I’ve often wondered if the Codes of Practice to the Mental Health Act 1983 are the least read documents in all of what I’ve spent time blogging about.  I say “codes” (plural) because there are separate documents for England (2015) and for Wales (2016) and for those who don’t know, a Code of Practice is statutory guidance issued by a Secretary of State or Welsh Minister to offer guidance about the law should be applied or interpreted.

Here’s my main point now I’ve specified the years of most recent publication: the law changed in 2017 and yet the Codes remain the same!

In each of them, chapters 16/17 as well as 27/28 relate to the issues which affect the use of various police powers and reliance upon the police.  The fact the law changed in 2017 renders many aspects of these chapters redundant.  And yet here we are, seven or eight years after last update and almost five years since the law was changed and yet the Codes remain unaltered.

There are a few issues, arising –

• There are some simple enough issues: s135/136 detention can now only last 24hrs instead of 72hrs, so any reference in chapters 16 to timescale, just needs rethinking and that’s not too hard to handle.  It can be extended to 36hrs in some circumstances and the concept of extension was new in 2017 – so perhaps it’s not simple enough, after all?!
• There are some more complex issues now unresolved: the two Codes said (or implied) different legal views on an issue I previously blogged about – I won’t bore you with the difference, you can read the post if you’re interested.  Suffice to say: as the law was about to change, the English Department of Health and the Welsh Assembly Government Department of Health agreed informal guidance on the matter, potentially resolving the difference.  However, because it was ultimately just informal, interim guidance until the Codes were revised (and therefore, it has a lesser legal significance because it’s not statutory guidance) and until full revision, that discrepency remains – detail in the above-linked blog.  I know it affects ongoing interpretation of the law in the two countries because a police force informed me that their local NHS partners were unconvinced by the WAG approved guidance and will be sticking to the Code (even though WAG seem to have accepted the difficulty with the content of the Code)?
• There are some new complex issues going unmentioned: the 2017 laws introduced a requirement to consult healthcare professionals where practicable, prior to use of s136 MHA – that is obviously unmentioned in the Codes at all and consequently, there has been much debate about what the nature, content and status of this consultation is – what content should the discussion involve, ultimately whose decision prevails if the nurse and officer disagree, etc.?  The law also introduced a new power of search for those of us who are removed to a Place of Safety under sections 135 or 136 … these search powers remain unmentioned by the Codes and dispute does in fact exist over how the law should be interpreted.  Perhaps this is why some MH staff have misunderstood that the new power to search is not a blanket power (that would be unlawful) – it is a power subject to conditions and they are for the police to be satisfied they apply, because it’s a police power to search.

SEARCHING

I will use searching as a detailed example, because the legal amendment made it unnecessarily appear complicated – which is a good argument for having a Code that makes it clear!  Where officers have detained someone under s136 MHA, a power of search is available in principle under s32 PACE – to find and seize items which may be used to cause harm (to the person detained or anyone else) or to prevent escape.  This power can only be exercised shortly after “arrest” and where there are reasonable grounds to believe, the items will be found (“belief”, in law, is reasonably high threshold.  Searching was always made more complex to comprehend because of the obvious question about whether s136 MHA is an “arrest” (it is – although it’s not an “arrest for an offence”); but now there is a different statutory power to consider – section 136C MHA, introduced in 2017.  This allows searching of someone shortly after detention under s135 MHA; and searching of anyone removed to a Place of Safety after use of s135 or s136.  Again, the new power is subject to whether there are reasonable grounds to believe relevant items will be found (for causing harm / escape) and this 136C power is exerciseable at any point after arrival at (or transfer to) a Place of Safety.

All clear?! … there may be test at the end of the post! You might imagine the Code would include a short section in a new version of chapter 16 about searching, to assist NHS staff and officers in undertaking these considerations.  It might look something like this –

• At the point of detention, where reasonable grounds to believe exist, a person detained under s135 MHA may be searched by officers immediately after detention (under s136C) for any relevant item (that may cause injury or assist escape).
• Where grounds exist, anyone detained under s136 MHA for removal to a Place of Safety may be searched immediately after detention under s32 PACE for any relevant item.
• Following arrival at a Place of Safety, someone detained under either power may be searched for relevant items under s136C if grounds exist to believe relevant items will be found.
• There is no power to conduct a routine, or blanket search in any of these situations – all searches are subject to relevant criteria being met, that relevant items will be found and each search must be justified as reasonable and proportionate on its own terms.

Or something similar.

The Mental Health Act 1983 was formally review by Professor Sir Simon Wessely in 2018 and a White Paper published by the government, proposing change.  Depending on the politics of it all, there may be formal amendment to the MHA in 2023/24 … it will be later than that, if the history of amending mental health law is anything to go by.  I therefore wonder, whether maintaining the Codes have been kicked off in to longer grass, because of this?  Speculation on my part, but the searching example, above is just one area to highlight.  The other is the one I blogged about before because it has remained an issue operationally and in policy.  I would anticipate both issues will keep rearing their heads unless or until the Code is updated later in the decade.  I could have picked other issues, as my examples.

If the Mental Health Act is to be updated, it means a new Mental Health Bill will be required, it will need to make its way through the parliamentary process and then a commencement date set.  When we remember that the Mental Capacity (Amendment) Act 2019 received Royal Assent three years ago and is yet to come in to effect three years later, I submit it’s reasonable to wonder whether any MHA amendment will occur prior to 2025?  Given the ongoing problems in inter-agency working as resources are contested against demand; given the lack of training often provided on MHA / MCA matters and their interface with police / criminal law, I would like to see a new Code – I thought there should have been one in 2018, just after the law changed.  If we are likely to see another 3yrs or more go by without the MHA reform proposed, how hard would it be to revise both codes for clarity’s sake?

And what surprises me the most, is the CQC reviewed implementation of the Code of Practice in England in 2020, and this point doesn’t appear to have been raised.

Winner of the President’s Medal,
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award

All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2022

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