I recently posted about proposed amendments to section 136 Mental Health Act 1983 (MHA) made by Lord Davies of Brixton and there seems to be lively debate on social media about the merits and problems posed by his tabled changes. The noble Lord has suggested more changes and this post is about his proposal for section 140 MHA, – see amendment 157 in the marshalled list of amendments so far. Regular readers know this has been a topic over which I have obsessed for the best part of twenty years, since I first read it when reading the MHA from start to finish. Sixty-five years old as a provision, some NHS commissioners and senior management psychiatrists haven’t even heard of it and I know of no part of the country which “does this”, well or otherwise.
Some background for those who are unfamiliar: skip forward to the first sub-heading below if you are familiar.
If you’re less familiar with s140 MHA – the provision demands that Integrated Care Boards (ICBs) in England and Local Health Boards (LHBs) in Wales provides a list to the relevant local social services authority (LSSA) of hospitals which can receive patients in circumstances of special urgency or patients who are under 18yrs of age. In theory then, you could FOI your local IBC or LHB and ask for a list of those hospitals. The idea is, in the first part, that where Approved Mental Health Professionals are managing acute risks involving an urgent necessity to admit someone, they should be able to look at the relevant list from the NHS and see where there are available hospitals who should have necessary arrangements in place to admit someone before badness occurs.
But it doesn’t always happen – I’ve done dozens of FOIs over the years and it doesn’t take you very far. The provision to nominate hospitals is effectively ignored in most areas either by a total failure to specify or by simply specifying every hospital in that mental health trust area without running any of them so differently they would have a real, effective contingency available to receive someone who might remain at risk of suicide or homicide, if left un-detained.
LORD DAVIES AMENDMENT
Section 140 MHA currently looks like this –
“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.”
If amended as Lord Davies suggests, it would look like this –
(1) 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, ambulance authority and chief constable for an area wholly or partly comprised within the area of the CCG or LHB specifying the hospital or hospitals administered by or otherwise available to the CCG or LBH in which arrangements are from time to time in force. —
(a) for the reception of patients in cases of special urgency;
(aa) for the reception of patient who require admission to hospital and are currently under detention by the police service;
(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.”
(2) lt shall be the duty of every integrated care board and Local Health Board to ensure that patients who are assessed as requiring admission to hospital under this Act are admitted in a timely and appropriate manner.
(3) lt shall be the duty of every integrated care board and Local Health Board to appoint a designated officer that is responsible for ensuring the arrangements required in subsections (1) and (2) are functional.
[The bold is my emphasis to show what was added: nothing has been removed.]
TOOTHLESS
Various people have pointed out problems with section 140 over the years, including the point that nothing within the provision itself obliges the hospital specified by the ICB or LHB to actually receive the person subject of the poor AMHP’s frustrated attempts to ensure a safe, timely admission. I’ve known commissioners and provider mental health trusts argue about urgent admissions where the ICB argues the provider has the resources they require to ensure urgent admissions and the provider trust argues it doesn’t. So the commissioners seek to avoid liability for under-commissioning by blaming the provider for not adequately managing resources given to them and providers argue they never had enough resources to start with.
That one can go ’round and ’round for a while, trust me and would you prove it either way?
Remember: the NHS in England and Wales took deliberate decisions over the last decade or more to reduce the number of inpatient beds at a time when demand for secondary, specialist mental health services was going up. Ten years ago I was involved in the Crisp Commission which was asked by Professor Sir Simon Wessely to look at the question of inpatient beds and the findings were that either we had too few beds or too few alternatives to admission, but that the balance of inpatient and outpatient care was not correct. Since then, we have a Brexit a pandemic and a further rise in demand with a subsequent reduction in beds and the balance is even more skewed than before.
SOME IMPLICATIONS
If you are familiar with the toothlessness of the current provision and read the proposed amendment, you’ll probably be glad – I certainly was. Including a requirement for the ICB and LHB to inform the Chief Constable allows the police to demand clarity about this. Adding two new sub-sections which require the arrangements to be effective and for someone to be appointed to ensure this is also welcome.
One could infer the obvious potential for Chief Constables to consider legal action for breaches of the new amendments which continue to impact on their resources and legal liabilities under the Act, albeit the spectre of public organisations suing each other or seeking judicial review is unedifying, albeit not unprecedented.
We could argue the suggested amendments would not be necessary at all if the NHS had operated s140 in the spirit intended and if that had been “policed” by organisations like NHS England and the Care Quality Commission during inspections but I’ve been involved in past discussions about that and all that happens is you get back to the “commissioner versus provider” debate of whose fault it is things don’t work properly. Perhaps the official reference in the proposed s140(3) MHA will be helpful in making things work.
NHS ENGLAND
One further point: many “beds” in the countries’ psychiatric systems are not commissioned by ICBs or LHBs – in England, for example, so-called “Tier 4” beds in child and adolescents mental health services (CAMHS) are commissioned by NHS England. Secure beds in medium and high secure mental health care and many specialist learning disability beds: all commissioned by NHS England which is not an ICB or an LHB so section 140 does not apply to them. Difficulties securing timely admission to those beds are amongst the worst we know because the beds are numerically scarce so any unscheduled but urgently necessary admission for those beds wouldn’t necessarily be affected this.
NHS England once stood up at a conference in 2018 to point out they don’t do something similar because they’re not legally obliged by s140 to do it. My response was to suggest that even if s140 doesn’t apply to them, they still need to be careful to ensure people’s fundamental human rights which could easily be breached by a failure to ensure timely admission, especially affecting articles 2, 3, 5 and 8. But there we go … what do I know about it?
I can more easily get behind these amendments than those for s136 MHA, but I still wonder about the decision not to apply them to NHS England and how about it will all be “policed” given, the failure to police it all and the fact the provision is barely known about is why we’re sixty-five years in to this and still seeing daily problems of s140 failure being linked to a considerable number of suicides and some homicides.
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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