When does detention under s135 or 136 end, once someone has been detained in a place of safety?! It’s actually easy to answer, just harder to put into practice.
It ends when one of three things happens –
Easy, right?! Maybe.
It will get harder in the real world, when we start to see real circumstances intruding on this theory with a big load of “so what happens when ………” questions. First of all though, some technicalities about DRs – the Act itself requires that after removal to a place of safety, the person is assessed by a ‘registered medical practitioner’. This means it as ultimately acceptable for any doctor to assess the person, whether they are the country’s most eminent psychiatrist or a newly qualified AND registered doctor working in an Accident and Emergency Department, for example. However, the Code of Practice to the Mental Health Act states that ‘wherever possible’ the Doctor should be section 12 approved, which means they have particular experience of treating patients with a mental disorder. If a section 12 DR is not used, the reasons for doing so, must be recorded. There are a few situations in which this conflict between the ideal of section 12 approval can push up against other doctors becoming involved in the assessment.
The most obvious implications of the first two issues, is that the non-s12 Doctors could get it wrong, not being specialists. Obviously, a head injury may exist comorbidly with a mental disorder, so our FME may have viewed something as either / or, when in fact the patient was injured and in distress. The same could have been true for our A&E doctor who leaned towards an assessment of diabetes – no reason why he couldn’t also have depression or another psychiatric condition. In the third situation, the obvious implication and concern for the police will be an expectation that they will remain for hours or even for days, pending the acute medical situation allowing for an AMHP / s12 DR assessment of mental disorder. On the one hand, the case of Webley reminds us that until the NHS are agreeing to take over responsibility for detention and conclusion of the process, the police continue to bear a duty; but on the other hand we have to be sensible about the ability of some patients to abscond. I recall a s136 detention where A&E staff artificially induced a coma in a patient exhibiting disturbed behaviour. Why would the police need to remain in hospital with a man who is unconscious?! … or with a man who can’t walk because of a broken ankle? Well, maybe the broken ankle patient is still willing to be violent towards staff, notwithstanding that he can’t run away?
All cases on their merits, by both police and NHS, surely?!
As with everything, each cases comes back to individual circumstances, discussion with partners and appreciation of each other’s position. There’s no obvious reason why a hospital should insist upon police remaining on an acute hospital when a patient is unconscious – let’s be sensible! Equally, police officers need to remember that A&E and acute hospitals are not set up and were never asked to be areas of legal detention for those subjected to the Mental Health Act. Where it may not be safe to walk away from a situation and in the absence of being able to negotiate a handover that is agreed as safe – a new requirement of the 2015 Code of Practice, in paragraph 16.34 – the police need to be aware that the law of negligence would find them wanting, if they did leave and harm came to the individual in predictable circumstances.
But whatever situation you’re wrestling with, it comes back to three things –
If the answer to any of them is “Yes”, then s136 has legally ended; if the answer is “No”, then it is still running.
** This post is a republication from 2016, edited only to reflected changes in legislation since the original post and renamed to make it easier to search on the site.
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
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