You may be aware the Mental Health Bill is making it’s way through the Committee Stage of the House of Lords, having been introduced at the end of last year. This allows members of the Lords to table amendments for consideration later. A number of amendments have been tabled and this post is specifically about suggested amendments to section 136 Mental Health Act 1983, made by Lord Davies of Brixton.
It does need to be seen to be believed, unfortunately!
Any midwives reading? – how would you like legal powers and the related responsibilities to detain people in public places without a court warrant under s136 Mental Health Act 1983 and to remove them to a Place of Safety for assessment with an obligation if you do, to keep the person safe which might involve waiting there for 24hrs pending assessment by an Approved Mental Health Professional? Lord Davies is suggesting the word “constable” be removed from the provision and it be replaced with a real cast-list of professions, including midwives.
The most recent list of amendments is available on the Government’s website for the Bill. and this business from Lord Davies is amendment 158.
WHO CAN USE THE POWER?
Section 136 MHA is a police-only power in the United Kingdom (all four countries have a 136-type power) and no other single professional can decide to instigate anything similar. Lord Davies proposes to extend the provision by substituting the words “an authorised professional” which is further defined as —
- a registered paramedic,
- a registered social worker,
- a registered midwife,
- a registered nurse,
- a registered medical practitioner,
- an approved mental health professional,
- a police officer, or
- a person of a description specified in regulations made by the
Secretary of State.
Hence the question: how are the midwives feeling so far? I can give you a story from my own police service where midwives at Birmingham Women’s Hospital reported a new mum missing who had left a maternity ward soon after giving birth with long-standing mental health problems. It struck me that if the hospital were not keen to use section 5(2) or s5(4) on the patient before she left, there’s little chance we’ll see midwives running down the road to jump on the number 11 bus for outer Birmingham to use newly amended s136 powers.
We’ve had this debate before, albeit restricted (around 2014) to whether paramedics should have 136 powers. The first point to make is paramedics didn’t want them at that stage – I would presume from social media tonight they still don’t want them. I’ve already seen nurses saying they don’t want them, my guess is midwives won’t either. There are number of problems with the idea and we know this not just hypothetically, but because of the experience of other countries.
(I do accept things don’t always translate, but I suspect this one would.)
THE STATES OF AUSTRALIA
Mental health law in Australia is enacted at the state level so there are a number of Mental Health Acts across the country. Many of them allow 136-type powers to be used by all doctors, all mental health (or learning disability) nurses and all paramedics as well as the police.
I’ve had a number of discussions with Australian professionals about this and consistent themes emerged:
- Healthcare professionals would rather the police instigated use of the power – there is something detrimental to professional-patient relations from the one detaining the other.
- Healthcare professionals don’t feel equipped to discharge the power in a safe way – they are often not trained in use of control and restraint, other than personal safety “breakaway” training and not selected on the basis of fitness.
- Healthcare professionals in Australia often ring the police to come and do the coercion of those who are reluctant or resistant because they don’t see it as their job to coerce people from bridges, high streets and shopping centres.
If non-police professionals have these powers, are the police obliged to turn up and just do as they’re told if a nurse decides a detention needs to happen but also decides they don’t think they can do the detaining? – let’s remember: nurses and healthcare staff are not selected for their role on the basis of a certain level of fitness and ability to safely detain and coerce others but a decision to do this may well give rise to the question of “why didn’t you act” if they decide against doing so.
What happens if the police are called to assist and before officers have arrived and taken control (assuming they agree to turn up and agree they should be taking control – more on that in a moment) … what if the person assaults the nurse or midwife and runs off? – do we now launch a criminal inquiry for escaping lawful custody or a high risk missing person investigation? … or both?!
RIGHT CARE, RIGHT PERSON
A question for the current time: what if the whole scenario does not meet the police’s preferred RCRP threshold of “crime”, “immediate risk to life” or “immediate risk of serious harm”? – do the police become involved at all? There is no legal obligation on the police to attend incidents which do not trigger their legal responsibilities and whilst I’ve written before I don’t agree the RCRP threshold adequately captures them, I’ve written on this website for years that such thresholds do exist and it doesn’t necessarily extend to giving effect to detentions on behalf of others just because they say so.
So if the police decide they cannot come or have no obligation to do so, how are local authorities, ambulance trusts, mental health providers, acute hospital trusts, GPs surgeries and others going to work out how to have this newly detained person transported from place of detention to the Place of Safety? – and bearing in mind the police will not or may not be involved, how does the person remain safely detained once they arrive? In thinking through that question, remember that 42% of all those detained under s136 MHA are removed to an Emergency Department. So when a paramedic or GP rolls up to ED will they be asking ED staff to take over legal responsibility for the patient (when they have zero obligation to agree) or will the GP be sitting in ED for the next 24hrs whilst assessment is undertaken by an AMHP?
Even if you’re reading this and think the principle here is sound, the legislation would need significant additional amendment to answer some of these questions to avoid the law of unintended consequences where we have midwives taken decisions, things then go awry and people start expecting answers from others – especially the police – only to find out the vague way in which this law has been drafted (if we take it as it stands at this proposal stage) means it’s not specific enough about far too many things to be useful.
I’m just going to stop there – more could be said. This is a seriously bad idea!
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, 2025
I am not a police officer.
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