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 –
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 –
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
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