Imagine a situation – but before you do, grab a cuppa or a soft drink because this one goes on a while! The officer raising the question raised a lot of issues and counterpoints in addition to posing me an exam-question to answer.
Someone is arrested for an alleged offence, they are assessed in custody under the MHA and deemed to require compulsory admission to hospital, let’s say under s2 MHA, the most common admission provision from custody. However, there is no bed immediately available to allow the Approved Mental Health Professional (AMHP) to make the application and the custody sergeant reaches the point where they have no lawful basis for ongoing detention under criminal law. Perhaps the decision is the patient will never be prosecuted and they are to be released without further action; perhaps they will be released under investigation or on police bail so the matter can be finalised later, after the person’s healthcare needs have been addressed?
The law now states the person should be released from police custody: the person is free to leave arrest because s34 or s37 PACE demands that release and no MHA application having been made on which to justify ongoing detention, they cannot (yet) be held under mental health law either.
But what if it is highly likely there will be a serious, untoward risk event like self-injury or suicide if the person is released: how should the police manage such a situation to protect the person?
FIRST THINGS FIRST
This is primarily a situation for mental health services to manage but I’m not inexperienced in knowing they often don’t, won’t or can’t and very much rely on the police just doing whatever’s thought morally necesary, regardless of the law. But, in the absence of any MHA application, the duty to ensure necessary ongoing care and support sits with the AMHP and mental health services, not with the police. It should also be borne in mind, NHS services being public authorities, various kinds of human rights obligations sit upon them, from article 2 (the right to life, which includes a duty to take reasonable steps to mitigate suicide or homicide, if thought possible), article 3 (similar duty to prevent inhuame or degrading treaetment, including serious self-injury) and article 5 (right to liberty, including not being detained outside the frameworks set down in domestic law), etc. Case law earlier this year has bearing in in, after Surrey v PC and others (2024).
Since the legal reforms of 2017 when the MHA was changed, it has been common place to hear of situations where officers rely on s136 MHA to detain a person as they leave police custody in the above circumstance, because of an absence of other such arrangements put in place by the NHS to ensure someone is ‘sectioned’ where this is necessary to prevent serious harm or loss of life. This is obviously far from ideal because the health system should be set up to give effect to section s140 MHA, allow identification of hospitals that can receive patients urgently; and Approved Mental Health Professionals (AMHPs) who have coordinated the MHA assessment have legal duties to make applications (s13 MHA) when the grounds are met – the grounds do not include any mention of beds or resources, they are entirely predicated on health and necessity arising from risk. (And for the avoidance of doubt, AMHPs can only make applications where the NHS has identified the hospital so my last point is not about AMHPs, it’s about the NHS leaving AMHPs in a position where they cannot comply with their responsibilities.)
So here’s the exam question – is it lawful to use s136 on someone where their MHA assessment has already occurred in custody and where we know s2 MHA application will happen eventually, but only once we sort the bed situation? After all, s136(2) MHA apparently tells us the purpose of this power: it is to remove someone to a Place of Safety “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”.
SO THE ARGUMENT GOES
The person at the heart of our dilemma has been seen and examined by a registered medical practitioner already haven’t they? – during that MHA assessment in custody there would have been two doctors involved and the assessment would have been coordinated by the AMHP. If the “purpose” is to ensure they are examined and interviewed by such professionals when it has already happened, surely the purpose to which the s136 situation is directed is futile and duplicating work already done?!
Hold that thought … here’s another situation for you –
A man is assessed in his own home under the MHA, by two doctors and an AMHP who want to make a s2 MHA application and no police officers were involved in this situation at all. At the end of the assessment, there is no bed and the doctors withdraw to liaise with bed managers to ensure one is found, the AMHP remains with the patient at their home address pending an outcome. (It’s for this reason you’ll find blankets, and food / drink supplies in the AMHP’s boot – for the long hours they often have to wait for beds in these scenarios.) Several hours later, with no bed in sight, the patient has become highly distressed and run from the address, implying they may well injure themselves or even die by suicide.
A 999 call is made to the police, reporting a high-risk missing person and officers start looking for them, to safeguard them from that risk.
Are we seriously suggesting that officers who find the patient en route to a motorway bridge or railway line cannot use s136 MHA because the person was assessed under the MHA three or four hours ago, even though everyone in this situation would now accept the person appears “to be suffering from mental disorder and to be in immediate need or care or control” etc., etc.? Despite the MHA assessment, what do we think about the need to return this person to a doctor and an AMHP to ensure attention is given after this escalation of risk for “making any necessary arrangements for his treatment or care“, which might now be different given the passage of time and an escalation of the risk profile?
It would be interesting, to say the very least, to speculate what a Coroner or inquest jury may think of any decision to not use s136 when someone’s known to be at risk just because a few hours earlier they were assessed under the MHA.
We know from other, admittedly different, inquests that arguments about what some may call “technicalities” about s136 MHA are not always convincing, when it comes to deliberately leaving people in situations where they subsequently come to harm.
I worry it would be the same in these situations.
AND HERE’S THE RUB
The purpose of s136 MHA is not to ensure a Mental Health Act assessment for consideration of compulsory admission and its “purpose” is really to keep people safe who are not safe because of the immediate risks which must be present to justify the use of the power.
Although assessment of someone detained under s136 is a statutory assessment under the Mental Health Act, it is not an assessment for compulsory admission under s2 or s3 – the two things are different. So-called re-assessment after use of s136 is therefore not a repeat of something that has gone before – MHA assessment for compulsory admission has one purpose; s136 assessment has another. These purposes can overlap and one can morph in to the other, but they are distinct things in law – and this is all reflected in the basic requirements of who undertakes each task.
- MHA assessment is assessment for compulsory admission and it requires two registered medical practitioners, one of whom must be “section 12 approved”, in addition to an interview by an AMHP.
- Section 136 assessment is by a registered medical practitioner (ie, by any doctor, albeit preferably by a “section 12”) and interview by an AMHP to assess someone’s requirements and ensure the arrangements.
- Nothing in law prevents someone under s136 being fully assessed MHA straight away but this is not required by the Act – and think specifically about the wording of s136(2) MHA once more: “examined by” … “interviewed by” … “and of making any necessary arrangements“.
In both situations, above – the patient being released from custody and the person who ran towards a bridge after assessment in their home, there is a problem which is very arguably a breach of law: when each MHA assessment concluded, particular obligations were then triggered for the AMHP, under s13 Mental Health Act. This provides that once the criteria for admission are satisfied, the AMHP “shall make the application” – and those criteria are not about beds or resources, but about the health of the patient, the contextual risk in play and the necessity of an application relative to that risk and to other, less-restrictive options. In fairness to AMHPs everywhere, their inability to comply with the Act is never unwillingness, it’s linked to the NHS’s inability (or unwillingness) to identify the hospital to which the AMHP shoujld make the application – and it’s the Doctor’s responsibility to identify that hospital or bed.
And where the admission process falls over because of resources and the situation develops with a change of risk and context, I submit it can be necessary to re-consider the situation and re-present it professionals for reparation … “of making any necessary arrangements for his treatment or care.” This may well require re-examination or re-assessment, depending on how the risk has changed and how much time has passed since the MHA assessment. It may be, for example, that urgent NHS consideration is required upon release from custody as to what the safety plan will be for the time that patient remains in the community prior to admission when the bed is found? In some situations of this kind, the NHS has ensured intensive crisis team support and family / friend safeguarding with an emergency plan if things deteriorate, but that can’t necessarily be put in place if the police just release someone awaiting a bed.
And that’s what went un-delivered in our situations, above.
Yes, an examination and an interview were completed but the “necessary arrangements” were not and there was subsequently a breach of law, touching upon fundamental human rights. It’s also fair to point out the situation changed when the risk escalated and the legal context changed: if the MHA assessment doctors walked away thinking a certain kind of psychiatric bed was required, does that remain the kind of bed required or have the developments given rise to a need for reconsideration? We know this happens in some cases: further disputes and discussion after MHA assessment about the type of MH bed required. How do we know it’s not relevant after our developments unless the person is re-examined or re-interviewed? We don’t, quite simply.
AND WHAT IF I’M WRONG?
This stuff has not been tested in court, but that doesn’t mean both positions are equally arguable: apart from anything else, the argument just raises a number of unanswerable questions. How recent must this MHAA be, to nullify any consideration of 136? – some delays for beds last hours, others last days or weeks. How do those varying timescales affect the argument that s136 can’t be used after assessment, especially as those medical recommendations from the doctor last for fourteen days – is use of s136 banned for a fortnight, no matter what risk unfolds? … or is it less about time and more about changes of risk?!
These are just two of the considerations arising from the position and it’s worth remembering, the above two types of situation are not the only ones where the s136 question might arise after conduct of a MHA assessment – there are others, so how widely applicable is this idea to other types of situation?!
No-one, to my knowledge, has made a civil claim against the police for using s136 to safeguard them against risk after having they’d already been assessed under the MHA. No inquest, to my knowledge (and I regularly read the Chief Coroner’s website for new preventing future death reports), has examined a decision not to use s136 where that was predicated on concerns there was no purpose to it, in light of s136(2) and previous MHA assessment. Indeed, the coroner’s case referenced above shows us some insight in to coroners’ views about arguing ‘technicalities’ when vulnerable people are at obvious risk.
If I’m wrong (that s136 can be used after MHA assessment if the grounds are met), then it merely means the police could end up being criticised for doing something to keep people safe when it’s fairly obvious they may not be safe. If I’m not wrong, then the police could end up having to explain why they failed to keep someone safe by use of this available power, when it was fairly obvious they weren’t safe. I know where I’d rather stand but that isn’t just a position based on the expedience of the way in which I’d rather be wrong – the MHA simply does not state that the power cannot be used after previous MHA assessment.
Indeed, mental health services themselves often ask, quite rightly, for consideration of s136 in these very circumstances, precisely because of delays and an escalation of risk.
ENDNOTE
The power can be used where the criteria in s136(1) are met and where there is a genuine belief in the need to have the person examined, if need be again, by a doctor and interviewed, if need be again, by an AMHP – especially where earlier processes have legally failed to ensure the person’s rights in law through the making of necessary arrangements for them.
All of this is a red-herring, of course:
We shouldn’t be in a position where there are bed delays taking days and weeks. It is, quite simply, not how the Mental Health Act is structured if it is to ensure the ECHR is something real for vulnerable people – s6 HRA applies: that it is unlawful for public authorities to act in a way which is not compatible with the ECHR.
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 