It was an eventful night in the UK’s House of Lords on Monday evening and my phone / email has been going all day long today. Thank goodness I always have *ALL* my notifications turned off! – couldn’t have coped with that many unscheduled contacts in one day, as I was already double busy! I hope this post will address some of the questions coming in from police, AMHPs, MH nurses and then on social media, paramedics and a psychiatrist. Nearly a full house!
In summary, then – The Lord Kamall tabled amendments driven by Baroness May of Maidenhead (former Prime Minister, Theresa May) to change the wording of sections 135 and 136 of the Mental Health Act 1983.
We can summarise the change of wording in two short sentences –
- Replace the word “constable” in both s135 and s136 MHA with the words “authorised person“.
- Add a definition of authorised person” to s145 MHA to state, “medical practitioner, Approved Mental Health Professional, mental health nurse or doctor or anyone else specified in Regulations” by the Secretary of State for Health.
You can read Hansard for yourself to see the debate. Doesn’t take that long and you may well spot other issues … I don’t actually have space here for all of mine!
PARLIAMENTARY DEBATE
First things first, I worried about the quality of it all, I really do. Sorry to sound so depressed about it or to risk sounding “I know what I’m on about”, but I really did have a sense that some of the things said in the debate were not understood by the speakers and they were, perhaps, relying on briefings given by various stakeholders and let’s remember vested interests in play here. Whatever happens, it should be primarily about the benefits to the public and I’ll return to that again at the end.
One easy example: you’ll notice in the second bullet point, the word “paramedic” is missing but it could obviously be put in to the Regulations mentioned. But I was left wondering why it wouldn’t be a substantive profession in the Act itself because Lord Kamall stated his background research had showed him that 90% of paramedics agreed with the proposed change.
Leaving aside the obvious point about why paramedics were being consulted about a proposed change that doesn’t actually mention them specifically, I was surprised at the 90% figure and am inclined to wonder about the veracity of that “research”. My own experience of paramedics, including having twice had to look at this very issue in 2014 and 2017 when it came up for discussion during various reviews, I would suggest it may not be 90% of paramedics against it, but it’s definitely a majority. Of course things change and perhaps demand and the changing attitudes towards mental health demand in paramedicine mean I’m out of date!
Let’s see if College of Paramedics release a statement about this now we know it will be debated in the Commons.
LET’S GET IN TO IT
So what does this mean for whichever professionals may yet end up with this option?
Well, the amendment does state the authorised person would have to be “trained and equipped to carry out detentions under this Act and who would not be put at unnecessary risk by carrying out those functions.” Just loads to get in to there, but I’ll keep it brief –
- I presume it means, if a relevant professional is not trained, they cannot use the powers.
- So what does “trained” mean – some accredited course or left to individual trusts / authorities to decide what’s necessary?
- What will be the requirement on mental health trusts, local authorities and others to actually train staff? – as worded, the amendment doesn’t compel those organisations to do anything after this amendment and it doesn’t compel individuals professionals listed in the proposed s145 to undertake training.
- Bearing in mind it will, of necessity, need to include at least some control and restraint training and breakaway training for safety reasons – not all detentions apparently free of “unnecessary risk” remain low risk. Unpredictable things can and do happen and matters escalate, even with the best planning and communications.
- Will the relevant professionals have a choice about whether they are trained? – we do know there are very disparate views about this proposal in every one of those professions, irrespective of whether it’s 90/10 or 10/90.
- If you were an AMHP would you agree to be trained and authorised?
- We also know some professionals undertaking some of the rolls suggested work perfectly well in their current role with disabilities and physical restrictions and that may mean they couldn’t carry out the functions of an authorised person.
- We must imagine it might require at least some degree of compelling people to do things or go to places and exertion, even if only by forcing the doors off properties and I have a big concern about that.
- No mention made in the amendment of powers to search the person after detention, so section 136C would apparently remain unchanged meaning the authorised person can’t search the detained person to ensure safety – that’s an obvious oversight with safety implications.
- People are quite protective of their homes and forcing entry to them without permission or even notice can be fraught with a load of issues you can never predict or entirely control.
Then, the list of professionals raised my eyebrow, not just because of the paramedic thing.
In the way I understand the parlance and hear it used, “medical practitioner” means a “registered medical practitioner”, ie, a doctor with a medical degree. The amendment then lists “mental health nurse or doctor” which gives us duplicity on the doctor issue. If it means something else other than doctor, that would need explaining – for example, will physician associates be covered by “medical practitioner” because we know there’s a debate raging in medicine at the moment about how those professionals are presented as if they might be doctors; or would PAs need specifying in regulations to bring them within scope? That needs tidying up.
PEDANT
My next points risks being seen as pedantry, but I’ll try to ensure it’s not. Lord Kamall stated in the debate –
“The proposed amendments would remove the need for the presence of police at mental health incidents in the absence of any risk.”
Well, there are no section 135/136 situations which are absent risk. If there really is no risk (whether of self-neglect, disengagement from medication which could lead to relapse or of self-injury / self-harm), then why precisely is a professional thinking of doing something so intrusive and restrictive as a coercive, compulsory intervention which could see the person “sectioned in a mental health unit”. Perhaps Lord Kamall means no risk to the authorised person even if there is a risk to the person from themselves? But to be “sectioned” there needs to be a risk of something so serious to the patient or others that it justifies ongoing detention for weeks or months in a hospital and sections 135/136 are a stepping stone to assessment of that need.
If it were risk free, you probably wouldn’t be detaining the person at all!
It’s part of a number of confusions within the debate which are not in the Amendment itself, but which cause confusion about how or whether it would actually work, at least for me. Lord Kamall also stated something important which needs untangling –
“I make it clear that, although this amendment removes the statutory demand for the police to be the primary responders to incidents of mental health where there is an immediate risk to life or serious injury, the police will still have a role to play.”
CONFUSED
Firstly, there is a legal duty from human rights law to respond to some situations involving an immediate risk to life and amending the MHA won’t change that jurisprudence entirely. The duty owed under Article 2 and Article 3 (and indeed, all the other ECHR duties) is not owed by the police or by a mental health trust or local authority. It’s owed by the state, the United Kingdom.
I read Lord Kamall’s quotation, above and thought, “But didn’t we just have two or more years where Right Care, Right Person was being rolled out and the police themselves have defined their threshold for deployment as “crime, in progress or already happened” and crucially for this “an immediate risk to life or risk of serious harm” precisely because of the case law on Article 2 and Article 3?
That duty owed by the state doesn’t change just because this legislation allows in principle for some authorised persons to make detentions, because the question will immediately arise in some situations about whether they are actually available, whether they should be available and whether they are trained – including in things like forced entry to buildings – and in a position to deploy to something which, in the case of s136 MHA in particular, is usually unpredicted and unpredictable demand?
UNINTENDED CONSEQUENCES
My experience of all things policing and all things policing & mental health, is we need to think about unintended consequences. Quite a lot of the above covers some of them, but we need to think about others. Imagine you are the AMHP on duty and you need to arrange a s135 warrant for a known patient and having looked at things like the potential risk, using the previous risk assessments, patient history, etc., you decide you would be facing “unnecessary risk by carrying out these functions” so you contact the police for support from officers. Or, you do so because you are not an AMHP who is trained as an authorised person.
Let’s imagine the call handler or duty supervisors starts asking questions, not least because of police policy around RCRP and the discussion has to happen about whether there is an immediate risk to life and it is suggested there is not (because not all s135 situations involve such risks. Imagine a situation where it is agreed that threshold isn’t met, what happens next?
The law might mean the police take the view it is not for them to get involved; the AMHP may feel hamstrung by that because they either think the risk is too great or they are not an authorised person. So what happens? – who has the ultimate call about this? Are the police obliged to act in the absence of an authorised person or will the Chief Constable to go Chief Executives and say, “the law allows you to absorb these functions so it’s incumbent upon you as the executive of the trust or local authority to have staff available to give reality to your legal options. Your failure to plan for this does not create a duty for me and my officers to pick up the pieces.”
Or something similar.
WILL THIS BECOME LAW?
Finally, then – His Majesty’s Government oppose this amendment and as the final decision will be taken by the House of Commons where HMG has a large majority. I suspect the Bill will be subject to the whips and it would take a lot of Labour MPs to rebel on this point to make it law. By then, a number of professional bodies representing potential authorised person may have made position statements and one of them already has. There is vehemently opposition to this from the AMHP Leads Network. So I suspect when it’s all done and dusted, this will have been a foray in to the possibilities and particulars, but it won’t become law.
But I could be wrong.
And my view? – I’m not actually opposed to this in principle, but as you can see above, I have a lot of questions. I haven’t listed them all here because I’m over my normal word count for a post and I’ve only listed one of the real-world potential situations where I would imagine the police and the various agencies who employ authorised person would potentially clash about all this. When I wrote notes for this post, I had about five without thinking too deeply about it.
I don’t think in million years agencies could come together to address them all in a way that makes sense and most importantly of all, ensures the safety of patients and all professionals and I doubt enough potential authorised persons would wish to be authorised to make it workable, esp for unscheduled events but if they do, it will also take very significant revision of the joint protocols agencies should – but often don’t – have in place for the operation of the Mental Health Act 1983.
The Bill now moves to the Commons – you can see my resources page about the Bill for much more detail on all things related to it.
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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