Those forces busy introducing the Right Care, Right Person programme have mostly introduced phases one and two of four. This means they’re addressing phases (1) welfare checks and (2) hospital walkouts, including AWOL patients. Phase (3) looks at conveyance (of Mental Health Act patients) and (4) looks at section 136 MHA. More specifically, phase (4) looks at the waiting periods which consume police resources after they arrive at a Place of Safety (PoS) with someone detained under section 136 (why it wouldn’t also include section 135(1) detentions in a PoS, I’ve no idea because it’s the same principle and identical laws at stake, but there we are).
The idea with phase (4) is that officers arrive with the person detained and handover responsibility to NHS staff within an hour, then resume to other duties. In Humberside, where RCRP originated, this approach applies to a PoS situated in a mental health unit, and not to an Emergency Department. In other areas, it seems the police are arguing this should apply in ED as well as a MH unit PoS. It’s also “interesting” that in guidance to Police and Crime Commissioners (PCCs) issued by the Association of Police and Crime Commissioners (APCC), they are pushing the idea that phase four is about all interactions by the police which leads to someone being taken to a healthcare facility of any kind, which is interesting mission creep from the original idea.
It’s some of the issues arising from all of this I want to cover in a post, not least because I’ve had more than one query about this from mental health professionals about the law on this.
TWO SEPARATE POWERS
Many don’t realise, section 136 MHA contains two distinct legal powers – in sub-sections 136(1) MHA and 136(2) MHA – if you want to think about the same issues relative to section 135 MHA, then it’s s135(1) MHA and s135(3) MHA you need to look at, which correspond precisely for the points I want to make in this post. I’ll be referring only to the s136(1) and s136(2) powers, for ease of writing and reading but bear in mind it relates to 135 as well.
- Section 136(1) is the power for the police to detain someone and remove them to a PoS – this is a power for constables only (albeit others can assist in management or conveyance after the officer makes a decision to detain).
- Section 136(2) is the power to detain someone at a PoS after they arrive there – this power is not limited to constables and wide opinion and national guidance points out it is a power which may be exercised by those who are a part of operating the PoS.
HANDOVER
For well over a decade, national guidance on how partnerships should work after use of s136 has suggested there should be a handover between the police and the MH unit PoS staff, after arrival – we’ll come to ED issues shortly. That handover should involve a period where the patient can hopefully be settled at the location, both groups of professionals can check and share background information so risk can be fully understood and a decision take about handover and how to proceed. Page 8 of the 2011 guidance published by the Royal College of Psychiatrists, signed up to by all the relevant professional bodies across the police, NHS (both MH and ED) as well as local authorities and ambulance services endorsed the document – that guidance makes clear an expectation the police should be able to handover patients and leave within an hour, even where patients exhibit distressed or disturbed behaviours.
Now! – I’ve rarely known this happen in reality, but it’s been the aspiration for at least thirteen years and it relates to MH unit PoS services only. By definition, it would require sufficient NHS staff to be able to ensure oversight and monitoring of someone, trained as necessary in not just the clinical aspects of mental health care but also with the capacity to ensure someone remained safe whilst in the PoS itself, pending assessment. A MH unit PoS should be built in such a way there is a necessary amount of ‘therapeutic security’, as I believe it’s termed. Doors which remain locked, ligature proof throughout, etc. This naturally mitigates the risk of flight and assists in ensuring someone remains detained but if a patient is determined to leave and infrastructure prevents it, it may raise risks towards staff.
So should the police leave on all occasions? – well, the guidance (p8) suggests it should be possible even where someone is not completely settled and calm, but we also need to remember professional staff working in the mental health sector of the NHS disproportionately experience violence at work and we know staff have been assaulted and property damaged during s136 processes. Most areas have a risk-based approach to whether the police can leave – if someone is actively assaultative or has a significant risk history of such behaviour, officers sometimes remain to prevent assaults on NHS staff and assist the process to safe completion. RCRP’s intention’s intention of reducing handover periods is mentioned within the National Partnership Agreement (NPA), but only “so far as it is safe to do so” and stating that all needs to be worked out locally.
So we’re back to the need for detailed, effective local protocols across five MHA business areas which we know some police-NHS areas don’t have and which we know keep failing to survive scrutiny with Coroner’s Courts where they do exist.
EMERGENCY DEPARTMENTS
The NPA makes no distinction between MH unit PoS services and occasions where someone is removed to an ED as a PoS – and it should be borne in mind ED acts as the first-destination PoS 42% of the time, according to the last Home Office data on the topic. (What would be interesting to know is how many of those removals to ED are because the patient also needs the kind of physical healthcare intervention which only ED can provide, versus how many are there because there is no MH unit PoS available. I suspect we have far too many of the latter.) Some forces appear to think the one-hour-handover idea should apply in ED as well, despite the fact this is not what is done in Humberside where the programme originated.
So what is the law? – well, the person detained by the police under s136(1) remains in police custody until such time as the 136 process itself concludes or the person is handed over to those operating a PoS who can detain under s136(2). Whilst nothing prevents this happening in ED and whilst there are examples, it’s worth noting they usually apply to very unwell people who are literally unconscious or something close to that, or who have been medically managed to unconsciousness and aren’t at risk of walking out of ED unchecked. And this is crucial: nothing in law obliges ED or a MH unit PoS to take over the legal custody of someone who has been removed there by the police.
Nothing obligates them – at all. And if the police decide to walk anyway, we have a problem.
We must remember what happened in the Webley case – this was a civil challenge against the Metropolitan Police and St George’s NHS Hospital Trust in London, which contains an ED. A man was removed there under other MHA powers and the police agreed with ED to handover. Officers only left after providing background information to the NHS and giving them time to get their staff in place to take over. Having done so the police left and Mr Webley subsequently left the department and fell from a height, suffering life-altering injury. In the civil case which followed, the court found the Metropolitan Police were not liable in negligence because they had only left after securing agreement, giving information and time to the NHS to take over. The obvious implication was, if the police had just walked out without those aspects being satisfied, the court may have taken the view they were also liable or indeed entirely liable.
WEBLEY HANDOVERS
So in some areas they now talk about “Webley Handovers“, for s136 – an interesting name to adopt, given Webley was not about s136 at all. It’s aimed to ensure not only the above requirements are satisfied but that it’s all documented to put things beyond doubt as to what happened. I would love to know whether it’s correct one police force is leaving that information on a form and walking out after the hour, because it would make me wonder about whether that satisfies the requirement to ensure others have agreed to take on responsibility? But whether it’s true or not, some forces are discussing with EDs they want the one-hour process to apply there as well, citing the NPA as the source of this being a requirement when in fact the NPA is not a legal document and it doesn’t specifically call for this in ED, either. The APCC’s guidance does, but again, it’s not a legal document.
So what is to be done? … well, probably, partnership work. It’s never been otherwise.
Ultimately, this will come down to the law if areas cannot work out how to cooperate with each other and there is dispute after an operational incident. The argument “it’s in the NPA” won’t be a defence to a question of liability, it will be about the law, as it always is. Yes, NHS England signed the NPA but that doesn’t legally oblige a particular acute trust operating an ED or a mental health trust to accept responsibility for a person removed by the police, if they have what they consider to be a justifiable reason for declining. Ultimately, the police cannot force the NHS to accept legal responsibility if they are not, in fact, legally responsible, which is something which shouldn’t really need pointing out and it’s an ironic point, given so much of RCRP is about the police pointing out officers are not legally obligated to undertake other things, like welfare checks.
Phase (1) is all about the police declining to be forced to accept responsibilities for those checks when the law doesn’t oblige them to do so. Phase (4) is similar but in reverse – whilst everyone would probably agree it would be preferrable if patients requiring care could be handed over to NHS staff, it won’t always be possible. Even EDs are alive to that, if you look at the RCRP position statement from the Royal College of Emergency Medicine, published a few months ago. Point 3 of its proposals does include the notion of police being able to leave patients with them, but only “with properly commissioned security services with training in trauma informed care, mental health and safe restraint”. You can infer their position on this if such support were not commissioned.
ONE HOUR
There is still a debate ongoing about whether section 136 is over-used. We saw this at the Health and Social Care Committee session on RCRP where the Chief Constable of West Midlands Police and the Chief Executive of Birmingham and Solihull Mental Health Trust both spoke about use of s136 MHA in Birmingham specifically. Leaving aside their suggestion the power is used over 2,000 times a year in the city (when the Home Office data for all of West Midlands Police stated it was used 1,888 times across the whole force in the full data year previous to the claim), they went on to conclude that most people detained did not require admission to hospital showing, in the Chief Constable’s words, that the police were not the appropriate agency to be responding.
I’m not sure it does show this – which is my way of saying it definitely doesn’t show this. The outcome of a s136 detention tells you nothing at all about the legitimacy of the original encounter by officers or their decision to use the power in the first place, but it harks at the idea s136 is over-used. I’ve said a number of times: it’s over-used, it’s under-used and it’s mis-used and not used where it should be. There is such a breadth of opinion about what this power is *for* and when it should be used, that I don’t think we’ve got any kind of consensus at all about it’s overall use and I will remind everyone, Baroness Hale (former President of the Supreme Court) has argued for years in several editions of her book on mental health law, that we do not know what s136 is for and that it may well be under-used!
Make of that what you will but what it does show is there is still much for some to know and learn about this power and all of the things which flow from its use. I admit to hearing the various ideas and discussion about all this and thinking insufficient regard is being had to the law itself. Once you understand we are necessarily constrained by it, you cannot fail to see the problems in some of the discussions we’re hearing and it would be disingenuous of the police to become frustrated if the NHS decline to do things for which they are simply not obliged by law to do so when the police are insisting on doing exactly that in other parts of their RCRP partnership.
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.
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