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. We now know the changes will take place on 11th December 2017.
This week has been full of phone calls, emails and questions – mainly about how officers should consider the choice they have to make about which Place of Safety to use after they’ve initiated someone’s detention under s136 MHA. In particular, many of this week’s questions have been connected to the role Emergency Departments have to play, not least because one ED in England, whilst in discussion on these matters with their local police force, asked that I be made to stop tweeting things(!) they disagreed with about the legalities of s136 and choices about Places of Safety – yes, really!
The irony being, I had done nothing more than tweet a screenshot of the Government guidance on the Mental Health Act amendments, jointly issued by the Department of Health and the Home Office, with which they happen to disagree. Paragraph 4.4 of the guidance states, “If a person subject to section 135 or 136 is taken first to an Emergency Department of a hospital for treatment of an illness or injury (before being removed to another place of safety) the detention period begins at the point when the person arrived at the Emergency Department (because a hospital is a place of safety).” The bold is my emphasis, because this message doesn’t seem to be getting through! I didn’t write this stuff or make it up … I’m only hoping to explain it so police officers know how to discharge their duty of care and so that patients know their rights whilst detained by the police.
It seems the disagreements about these points comes from different bits of legal advice that people have sought from trust solicitors, etc., etc.. I’m not sure we need to inform the press that multiple lawyers representing different people Andy organisations with different vested interests at stake don’t always agree with each other. It’s hardly a shock to anyone, is it?!
Let’s revisit the very basics, but in the context of these new laws. The definition of a Place of Safety under the MHA is contained in s135(6) and it has not been radically overhauled for December. As with the previous definition, absolutely anywhere can function as a place of safety under the MHA, subject to some criteria, but the traditional three options have always been and will no doubt remain –
NB – I have always listed them in this order, not because ED should be the main choice for most people – it should not. But it should be the first question police officers ask themselves after detention: “Does this person, now they are in my care, require urgent ED treatment or assessment for any reason? if so, go thee; if not, go to your locally identified PoS facility, probably in a mental health unit.”
The Act itself, continues to list “residential accommodation provided by the local social services authority” as a Place of Safety: I’m not aware of that ever being a preferred option in any area, or of it being used at all. The three traditional options tend to be those which are specified in the local Place of Safety protocol, but the Act has also always said something that allows improvisation through problematic situations: what used to be “anywhere temporarily willing to receive the person” is now “any other suitable place”. We now have a whole new sub-section to help us understand the rules for using another ‘suitable place’. History has seen private homes, GP surgeries, third-sector organisations and even a maternity unit(!) being used as a Place of Safety, all for specific and particular reasons.
Section 135(7) now explains that what must be considered if we are to rely upon “any other suitable place'”. If it is proposed to use a “house, flat or room” as a Place of Safety, it must involve the agreement of the person detained and they live with others or are being taken to someone else’s home, it must also involve the agreement of another person who lives there. If the non-hospital, non-police station option is being pursued and it is not a “house, flat or room”, permission must be secured from the controller of the premises that it can be used for that purpose. It should be noted though, especially by anyone who is entering discussions about Emergency Departments, s135(7) is a discussion about ‘any other suitable place’ only – it is not a discussion about residential accommodation, hospitals or police stations. At the risk of being a stuck record, paragraph 4.4 of the guidance reminds us “a hospital is a place of safety”.
All areas should update their local s136 policy to reflect the legal changes and agree how pathways will operate after 11th December. Particular care and attention may need to be given to the circumstances in which officers consider the ‘any other suitable place’ option. The extent to which this may need to be considered in the real world may depend upon the capacity of local arrangements and the extent of preparation areas have gone through.
Recently, an area contacted me for advice because with three weeks to go, their NHS did not have an answer for where children should be taken under the section 136. Another contact this week to say they were making more detentions than their NHS can cope with and relying on custody – what was the drill for 11th December if the MH unit are unable to accept someone because they are full and ED are insisting that they “are not a Place of Safety”. Well first piece of advice, is not to enter in to pointless legal arguments with EDs about whether they are or are not … there is no definitive way to resolve that, an arguing legalities with Doctors and NHS managers is as pointless as arguing pharmacology with lawyers. It doesn’t actually matter whether they are or whether they’re not, it doesn’t actually matter what they think they are in law. This is quite an arrogant statement, isn’t it?! Bear with me …
What I mean by this is – as anywhere can be a Place of Safety, nothing at all in any situation whatsoever prevents a police officer removing someone to an ED and asking for help. Whether this is because the person has taken an overdose or whether it’s because there is simply no other open, accessible place for them, is neither here nor there: the request by the police for help is lawful. How ED respond is a matter for them, but it is a decision taken on the record and capable of review in subsequent inquiries, Coronial or otherwise. If an officer in area X has detained a man from area Y which is hundreds of miles away, and the MH PoS is full and the (new) legal criteria for using a police station are nowhere near satisfied, it may be there is no other way to try to get him somewhere safe and warm pending decisions about his welfare. Nothing would prevent the police asking the MH Unit or ED to improvise to help in that situation: the MH could agree to allow the man on to a ward and temporarily use an other area of the hospital as PoS (dayroom, unoccupied office, etc.) or ED could agree to help. As long as they realise that refusal means the person will be sitting in a police car outside because there is literally nowhere else left to go that is lawful, the decision is theirs to take.
For the avoidance of doubt, s135(7) as it applies to dwellings (defined as a “house, flat or room”) and non-dwellings, means the following agreement(s) must be secured. Note that agreement implies something slightly different to ‘consent’, and this point is much discussed amongst the AMHPs on social media, for example in terms of whether someone, especially the person detained, may have the capacity to ‘agree’ or ‘consent’. Either way, if it were me contemplating this approach, I’d be doing PNC, intelligence and other checks, if possible; I’d also be liaising where possible with the NHS liaison about the person / location and if possible with the AMHP who will have to undertake the assessment, to establish whether anything is know that would prevent that option being sensible. Remember, the AMHP has to be satisfied that they have interviewed the person in reasonably manner and the location of the interview may affect whether they are happy to proceed in that context.
Agreements required —
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