I’ve recently being doing some research on Preventing Future Death notices and putting together a list of notable examples around a few different themes. The notice from January 2020 after the death of Mr Thiago Araujo is especially interesting around the topic of s135 MHA assessments and it’s not the first notice in recent years to touch upon this. The Coroner lists a number of areas of concern but it’s numbers 4 and 5 which caught my attention – the acknowledgement that re-admission to hospital may be required and the process and requirements for an assessment under s135(1) Mental Health Act 1983.
Where someone is believed to be in a private premises is thought to need assessment for consideration of their admission to hospital, an Approved Mental Health Professional (AMHP) can make an application to a Magistrate for a warrant under s135(1) which then allows the police to force entry to the premises, if necessary, to allow for assessment. That assessment can either occur in the premises itself, if the person consents, or the police may remove the person to a Place of Safety where they can be held for up to 24hrs for assessment, just as if the police had used their powers under s136 MHA. When forcing entry to the premises under the 135 warrant, the police must, by law, be accompanied by an AMHP and a Doctor. As a separate point, where someone is assessed for admission to hospital, that assessment must be conducted by an AMHP and two doctors, one of whom must be “s12 approved”.
The coroner’s areas of concern in the case of Mr Araujo stated, that “by February 4th … the community team recognised an acute risk of suicide, faced with his non-compliance with community treatment they considered an admission to inpatient care.” He continues, “The community team indicated that a factor in their inaction was the knowledge that arranging a s135 warrant and assessment would take two weeks. Such an assessment requires actions by an approved mental health practitioner [sic] from the local authority, two s12 Mental Health Act approved doctors, the assistance of the Metropolitan Police and the local magistrates to secure a warrant. A delay in of 14 days in securing a mental health act assessment is unacceptable.”
I assume the Coroner is reporting and summarising what the agencies said about their local s135 procedure and not stating what the law requires. If so, he is quite right: it’s unacceptable and as a point of fact, legally wrong. The bare minimum requirement to execute a s135(1) warrant is a the warrant itself from a Magistrate executed by a police officer in the presence of an AMHP and any doctor (s12 approved or otherwise). And that’s it- such would be sufficient to make the entry and any detention which resulted lawful. Nothing else listed in the quote is a legal requirement – it may be a “nice-to-have” or a local policy practice or preference, but it’s not a legal requirement.
If you must act urgently, bearing in mind one issue of concern involved “acute risk of suicide”, then proceeding in this minimalist way could ensure removal to a Place of Safety where the agencies have 24hrs to put together the other aspects of the MHA assessment that may lead to admission in the relative safety of knowing a person is detained and supervised to mitigate that acute risk. You don’t have to go to the house with enough staff to fully assess under the MHA and “section” them to a hospital and if delay in marshalling those extra professionals allows the acknowledged risk to go unmanaged, it might be the process itself which needs examining.
Nothing at all in the Mental Health Act itself gives rise to this “two week” idea. In the real world, including one spontaneous incident I recall from my own experience, you can go from police turning up on scene to an unplanned crisis incident, to having removed someone to a Place of Safety within an hour or two. You may need a degree of good fortune in achieving that, but even if it took four hours, that’s still considerably faster than two weeks. It is, by definition, easier to arrange for police, AMHP and a doctor to gather after the AMHP secures the warrant, than to hold out for two doctors, both of whom being “s12 approved” – and of course, there is nothing in MHA admissions procedures that requires two s12 approved doctors. That is just flatly wrong, quite simply.
There have been a number of Coroner’s inquests touching upon s135 MHA processes, including where non-intervention or local policy has been connected to agencies’ perceptions of each other’s requirements or where such local policy / practice seems to insist upon more than the law demands. Of course, if you can get all the ducks in a row in a timescale relevant to the management of risk, fair enough – who wouldn’t want that? If you can’t, then with a warrant, an AMHP and a Doctor, the police can more-or-less treat the entry and detention as a use of s136 – you make the detention and safely remove the person to a Place of Safety for the rest of the process.
Thought experiment: is it worth protracting the known, acute risk to search for two doctors when you can proceed with one and when even the presence of two doctors may be utterly pointless because the patient could simply object to MHA assessment and you’ll then have to remove them to a Place of Safety anyway?!
The policy as law fallacy is something I’ve written about before. It never fails to surprise me that claims to ‘best practice’ or administrative preferences of agencies achieve greater important than the basic legal requirements. Intervention to mitigate risk of suicide or self-injury in some situations may only be possible through this one route: s135(1) warrants. As such, given real world circumstances may mean that intervention is needed fairly promptly, policy that demands two weeks is and local practice that insists upon more than the law requires can only possibly make more complicated that which is already complicated enough. And more than one person appears to have died as a consequence of this and the lessons are on open display to be learned.
Winner of the President’s Medal, the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions expressed are my own – they do not represent the views of any organisation. (c) Michael Brown OBE, 2021
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