Tuesday, 10 January 2017

The Policing and Crime Act 2017 – Implications for the Mental Health Act and AMHPs

The Policing and Crime Bill is likely to become law in April 2017. So what, you may ask? This is surely about policing and crime. What does it have to do with the Mental Health Act?

Well, it’s true that this new piece of legislation covers a wide range of matters, including police complaints procedures, the Police and Criminal Evidence Act, and Maritime enforcement, but it is also concerned with changes to police powers, and this is where there are significant implications for AMHPs (and the police, of course).

For the second time in 3 years, the Mental Health Act 1983 will have some significant amendments. The last time this happened was with the Care Act 2014, which among other things, amended Sec.117. Now, Sections 81-84 of the Police and Crime Act will significantly amend Sec.135 and Sec.136 MHA, which of course relate to police powers relating to people with mental disorders.

Reduction of period of detention
One of the most significant changes is to reduce the period of detention of people under both Sec.135, which is concerned with entering the premises of mentally disordered people in order to be assessed and removed to a place of safety, and Sec.136, which is concerned with police powers to remove people from public places.

Ever since the Mental Health Act 1983 came into force 32 years ago, the maximum period of detention has been 72 hours. This will be cut to 24 hours. In exceptional circumstances a medical practitioner can extend this by another 12 hours to a maximum of 36 hours. But that’s it.

This seems likely to create significant problems for mental health services who, despite Theresa May’s recent promises to improve services for people with mental health problems, are grossly underfunded, and likely to remain so, whatever the Prime Minister says.

It has become a not uncommon situation for there to be considerable delays in finding a bed for a patient who has been assessed under Sec.136. While it has always been exceptional for Sec.136 to last the maximum allowed time of 72 hours, it’s far from unknown for a Sec.136 to last for more than 24 hours, especially if there has been a delay in assessment, for instance because a patient was unfit for interview through drink or drugs, or if a patient was detained out of normal working hours.

What will happen if a bed has still not been found after 24 hours? Mental Health Trusts are simply going to have to ensure that sufficient beds are available.

“Public places” and “places of safety”
There are also some intriguing changes and clarifications to the existing MHA. For example, under the amended Sec.136, a police officer may “if the person is already at a place of safety within the meaning of that section, keep the person at that place”.

The new amendments also clarify the meaning of “public place” for the purposes of the Mental Health Act. While it does not exactly define what a public place is, it specifies that a police officer can exercise their powers under Sec.136 “at any place”, the explicit exceptions being “any house, flat or room where that person, or any other person, is living,” or “any yard, garden, garage or outhouse that is used in connection with the house, flat or room, other than one that is also used in connection with one or more other houses, flats or rooms.”

This might mean that there will be fewer arguments about what may constitute a public place, since powers will essentially be able to be exercised “at any place”. However, it also leaves the question of what constitutes a “place of safety” rather vague.

It would appear that someone could be detained in an A&E department of a hospital, or in a care home, for example, and the police officer can then keep them there in order to be assessed, as these might constitute places of safety.

Children detained under Sec.136
The Policing and Crime Act inserts a new Sec.136A, which principally states that “a child may not… be removed to, kept at or taken to a place of safety that is a police station.”

It would therefore not only be extremely undesirable for a child under the age of 18 to be detained in a police station, but actually illegal.

This is a logical development of the longstanding intention that nobody detained under Sec.136 should be detained in police cells, and most places now have sufficient designated Sec.136 suites to make it extremely unlikely for anyone, adult or child, to be detained elsewhere.

The most recent statistics for use of Sec.136, taken from Uses of the Mental Health Act: Annual Statistics, 2015/16 (November 2016), show a drastic reduction in the use of police cells. Let’s hope a consequence is that police cells are never used for anyone detained under Sec.136 in future.

Police consultation before using Sec.136
One final interesting amendment is that before exercising powers under Sec.136 a police officer “if it is practicable to do so” must consult a doctor, a registered nurse, an AMHP, or “a person of a description specified in regulations made by the Secretary of State” whoever that may be.

It is difficult to see quite how “practicable” this consultation might be, since a police officer may be dealing with a very fraught crisis situation with a mentally disordered person in a very public place, such as a town centre or a multi storey car park, and may have to take drastic action immediately to prevent serious harm.

Many police forces now have some sort of triaging process, for instance, having a mental health nurse physically based in a police control room, so it may be not be totally impracticable to gain instant advice, but it is likely to be a lot more difficult to get into contact with a doctor or AMHP within an acceptable time scale.

As these changes are almost certainly going to be in force within 3 months, mental health services are going to have to have robust contingency plans in place pretty quickly.