A primary function of the AMHP role is the protection of the liberty interests of the individual. It is in tension with our duty to ensure the safety of those individuals and that of the public, alongside the promotion of their wellbeing.
I have mapped out my thinking regarding two related issues which straddle this tension, to seek people's views. Both involve the nature of the relationship of Sec.136 Mental Health Act to the requirements of Article 5 of the Human Rights Act 1998, relating to the right to liberty, and demonstrate the complexity of our work having to take regard of the interface between domestic law and the requirements of the HRA.
The first follows from an interesting debate which has recently arisen amongst the AMHPs in my local authority, stemming from the bed crisis which is nationally affecting us all: the question of whether it is proper, or even lawful, to continue to detain someone under Sec.136 when they are able to consent to, or lacking capacity do not object to, hospital admission, but a bed is not currently available.
Some of our AMHPs, concerned about inordinate waiting times, which can exceed twenty-four hours, combined with the possibility that the person may change their mind, believe it is proper to do so. Others are passionately against the practice. This is issue A.
The second, Issue B, arises from a concern I have had for some time about the compatibility of the direction in the Code of Practice, at para.16.51 with Article 5, where a person is concluded by a doctor to ‘have a mental disorder’ and therefore has to be seen by an AMHP before they can be released from detention under Sec.136.
Having looked at the statute and relevant aspects of the Code of Practice, it appears clear to me that domestic law provides a framework to authorise the continued detention of someone who is consenting to informal admission.
In brief, Sec.136(2) permits the continued detention of a person taken to a place of safety for up to 72 hours to enable 'him' to be examined by a registered medical practitioner, to be interviewed by an AMHP and, importantly for our purposes: ‘of making any necessary arrangements for his treatment or care’, i.e. the finding and subsequent offer of a bed.
Although the use of the term 'may' (be detained) permits the ending of detention prior to the statutory limit of ‘not exceeding 72 hours’, the Code of Practice guides (at para.16.50) that detention ends as soon as ‘suitable arrangements have been made’. If a bed is not available it cannot be offered and suitable arrangements are in the process of being made, rather than ‘have been made’. Consequently the authority to detain remains in place.
However, having thought about this matter further, it occurred to me that my colleague’s passionate objection might find grounds in the question as to whether domestic law meets the requirements of the Human Rights Act 1998 and the injunction for the prevention of arbitrary detention following from Article 5. My examination of this question led me to the position that the continued use of detention can in fact be lawful, but in circumstances narrower than I had first thought.
My starting point was the fact that all public authorities are required to act in accordance with the Convention, within the scope provided by the primary legislation (Sec.6, HRA 1998) and to have regard to European jurisprudence (Sec.2, HRA 1998).
Importantly, this includes, in Stanev v Bulgaria (2012), the fact that the European Court of Human Rights considered ‘the detention of an individual is such a serious measure that it is only justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interests which might require that the person concerned be detained. That means that it does not suffice that the deprivation of liberty is in conformity with national law; it must also be necessary in the circumstances.’ (para.143, my emphasis).
Additionally, for persons detained on the ground of ‘unsoundness of mind’ (Article 5 (1)(e)) their continued detention must accord with the Winterwerp (1979) ruling: whereby the person must be reliably shown to be of unsound mind by a medical expert; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of such continued confinement depends upon the persistence of such a disorder.
It is also the case that any interference with a person’s rights under the European Convention of Human Rights must be proportionate.
Finally, public authorities have a positive duty to take reasonable steps to prevent a deprivation of liberty in situations where they know, or ought to know, that a deprivation of liberty is taking place (Stork v Germany , para.102).
Therefore, where a person subject to Sec.136 has been examined by a doctor (or doctors) and has been interviewed by an AMHP, it would be reasonable to infer that the continued detention, for the making of suitable arrangements, would require that the person is found to be currently of unsound mind (see issue B below), the kind or degree of which warrants their continued detention and, irrespective of the provisions which may authorise the detention under domestic law, it, in addition, must be demonstrated to be necessary to continue that detention, in the person's or public's interests, and the measures taken must be seen to be proportionate to the ends for which the detention has proved to be necessary. This would include having explored all alternative options providing for less restriction. If these criteria were not met, following from one's positive duty under Article 5 (particularly as the AMHP has become party to the detention), action would be required to seek to end the detention.
I am not entirely clear how this should take place. As far as I can see no agent, per se, has a designated power to do this (other than a Custody Sergeant in a police station). Rather, the detention lapses at the point at which the suitable arrangements have been made. This, however, implies that someone has made the judgment that the arrangements have indeed been made and that they are suitable. Given that the doctor and the AMHP are charged with establishing the care and treatment needs and delineating what arrangements would be suitable to meet the identified need, it would imply that one or both would have a role. If this were the case (given that Sec.6 HRA 1998 restricts decisions in respect of article rights' to be within the scope of the primary legislation) then there would be scope to act, as the condition of termination is defined by the Code and not by statute: there would be a cogent reason for the decision maker(s) to depart from the Code as the situation was in violation of the person's Article 5 rights.
It follows from the above that the situations which permit continued detention are therefore circumscribed. The evidence must establish unsoundness of mind of a kind or degree warranting continuation of the nature of the compulsory confinement proposed (Re PS (an adult)  para. 23 (ii)). This would mean that they are likely to meet the general grounds for detention under the Act – although, it may not be necessary nor warranted to be admitted to hospital under detention.
It is to be remembered that, exercising the principle of least restriction, it is within the AMHP’s discretion not to seek to make an application - the balance being tipped towards promoting the person's liberty interests (whether the intention is to return the person to the community or to await a hospital bed). The caveat to this is that if the person is to be admitted, then a lawful framework for their likely deprivation of liberty at hospital will need to be in place in advance of that admission.
The next step in the argument is to look at the important relationship between capacity to consent and deprivation of liberty. As this relationship has an equal, determinative, role in both issue A and B, I would like to pause at this point to introduce issue B.
This issue arises from a similar concern with regard to engagement of Article 5 and the risk of arbitrary detention. The Winterwerp criteria referred to above were re-affirmed in Varbanov v Bulgaria (2000). At para.47, it was clarified that in urgent cases the necessary opinion of a medical expert can be obtained immediately after a person's arrest. However, it was explicitly specified that ‘the assessment must be based on the actual state of mental health of the person concerned and not solely on past events’, i.e. the unsoundness of mind has to be both contemporary and persisting, rather than latent and potential (unless rapid decline is indicated).
This is underscored by the fact that, as we have already seen, to qualify for continued detention the unsoundness of mind must be of a kind or degree which warrants that detention. This has always appeared to me to be to be at odds with the requirement of para.16.51, of the Code of Practice, where a doctor alone sees the person first, concludes that compulsory admission to hospital is not necessary and establishes that they 'have' a mental disorder - i.e. they are known to suffer from, but are not currently manifesting signs or symptoms of that disorder - the person's detention is to continue until they can be seen by an AMHP. I have long felt that this contradiction was a cogent reason for departing from the Code of Practice and for the responsible doctor undertaking the examination to discharge the person from detention.
Although the initial duty would fall to the responsible doctor, where an AMHP has been informed that the person is not currently mentally disordered, the positive duty following from Article 5 would require them, at a minimum, to bring the doctor’s responsibility to their attention.
The role of capacity, consent and deprivation of liberty
It is important to remember that we are addressing concerns regarding the interface of the MHA 1983 with Sec.6 of the HRA 1998. Issues A and B turn on the engagement of Article 5 and therefore whether a deprivation of liberty is occurring in each situation. Capacity and consent, which have no role in criteria under the MHA 1983, take on significance at the interface of the two schemes as they play a role in defining whether a deprivation of liberty is likely to be occurring. Let's take these matters in turn.
Both issues A and B only arise if the person's situation can be considered to constitute a deprivation of their liberty. If the particular situation doesn't, then there is no conflict with the domestic guidance and it's authority remains. As we know, deprivation of liberty is a tricky beast. Most importantly it is an 'autonomous concept'. Although all deprivations of liberty are detentions, not all 'detentions' are deprivations of liberty (see Foka v Turkey (2008), para.75, where the ECtHR found no deprivation of liberty where a stay in a police station, lasting a few hours, did not go beyond the time strictly necessary to complete certain administrative functions).
The calibration of a 'detention' as to whether it amounts to a deprivation varies by the interplay of the 'Acid Test' and such factors as intensity e.g. whether coercion is involved (see Foka v Turkey 2008), and duration e.g. whether there is undue delay in the completion of process (see R(Sessay) v South London and Maudsley NHS Foundation Trust (2011)). I suspect, given the cautious approach advised by Baroness Hale in the Cheshire West ruling, the need to err on the side of caution would lead us to construe those subject to Sec.136 as deprived of their liberty - particularly as coercion is implied. With regard to duration, if the wait could be considered to be ‘negligible’ then, possibly, it is likely that no breach would occur.
The exception to the above, in both issues A and B, will be where the person is able to consent to remaining in the Sec.136 suite and does so. This follows from the fact that the subjective element of the test for a deprivation of liberty has not been met. Care, of course, would have to be taken about the information provided to ensure the person's understanding of what it means to remain until suitable arrangements can be made, or to agree to be seen by an AMHP. However, if this is the case, there would be no conflict with Article 5 and the authority for detention under s136 would continue.
The issue of capacity and its relationship to determining whether the situation is a deprivation of liberty is therefore important. As far as I can see:
A) people awaiting suitable arrangements to be made, whether going into hospital or back to the community, the situation will be determined as follows:
(i) People who can consent to remaining, and do so, are not deprived of their liberty. There is therefore no conflict with the provisions of Article 5, and they remain subject to detention under s136. The detention will end when it has been decided that suitable arrangements are in place.
(ii) People who can consent to remaining and object, or who are found to lack such capacity, weather compliant or objecting, are likely to be derived of their liberty. Continued detention must be shown to be both necessary and proportionate with respect to the person's or public's interests, following the scheme discussed above.
B) For those who have been seen by a doctor and are not currently of 'unsound mind', the situation will be determined as follows:
(i) People who can consent to remaining, and do so, are not deprived of their liberty. Therefore no conflict with the provisions of Article 5 arise, and they remain subject to detention under s136. The detention will end when it has been decided that suitable arrangements are in place.
(ii) In all other situations they will be subject to a deprivation of their liberty, which would conflict with Article 5 rights as the ground of being currently of ‘unsound mind’ is not met – one’s positive duty to prevent arbitrary detention would then have to be considered.
Therefore, for all those involved with a person detained under Sec.136, in order to promote their liberty interests, the above can be distilled down to the need to ask the question: is the person deprived of their liberty? If so: is it necessary and proportionate, by establishing unsoundness of mind of a nature or degree, considering the person’s interests and that of the public, to continue their detention? Finally, following from the positive duty under Article 5, are there grounds for departing from the Code of Practice to end the detention under Sec.136?