This blog is part of the series which will cover, in detail, the amendments to the Mental Health Act 1983 within the Policing and Crime Act 2017. This post is one of several which relates not the amendments themselves, but to the implications arising from them.
For background to the series, see the introductory post which outlines why I’m doing this and what other specific issues will be covered concerning laws that will come in to effect in the next few months. Current Home Office estimations of timescales suggest early May – but this is subject to a number of factors and may change.
It’s now a dozen years since I first read section 140 of the Mental Health Act 1983 – and I recently met some senior mental health professionals who never ever read or even heard of it. I came across this neglected provision because I decided to read the Mental Health Act cover to cover, as well as the Code of Practice to the Act, in lieu of being able to get any police specific training at all for my first job working properly on these matters. What was interesting at that time, in 2005, was that section 140 MHA was not mentioned once in the Code of Practice (1999), at all. It wasn’t mentioned either when the Code of Practice was updated (2008) or in the accompanying Reference Guides to the Act, which are published by the Department of Health. Another thing I’d done, in lieu of being able to get any specific training for the role, was buy and read the formidable Mental Health Act Manual by Professor Richard Jones. This book provides the text and a commentary on each and every section of the Act, so of course it was covered in there. However, the commentary was limited in comparison to that for other.
I’m not going to repeat my first post on section 140, so you can go back to that original post if you wish. This blog argues just two things –
When public consultation occurred for the latest Code of Practice (for England) in 2014, the draft Code didn’t mention section 140. I replied to that consultation asking why not, given it was missing form the two previous editions and from the Reference Guide, so it consequently seemed that no-one had heard of it. It’s implications may be widely ignored and I saw that increasingly as a problem, not only for the police. I was delighted to find, when the Code of Practice was published in 2015, this provision finally received a mention (see the section commencing at paragraph 14.77).
When legal discussion is occurring, I’ve often heard people resort to asking about parliament’s intentions, for a variety of reasons. By way of some background, section 140 of our current Act is just, in fact, a direct transfer to the ’83 Act of section 132 of the preceding 1959 Mental Health Act. So it’s a legal provision that has almost sixty years of history. That said, I can’t say much about that history, despite efforts to find out. All I can say, is that since 2005, I have done Freedom of Information requests to well over 50 different Clinical Commissioning Groups (or their Primary Care Trust predecessors) and I don’t find myself satisfied by a single,solitary answer I’ve received. I most recently did this in 2016.
The section itself says –
“It shall be the duty of every Clinical Commissioning Group and of every Local Health Board to give notice to every local social services authority for an area wholly or partly comprised within the area of the clinical commissioning group or Local Health Board specifying the hospital or hospitals administered by or otherwise available to the clinical commissioning group or Local Health Board 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.”
So what does this all mean? … actually?! –
The 1959 Act was not written at time where attention and pressure were on the niceties a mental health unit which considered itself ‘full’. From the histories I’ve read, a local county asylum would probably just continue to accept and accommodate patients thought to need admission, not withstanding such niceties as capacity or conditions. Indeed, earlier in my career, when I sought legal advice on MHA admissions, the barrister concerned advised that hospitals were actually not legally permitted to refuse admission made to them. I haven’t heard this repeated by anyone else since(!) – and indeed I’ve heard it repeatedly contradicted – but it attends to the point: where detention or admission is required, for safety reasons, it needs to be able to happen without compromising that essential point.
MORE THAN BUREAUCRACY
The need to admit someone urgently under the Mental Health Act is about more fundamentally important things than niceties and bureaucracy in our domestic law. It could also amount – it often does amount – to a human rights consideration: we know that prolonged detention in police custody (pending admission) can contravene Article 3, we know that protracted detention in custodial settings for no other reason than mental health problems can amount to an Article 5 violation; we know duties owed to patients who are known to be suicidal can give rise to Article 2 considerations, whether the patient is detained or voluntary. As such, dependent upon the precise circumstances, the need to act by making an application for admission may be something which triggers one or more of these various duties? – remember: no public authority may act in a way that is contrary to a person’s European Convention rights, by virtue of s6(1) Human Rights Act 1998. It must surely have been the intention of Parliament when writing and updating the Mental Health Act over the last sixty years that wherever AMHPs and DRs encounter people in urgent need of admission, that such admission can occur as it would if someone had any other serious, potentially life-threatening condition?
I struggle to read section 140 without thinking about its implications. I know that nothing in the section explicitly obliges the hospitals specified by the CCGs duty to receive patients where they have good reasons for needing to resist another admission because of pressure. But this, for me, is where the intentions come in to it – presumably, Parliament are asking CCGs to ensure that there are contingencies available to ensure that at least one of those hospitals is in with a fighting chance of actually receiving the person. Now whether CCGs commission in such a way as to ensure hospital run, as the Royal College of Psychiatrists recommends, at 85% capacity; or whether there are other mechanisms provided for around an increased availability of staff and space, to be triggered by managers in relevant situations – either way, it would amount to a plan. One thing you’d have to conclude by looking from outside, is that at least some NHS managers think that running a hospital near to its full capacity is more efficient than running things 85% full.
The conversation always was seems to come back to money: the NHS mental health system is under pressure and commissioners can’t afford to do anything other than cut. This doesn’t explain how some areas have been able to afford out of area and private sector care for those patients who couldn’t be admitted locally, when the cost of that has often been higher than the cost of not cutting beds at home. But finally, I remember reading the legal documents for the MS v UK case which related to a challenge against the NHS in Birmingham over protracted detention in custody. The lawyers representing the applicant, in their submission mentioned case from Ukraine, which I’ll be damned if I can name or find when searching for it! – I will update this page if my queries bring it to light. But the case essentially said that no state can defend a violation of the ECHR by claiming ‘economic necessity’: so you can’t argue, “we can’t afford to it in any other way”. It’s just not (legally) sufficient.
These issues are already live problems. It’s over ten years since a police force first felt that they were in such an invidious position because of the inability of mental health services to get someone out of custody and in to a bed which had been identified as necessary – in that case, the IPCC found that the force and its officers had broken the law, but that there was just no way they could have done otherwise, because if they had argued the technicalities and released the person from custody, they would have failed in other obligations. It was one of the genuinely rare “damned if you do, damned if you don’t” situations. Only a couple of years later, I remember a murder investigation in the West Midlands that risked going off the rails because a suspect needed to be admitted to hospital under the MHA and the argument broke out about no (secure) beds being available. As with the IPCC investigation in to GMP, it took threats of legal action by the force to eventually cause a bed to be found. More recently, we saw the case in Devon of a sixteen year old girl being detained for two days which led to a senior officer tweeting about the situation in order to draw attention to the problem and media attention on the situation forced an outcome that was otherwise not likely.
These examples were all relating to police custody after arrest, however there have been occasional difficulties relating to section 136 detention and admission from police custody. In the MS v UK (2012) case, the 72hr time limit within which to conclude arrangements for treatment were not adhered to, again because of arguments about a secure service bed. In that case, the European Court ruled there was an Article 3 violation because of the patient’s “dire need” of psychiatric treatment. If we are about to see the timescale for s136 MHA assessment reduced from 72hrs to 24hrs, it seems only likely that there will be more cases in the future where we cannot arrange a patient’s admission within the timescales.
I’ve been repeatedly asked in the last few weeks what should happen if the 24hrs limit is reached and no application has been made? – that answer is really, really easy: you have to decide whether to release a person in to the street, knowing they are so unwell they require compulsory admission to hospital; OR you unlawfully detain them pending the identification of a bed. There is no easy, ideal and lawful option available to you. You must decide between the two things, whilst escalating to senior officers and senior health managers, citing the legal problems and demanding resolution as soon as possible. But this all comes back to he question of whether section 140 means what I think it means: that CCGs and LHBs should be specifying those hospitals which have arrangements for urgent admissions AND then ensuring they are operating in such a way that if an AMHP needs to make an application for admission in a hurry, they are not prevented from doing so whilst exhaustive and protracted searches occur for beds. Whatever it is that section 140 means, the way in which it and all the other sections of the MHA are given effect, MUST then ensure that the human rights of patients are protected. No public authority may act otherwise and they cannot defend the situation by arguing that they don’t really have the money to do it any differently.
I want to see those with authority to oversee the commissioning of services by CCGs and LHBs to examine this more closely than they have done before: NHS England and the NHS in Wales seem to have roles to play here.
Winner of the President’s Medal from
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award.