My email inbox has been hit a few times in the last month with queries which revolve around the same issue: the issue of police using section 136 Mental Health Act 1983 and then handing over the person detained to the NHS and leaving within the hour. You may recall: phase four of “Right Care, Right Person” is about the one-hour handover and it seems discussions in different areas are giving rise to some problems around what organisations *must* do.
The National Partnership Agreement for RCRP, published in June 2023 outlines this expectation, not only for detentions under s135 or s136 MHA, but also for police involvement in an incident which then sees a reduction of risk – both should be handed over within “one hour … unless mutually agreed in relation to a particular incident on a case-by-case basis”.
We must remember, the NPA is a strategic partnership agreement which, both when it was published and now, is describing aspiration on the part of the signatory organisations – and crucially for the point being made in this post: the NPA is not the law. When police officers and healthcare professionals are emailing me, one question being raised is about the law around handovers and there are a few things which need to be said again (because this discussion has gone on for decades about when the police can, must or should leave someone they’ve detained under s136 MHA in NHS care).
TONI SPECK
There is no legal obligation on the NHS whatsoever to even ensure there is a health-based place of safety (PoS) in a mental health unit, never mind a legal duty upon the NHS to take over responsibility for those detained by the police as the officers leave. Nobody disagrees such arrangements would be ideal for all manner of reasons in most cases – having the police hanging around for hours on end is, most importantly of all, not great for the person detained unless they happen to prefer police involvement in their crisis care (and several people I’ve met, do prefer it). All manner of statutory and non-statutory guidance suggests this is the way in which most of us detained under s136 Mental Health Act 1983 should be cared for and assessed. We know this from an application made in 2015 for judicial review after the inquest in to the death of Toni Speck in North Yorkshire. Toni had died in the custody of the police in York after developing serotonin syndrome following her detention.
At the inquest in to her death, the Coroner decided it wasn’t relevant to consider why there was no health-based PoS to which she could be taken, because the police still had the option of going to an Emergency Department if they believed police custody was not appropriate. Toni’s family opposed this decision in the inquest and then sought to bring judicial review proceedings in the High Court to challenge this after the inquest concluded.
Punchline – there is no legal duty on a Primary Care Trust (later called a Clinical Commissioning Group and now called an Intregrated Care Board) to ensure a PoS is available.
It should follow fairly obviously: there is no duty whatsoever for the NHS to take legal custody of someone who has been detained by the police under s136 MHA and then keep them secure in that location in order that police officers may leave the hospital and resume other duties, however desirable it may be for everyone.
ONE HOUR HANDOVER
We’re hearing more about this one-hour handover after use of s136 MHA.
The fourth phase of Right Care, Right Person pushes for this and of course, the National Partnership Agreement was signed up to by NHS England and the Department of Health. The existence of this agreement in principle, however, does not create any express or implied legal duty for a particular mental health trust or acute trust to take responsibility for a particular patient a week next Tuesday at 9pm.
I don’t know whether it is because I changed my employment last year but my email box is being hit more regularly than before with queries from healthcare professionals asking legal questions which are obviously related to RCRP. In one example, it had been somewhat forcefully suggested the NHS had a “duty of care” to take custody of patients after an hour “because it’s in the NPA”. That’s not how this works: apart from anything, all police officers need to remember, there really isn’t a single organisation called “the NHS” because it’s comprised of hundreds of legally distinct entities and it doesn’t operate in a command and control way where NHS England sign something strategic document and all trusts and care providers are obliged to obey thereafter.
The importance of organisations developing mature, evolved partnerships is critical. There are already mental health trusts who release officers within an hour on a vast majority of occasions. It was therefore saddening to learn their police force had become very awkward with them about the few cases where this wasn’t happening – the trust stating there was always a specific reason, such as likely violence towards NHS staff, etc. but this all amounts to a big irony that I believe needs noting:
The police have overtly stated RCRP is about modifying their responses in situations where they are not legally obliged to act, for example by declining to undertake welfare checks unless there is no immediate risk to life. And yet there seems to be frustration when the NHS do the same thing and declining to take responsibility for people they are not (at least yet) responsible for.
So what are the rules here and what do we expect of each other?
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.
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 