The Mental Health Bill is now in the Committee Stage of the House of Commons and a group of fifteen MPs is scrutinising everything which has gone so far, to get the Bill ready for the Third (and final) reading in the House. If it then passes, it becomes law after Royal Assent and we’ll have to wait to learn the implementation date for its various aspects – some may take years, yet as the NHS is not ready at all for what the Bill contains.
The big update from Committee stage so far relates to the House of Lords amendment to change sections 135/136 of the Mental Health Act 1983. You may remember, the Lords voted to extend 135/136 powers to non-police professionals, something which the Government spokesperson in the Lords pointed out did not have Government support. You can read about that in other posts, suffice to say here, the committee voted to remove the Lords’ amendment and it appears 135/136 will remain powers only available to police officers. Of course, nothing prevents an MP tabling something similar for third reading, but given everything so far, I doubt that’s like and in any event, unlikely to succeed.
So there it is: the police response will remained baked in to our social responses to mental ill health emergencies, with only the police allowed to do certain things.
COMPLETELY STUMPED
Inspector Jon Owen QPM from Avon and Somerset Police is the only serving UK police officer to have been recognised as an expert witness in UK coroner’s courts for mental health related inquests. He has become a friend and we often discuss these matters at length. It’s a really healthy thing, I think, that we don’t always agree – I certainly see it as helpful to have someone as knowledgeable as Jon arguing against what I sometimes think and hearing cogent reasons why he disagrees because it really does make me go more deeply. He presented me with the only real-world scenario that made me wobble about the Lords’ amendment to ss135/136 because I did not and still do not really have an answer for it. It’s worth airing because it’s not an uncommon situation at all and it has been linked to suicides and that’s why legal amendment to the MHA is important and why the current Bill leaves this nightmare untouched.
Imagine someone arriving in an Emergency Department without reference to the police – it doesn’t matter whether they walked in or were assisted there by family, friends or the ambulance service, etc. It also doesn’t matter whether our situation occurs soon after arrival or later on; or whether it occurs amidst Mental Health Act processes for assessment or admission to hospital. The situation simply is, the patient becoming distressed by their situation and threatening or trying to leave the Emergency Department in situations where everyone connected to their care is fearful of what will happen, should they manage to do so.
Remember: the police are not there.
Also remember: the threshold for implementing s136 MHA is lower than the threshold for the Right Care, Right Person initiative – in other words, you can have a situation where s136 might be thought a useful intervention in a situation where there may not necessarily be an immediate risk to life or risk of serious harm so whether you’ll get a police response in that situation isn’t obvious to me at all.
So what should happen?
CURRENT LAW
Under current law, nobody in that Emergency Department will have a legal ability to detain the man, other than briefly under Common Law if they perceive there is an imminent risk to life. You could have any number of them present, including an ED doctor (of any grade), a “section 12” doctor / psychiatrists, a mental health nurse, an Emergency Department nurse, an Approved Mental Health Professional (AMHP) or any other health or allied healthcare professional you want to name – and NONE OF THEM have a legal authority to detain that patient for their own safety, pending MHA assessment or admission. You might find some professionals messing about under the auspices of the Mental Capacity Act but that will often be unlawful as well – the ONLY professional in the United Kingdom with legal authority to intervene in those situations is a police officer turning up to invoke s136 MHA.
Now, amendment of s135/136 in the way proposed was not the only way to ensure Jon’s scenario could address risk without reference to the police. When Professor Sir Simon Wessely’s review of the MHA was published in 2018, it made no mention of amendment to section 5 of the Act, but the Government’s response to the review did. The idea – never brought forward in to the Bill itself – was to allow s5 MHA to be used by doctors in Emergency Departments, just as it may currently be used by doctors on all kinds of wards: medical, surgical and psychiatric. It caused a similar debate on social media to the one we saw about “authorised persons” for 135/136 – that it wasn’t appropriate or safe for clinicians to be doing this sort of thing in ED (despite the debate never addressing why it wasn’t safe in ED but could be safe in those other settings!) and there was obvious and understandable opposition to it from the Royal Colleges of Emergency Medicine and Nursing.
So what is to be done?
The collective impact of all these different objections is: only the police service can fulfil the legal response to Jon’s situation and that remains the case even if 999 calls are struggling to ensure they turn up. Remember: RCRP is leading to us seeing cases where obviously high-risk missing people are walking out of EDs and mental health units in circumstances where all the thresholds for police response are met and the police are still declining calls, sometimes defending that decision not to attend in Coroner’s courts.
CORE BUSINESS
In 2013, Lord Adebowale published his report in to policing and mental health in London, calling mental health “the core business of the police”. This phrase was used for several years but fell out of fashion after I heard one mental health lead for NPCC reject the claim entirely saying it was never correct. It depends what you mean:
I was interviewed by Lord Adebowale for his report: he did not mean the police should busy themselves trying be over-involved in a system unnecessarily, he merely meant that it is inevitable the police will encounter a large number of us, affected by our mental health. He meant that it is unavoidable the police will end up becoming involved in these things, because don’t always get the right care; people aren’t always able to access the NHS even when they want to; those of us affected by our mental health are often victims of crime, indeed targeted because of our vulnerability. To that extent, how anyone can think you can spend your life policing without finding mental health related demands to be a core part of what you do, I’ve absolutely no idea at all.
You can argue by all means the service is over-relied upon, you can argue it takes too long to get other agencies involved in things, that it’s too difficult to handover responsibility which can only ever be a police responsibility in the very short-term and of course you should argue that. I’m not saying (and this blog has never argued) that all is well and officers of any rank should accept things as they are.
IMPROVISE, ADAPT, OVERCOME
Of course what you can’t really argue now is that Parliament wants other agencies to be stepping up to detain their own patients where that is necessary. Parliament and the Government had an opportunity to make sure other professional groups were equipped with the legal powers to take care of business and we found those groups opposed and objected quite vociferously and the Government made the decision to insist that only the police can be a solution to Inspector Owen’s situation where every conceivable kind of professional could be present in a situation they are perfectly capable of managing except for the fact they neither have nor want the legal powers to manage it.
File this one alongside the other MHA reality that Parliament deliberately do not want the police to be able to keep people in mental health crisis safe in their own homes when they otherwise wouldn’t be – they want the officers to be reliant upon under-funded, under-responsive organisations who do not see mental health emergencies in private premises as a matter for those professionals who can actually deal with them, instead preferring the police “improvise, adapt and overcome”, as Gunnery Sergeant Highway did.
Awarded the President’s Medal, by 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
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