Recently, when I was on duty triaging the county’s
requests for assessments under the Mental Health Act, one of my AMHP colleagues
was required to arrange for the conveyance to hospital of a patient who had
been detained under Sec.2 the previous evening. The conveyance had not taken
place then because the receiving hospital would not accept a patient late at
night.
Because of the general shortage of psychiatric beds for
all types and ages of mental health patients, it is now not unusual for an AMHP
to undertake an assessment with two doctors, decide that a patient needs to be
detained under the Mental Health Act, but be unable to complete their
application because of the lack of beds.
It then falls to another AMHP to have to conduct another
assessment sometimes many days later when a bed finally becomes available.
Even when a bed is identified, it is often not
practicable to arrange conveyance to hospital until the following day, which is
why it is increasingly the case for our AMHP service to have to send AMHP’s off
to complete the admission process on a patient they have not actually assessed
themselves.
But this is not the subject of this blog post.
This particular patient was resident in a care home. It
was known that the patient would be resistant to admission to hospital, so at
10:00 hrs my colleague arranged for the ambulance service and the police to
attend.
This should have been a fairly routine task: arrange for
transport, get the patient into the transport, and then send them on their way
to the receiving hospital, with the section papers accompanying them, and
return to base.
In the middle of the afternoon, and several hours after
my colleague had gone to the patient’s home, I received a plaintive call from
him.
After a considerable amount of cajoling and persuasion,
the patient had entered the ambulance, but was refusing to sit down and allow
themselves to be strapped in. The ambulance crew decided it was unsafe to
proceed unless the patient was secure.
The police were in attendance, but were refusing to
assist in the conveyance in any way, arguing that they had neither the power
nor the duty to do so.
Eventually, both the ambulance and the police left,
leaving the patient at the care home. It was then decided that the AMHP would
arrange for a private ambulance service, with a crew trained to physically
restrain patients, to attend. By now, it was after 17:00 hrs.
But this ambulance was based 80 miles away, and it was
estimated they would take at least 2-3 hours to arrive. The responsibility for
conveyance was transferred to the out-of-hours service, and the weary and
frustrated AMHP left the paperwork with the care home. In the end, this ambulance
did not arrive until after 23:00 hrs, and it was after midnight before the
patient was finally admitted to hospital.
So what exactly are the legal implications of detaining a
patient under the MHA, whether it be Sec.2, Sec.3, or Sec.4?
The act of completing an application for detention
instantly confers powers on the AMHP and others.
Sec.6(1) MHA states: “An application for the admission of
a patient to a hospital under this Part of this Act, duly completed in
accordance with the provisions of this Part of this Act, shall be sufficient
authority for the applicant, or any person authorised by the applicant, to take
the patient and convey him to the hospital.”
Richard Jones, in The Mental Health Act Manual, 18th Ed.,
observes:
“If, following an assessment of the patient, the
potential applicant and recommending doctor(s) agree that an application to
detain the patient should be made, the common law provides authority to use
restraint on the patient during the time that it takes to process the
application as long as the process is not unduly delayed.”(1-104)
He goes on to say: ““The power to convey is only
triggered when the application is “duly completed”. This does mean that, until
all the forms have been filled in and signed, if the patient insists that the
assessing team should leave, they have no choice but to do so, unless “one
co-owner gave them permission to stay”.
However, once the patient is “liable to be detained”,
Sec.6 MHA and all its implications, applies. This includes the powers under
Sec.137 and Sec.138 MHA.
(I’ve explored the meanings of the terms “detained” and
“liable to be detained” within the meaning of the MHA on this blog before. You
can find it here.)
Sec.137 MHA unequivocally states:
“(1) Any person required or authorised by or by virtue of
this Act to be conveyed to any place or to be kept in custody or detained in a
place of safety… shall, while being so conveyed, detained or kept, as the case
may be, be deemed to be in legal custody.
(2) A constable or any other person required or
authorised by or by virtue of this Act to take any person into custody, or to
convey or detain any person shall, for the purposes of taking him into custody
or conveying or detaining him, have all the powers, authorities, protection and
privileges which a constable has within the area for which he acts as
constable.”
In relation to Sec.137(2), Jones notes that “either the
applicant or the person delegated to the applicant (including ambulance staff)
can use such force as is reasonably necessary to achieve the objective of
conveying the patient”
The Reference Guide explicitly notes that this includes “patients
being conveyed to hospital to be admitted on the basis of an application for
admission under part 2”(Para11.4) (ie, Sec.2, Sec.3 or Sec.4)
The Code of Practice adds:
“17.13 If the patient is likely to be unwilling to be
moved, the applicant will need to provide the people who are to transport the
patient (including any ambulance staff or police officers involved) with
authority to transport the patient. This will give them the legal power to
transport patients against their will, using reasonable force if necessary, and
to prevent them absconding en route.
17.14 If the patient’s behaviour is likely to be violent
or dangerous, the police should be asked to assist in accordance with locally
agreed arrangements.”
What the legislation and guidance states clearly is that:
- Once detained under Sec.2, Sec.3 or Sec.4, the MHA, a patient is deemed to be in “legal custody”
- This confers powers on the AMHP, the Police, or anyone authorised by the AMHP, to convey the patient to hospital, if necessary using reasonable force.
Jones elucidates these powers as follows:
“Power… which a
constable has. Which include the powers to arrest a person who is wilfully
obstructing him in the execution of his duties, to use reasonable force in
effecting an arrest, to prevent a person from escaping, to secure the
conveyance of the person, and to require other persons to assist him in the
execution of his duties.” ( 1-1343)
The Code of Practice also adds:
“People authorised by the applicant [the AMHP] to
transport patients act in their own right and not as the agent of the
applicant. They may act on their own initiative to restrain patients and
prevent them absconding, if absolutely necessary. “(17.18)
And here’s what the Reference Guide has to say:
“When someone who is deemed to be in legal custody as a result
of section 137 absconds, they can be returned by:
any police officer, or other constable
any approved mental health professional (AMHP) acting on
behalf of a local authority, or
by the person in whose custody they were when they
absconded.” (11.8)
So, to apply all this to the example I gave earlier, the
fact that this patient was detained under Sec.2 MHA meant that the AMHP, the
Police and the ambulance crew all had the power to take the patient to
hospital, using whatever force was reasonable in the process. And if the
patient were to abscond from legal custody, the police would have legal powers
to arrest and detain the patient.
But what about the Police & Criminal Evidence Act
1984? What about Sec.26 of this Act, which is concerned with the repeal of
statutory powers of arrest without warrant or order? Doesn’t that prevent
police from arresting and holding a mental health patient who is liable to be
detained?
Well no, it doesn’t. Because Sec.26(2) PACE states: “Nothing
in subsection (1) above affects the enactments specified in Schedule 2 to this
act.”
And what is in Schedule 2? This schedule is concerned
with preserved powers or arrest, and states that several sections of the Mental
Health Act, including Sec.18 and Sec.138, have police powers of arrest
preserved.
And Sec.138(1) MHA states: “If any person who is in legal
custody by virtue of section 137 above escapes, he may, subject to the
provisions of this section, be retaken— (a) in any case, by the person who had
his custody immediately before the escape, or by any constable or approved
mental health professional.”
The law is clear. The Police cannot claim that they have
no legal powers (or duties) to arrest, detain or convey a patient, once an
application under the MHA has been made. And they should assist an AMHP in the
discharge of their legal obligations under the Mental Health Act.
