Can a police officer detain a person under s136 MHA if that person is already affected by mental health law in some way?
Imagine a police encounter where the officers are told by someone the person they have concerns about is on leave from hospital, with permission — or maybe living in the community under one form of restriction or condition? Can they use section 136 if they feel the grounds for it are satisfied?! Yes, absolutely they can – there is no doubt whatsoever about this but the post will explore why a straightforward-enough question can get complicated and will thrash out a bit of detail that may help to win any argument if officers encounter problems. Oddly enough, the inspiration for this was an officer who contacted me having encountered problems!
I can think of a couple of situations where very similar legal questions arise, in addition to the one highlighted by the officer, so it’s worth considering a few situations –
Nothing in law prevents police officers using s136 MHA if they think the grounds for doing so are satisfied and this remains true regardless of anything else. In each of the above scenarios, the law does provide a clear mechanism to allow the Responsible Clinician to instruct the return of a patient where concerns emerge. (Responsible Clinician, or RC, is the legal term under the MHA for the person, usually a psychiatrist, in charge of a patient’s care). So for example, leave granted by a psychiatrist under s17 MHA may be revoked by notice in writing and the person must then return to hospital or they will become AWOL under the Act. If concerns emerge about a CTO patient or perhaps where conditions of the CTO are breached, the psychiatrist in charge of their care may issue a recall notice – again, a bit like leave being revoked, this obliges the CTO patient to return to hospital at a specified time and failure to adhere to this requirement renders the patient AWOL. Where conditionally discharged patients are living in the community, the Ministry of Justice can issue a warrants under s42 MHA for their compulsory return to hospital. And of course, anyone who has absconded from hospital whilst detained under the MHA may be taken in custody and returned either to hospital or to court, depending from which section they are AWOL.
The obvious point to make about these things is: they all take a certain amount of time to disentangle and in their own right can become complicated. With 168 hours in a week there is a less than 1-in-4 chance that any RC will be available for an immediate decision. These methods of recall may be used where concerns are flagged by family members, by community mental health professionals who are worried about relapse or deterioration where it is thought best to return the person before their condition becomes so acute that someone’s safety is compromised. In principle, any officers dealing with an incident who think legal frameworks are in operation could just urgently contact mental health services for confirmation and push for them to be the decision-makers of what may need to happen under recall or revocation laws. But this bumps up against the most obvious practical reality of all – the need to act now.
Of course, a police officers’ use of section 136 is subject to the officer believing the need for the power is immediate – it may be known the patient is on a CTO, it may even be known attempts are being made to ask the responsible clinician to issue a recall notice. But where officers are called to a situation in a public place and feel they need to act immediately to keep someone safe, nothing should prevent them from taking necessary steps – and nothing does. Actually, in the case of CTO patients, use of s136 merely affords decision-makers the same amount of time in which to make the right decision about what to do next. CTO patients, when recalled to hospital, are there for 72hrs, just like s136 detainees under current law. And of course, if RCs want to take their own decisions about a patient, they obviously welcome to respond to 999 calls to the police about people in distress.
It’s therefore important to emphasise: nothing prevents a Place of Safety receiving someone detained by the police under s136 who is subject to these other frameworks. It may well mean that the AMHP who is then contacted about the detention starts other conversations with existing care teams rather than conducting an entirely fresh-assessment, but that’s a matter for them to untangle. In the case of patients who are AWOL having left without authorised leave, it may appear more obvious that s18 MHA should be used to return them – but even then, it can be complicated. Which section were they absent from? – on which day does the s18 power of redetention expire?! Unless you know the answer to both questions, we can’t be certain someone is, in fact, still AWOL.
Do you remember the nightmare scenario I wrote about last year – the Scottish CTO patient who had travelled to Nottingham and been encountered by local police whilst unwell and in distress? In order to quickly resolve the incredibly complicated, impenetrable legal quandary about whether English officers could detain a Scottish CTO patient encountered in England under the well-known(!) Consequential Provisions Orders that I’m sure you’re all familiar with … the answer was to use s136 because it was becoming to silly for words. It can be difficult at operational incidents to achieve certainty about MHA legalities – the Nottingham incident showed that Doctors were unavailable at short notice and themselves unclear as to legalities. It forced the police to make their own decision using laws available to them.
History shows – and I’m sorry to have to say this – police officers would be wise to question what they are told by word of mouth when it comes to legal situations. More than once in my career I’ve been told by mental health professionals that I or my officers have powers which, in reality, we didn’t have. As an aside, I’m not the only one who was surprised to learn how little legal training mental health nurses and psychiatrists receive in their training – in some cases it’s almost none! So from my own point of view, verbal information from anyone about someone’s current status under mental health law is just uncorroborated information that I may bear in mind, until otherwise proven. If there’s time to check it out and let more appropriate people take decisions about patient welfare, then that’s obviously the preference.
But what we shouldn’t have, is a system which, to the extent that it does, relies upon the police as a de facto crisis service, only to prevent the officers from taking good faith decisions to keep someone safe or to make things more difficult for them and the patient where they do. The reason for this post is not just one example raised in a question by an officer, it’s a situation I’ve been asked about a few times and I’ve personally encountered it a couple of times. Detention under s136 of patients already subject to the Act should still lead to removal to a Place of Safety and the necessary legal untangling. If we remember what s136(2) MHA tells us about the purpose of this power, it is to allow “examination by a registered medical practitioner and to be interviewed by an Approved Mental Health Professional and of making any necessary arrangements for his treatment or care.” This can include the untangling of legalities around known patients who got in to distress or difficulty whilst in the community, liable to certain aspects of the Mental Health Act.
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