the annual data for 136 in West Midlands Police between 2005-2011 and it fluctuated up and down a little, but was usually around 1,000 uses per year – in a force with +7,000 officers and a population over three million people. At the same time, Greater Manchester Police, with a similar establishment and population were using the power over 1,500 times a year and Thames Valley Police, with +4,000 officers and a population of over two million, also used the power over 1,500 times a year. Nottinghamshire Police used to use s136 MHA about the same as West Midlands back then … but it was one third the size on both population and establishment.
Why?
If you want to repeat these kinds of analyses with more modern data, the Home Office publishes it and you can look up establishment levels and population on the UK GOV website to make you own comparisons – it would be helpful if the Home Office included rate of use per 100,000 of population, but there we go.
I think section 136 of the Mental Health Act is over-used. I also think it’s under-used, abused, mis-used and not used where it should have been. I think we criminalise some people who should just been detained under the Act but this can’t always happen because in many areas, more than half of police mental health crisis incidents are in private dwellings where Parliament has deliberately decided the police should have no safeguarding powers under the Act, in contrast to every nation in the world bar New Zealand and I think we take risks with safety and security by hoping to push people on a “voluntary” basis in to a healthcare system not always set up to ensure their situational safety when in reality we had coerced them and should have formalised that in to a process of protection and rights by using powers Parliament gave to the police.
Whether all of that ends up with a situation where we could credibly and objectively argue section 136 is over-used and unnecessarily used overall is far from clear. I’ve simply never known credible analysis of all this, presented in a way which makes the allegation make sense but what I have seen is this: partial, uninformed argument about alleged over-use being pushed in such a way as to make it obvious we are blind to risks and threats and it pleases me not one jot to point out, yet again, how many times Coroners have ended up telling us about human tragedies where arrests took place which should have been detention under the MHA or where officers fobbed someone off in to an Emergency Department without sufficient risk assessment of what would follow.
One thing worth bearing in mind: Lady Hale, former President of the UK Supreme Court and author of a seminal, multi-edition textbook on mental health law wrote in 2017, “We still don’t know what section 136 is for” before outlining the very practical problems officers have in accessing a place of safety and having to endure very long waiting periods for assessment. She observes most situations where officers are contemplating use of s136, they would almost certainly also have the potential to consider other legal powers. Therefore, she argues, there is every reason to wonder whether section 136 is actually under-used, overall.
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 am not a police officer.
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 