This is one of those posts Iâ€™ve done before but Iâ€™m now writing again in a different way because it just keeps on happening. Â In the last weeks and months Iâ€™ve heard police officers say countless times that someone had become â€˜sectionedâ€™ when they absolutely had not! Â Hardly a grave matter, except where this misunderstanding is then the basis for what are sometimes protracted, illegal detentions in custody â€”
So what happens if you reach the 24hr or 72hr time limits and there is no application for admission? Â Well, strictly speaking, you must restore the detainees and a failure to do so gets you directly into Article 5 ECHR territory â€“ detained quite arbitrarily in a process not prescribed by law. Â Of course, even within legal timescales for detention, there could be other ECHR issues â€“ as we saw in the Article 3 case, MS v UKÂ (2012).
AN INVIDIOUS DECISION
So do you release a vulnerable person who is, by definition an obvious risk to themselves or others, or do you keep them detained pending the eventual making of an application? Â Well, the situation should not come about in the first place. Â So there are two things to say â€”
1. What should have happened?
Clinical Commissioning Groups are responsible for ensuring adequate health provision for their areas and this includes commissioning sufficient impatient beds for admissions to occur in a timely way. Â NHS England is responsible for commissioning more specialist beds like CAMHS and adult forensic services. Â Their duties to do so extend to having civil contingencies around the management of these important resources and section 140 makes it clear that CCGs have a legal duty to soecifiy hospitals that are in a position, from time to time, to receive patients in circumstances of special urgency and those designated to receive children. (Interesting that s140 doesnâ€™t mention NHS Englandâ€™s commissioning responsibilities.)
So old advice use to be: if you need to make an application and canâ€™t immediately find a bed, go to the list provided under s140 and take it from there. Â Unfortunately for us all, I found out when I made about three dozen Freedom of Information applications for CCG s140 lists that they had all failed in their duty to comply with this requirement. Â Section 140 was totally unmentioned by the MHA Code of Practice (2008) and by the accompanying Reference Guide but has now started to emerge, in the new Code (2015)Â andÂ in CQC MHA reports.Â
2. How do we manage this when it happens?
Firstly, flag up the potential for this situation to duty inspectors, the AMHP and the first-assessing DR as soon as it looks likely to occur. Point out the legal constraints to your ability to lawfully detain. Â Flag it up again when it actually occurs and ask for an application to be made or the invidious decision must be taken. Â Remind the AMHP and DR about the s13 criteria that determine that applications â€˜shallâ€™ be made and the duty of CCGs under s140. Â Document all of this.
You then have to decide! â€“ in circumstances not of your making, you become responsible but you need to know at this point about section 139 MHA. Â This section basically protects people from legal liability for any actions theyâ€™ve done â€œin pursuance of an objective under the Actâ€ as long as theyâ€™ve done it in good faith and with reasonable care. Â So if you start relentlessly challenging and escalating to senior police officers and health managers, you will have some wriggle room. Â Document all of this!
In one case back in 2004, Greater Manchester Police took their challenge on this issue to court, seeking a Judicial Review in the High Court of alleged failures by the AMHP / DR and wider NHS. Â Oddly enough, the found a bed quite quickly when legal action was about to start. Â Police officers have a positive duty to ensure the European Convention rights of those in their custody and we are very used, professionally speaking, to handling situations in which people break laws. Donâ€™t let yourself be fooled into viewing this situation as anything else, itâ€™s just that these laws are enforced in a different way, if they do need enforcing. Â Document all of this!!
Then! â€“ record this as a Health & Safety â€˜near missâ€™ and ask that it be referred to whichever oversight group reviews the joint police / mental health trust protocols and ask that CCG commissioners be invited to that review.
But remember this: no-one is â€˜sectionedâ€™ or liable to be detained until that AMHP makes that application to a hospital and any detention up to the point where that is done has to be justifiable under PACE or s136 and subject to the ECHR.Â
Hold The Line!Â