Wednesday, 6 July 2016

The meaning and implications of “legal custody” when applied to the Mental Health Act

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.


  1. Wonder what the Mental Health Cop's take on this might be? Legal powers to do something are one thing, whether it is the right thing another. Perhaps waiting for the specialist resource that eventually supported the transfer was the best course of action? Perhaps even this should have been considered as the first step?

  2. 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.”

    It sounds as if this patient was being passively resistant rather than violent or dangerous.

    The patient was also in a care home, and therefore likely (though not necessarily) elderly and frail?

    Ambulance staff are not normally trained in restraint and police methods of ensuring compliance may well not be appropriate for the passively resistant possibly elderly person. They are also unlikely to be proportionate. It is further not possible to safely convey a patient being actively restrained in a moving ambulance, quite apart from the dangers inherent in prolonged restraint. This is why police vehicles have small enclosed cages in which to transport prisoners.

    What I am saying is that the police and the ambulance staff may well have had the legal powers to do something, but it may well not have been a proportionate use of force, or safe, to use force.

    I can understand the AMHP's frustration, but really it is the responsibility of the mental health services to be providing staff trained in these situations and able to use appropriate methods of physical or chemical restraint whilst transporting in a vehicle suitable for the purpose.

    1. I'm underlining the legal powers that the police and ambulance crews have. In practice, they either do not know about these powers, or they choose not to exercise them, to the detriment of the patient. Since ambulance trusts have contracts with the CCG's to provide services, perhaps these services should include conveying disturbed patients detained under the MHA. When we have to use private PMA trained ambulance crews, the huge cost of these are paid for by the CCG's. But it's always an ad hoc situation, and can greatly extend the time taken to get a mentally distressed patient to a safe place. Is that right?

  3. The real question is why it was deemed so necessary to hospitalize the patient, even against his will, even though he had a place to live and was not violent, as he only resisted passively or verbally. If he was so determined not to go to hospital, the doctors, the AMHP, the police, ambulance personnel, hospital and care home staff and anybody else involved should have backed off.

    1. Thoroughly agree Monica although where are the nice facilities - I found out there was nowhere in the UK and was prepared to pay.

  4. I was with you most of the way, almost completely and right up unt the final sentence. The police, of course, were wrong to say they had no powers because they could have acted under s6 MHA with the AMHP's permission. The thing that is missing from s6 and this summary is that no-one is obliged to accept the AMHP's preference to delegate. The person is in the AMHP's legal custody until someone else agrees to take responsibility. i also agree with the previous comment that there is a difference between 'violent and dangerous' and someone who is resistant. There are two problems (at least) with the idea that Parliament intended for the police to always undertake these functions when directed:

    1) why authorise anyone other than the police if only the police were ever envisaged;
    2) why not enact as the Republic of Ireland do: the Garda must do as they are told.

    AMHP's and the organisations for which they work have positive legal duties under Health & Safety as well as human rights laws to ensure those matters are attended to and whilst there will always be a role for the police, there are real difficulties with the view that the police should always do this because they previously always did.

    1. One issue is that AMHP's and ambulance crews, even if they have the powers to restrain and use force, are often not trained to do this. The police, of course, are.

    2. I agree that police are trained to restrain however herein lies a problem. Police restraint is often reliant on pain compliance. Police are not as a matter of course taught restraint techniques that are more suitable for dealing with people suffering from mental ill health nor is there sufficient training or understanding of the implications of prolonged restraint. Prolonged restraint of people suffering from mental illness by police officers has, as I'm sure you are aware, resulted in the death of the person being restrained. I strongly believe that although police officers can lawfully restrain in the circumstances you have detailed, the police should only be asked to assist where the level of aggression or violence is such that it is the only way to protect both the individual and others. This was clearly not the case with this incident. In my opinion this is another example of the services responsible for looking after this (and many other) individual unable to cope with circumstances that cannot be unexpected and then relying on the police to step in.

    3. Agree with you Simon apart from the word "illness". They are usually trauma victims and should be treated appropriately not like criminals.

  5. would it be better of the no force was used because this person was old and frail sometimes having the police involved can make a situation more volatile considering police officers are their to uphold the law and not trained in restraint as mental health professionals are. Police officers i personally think in this situation should have step aside as they did and no restrained the elderly gentlemen causing him further harm and distress. So i agree the actions of the police were a correct one. I also feel that the police need to have more training on the different symptoms of mental distress a person can have and are showing in a crisis to be able to help them if a situation arises in their police cells when detaining a aggressive distress individual. Their are many situations in the past that have come to the forefront of people dying in police cells because of restraint and aggressive force. I also think partially the way the mental system in this country is poor and not accessible to all people in distress and the police have to pick up the pieces not only in mental health care but social care to. Often the police are blamed in this circumstances but its a wider failure of the systems in place to protect people in mental distress and are in crisis or are suicidal . The police are trained in dealing with aggressive people who have committed a crime/broken the law and sometimes have to restrained people to protect themselves from abuse and further injury to themselves or the police officer. The police are not trained in dealing with distress/emotional distress self harm drug and drink addiction due to having emotional distress. So often their the last call in helping and supporting vulnerable people who are threatening to kill themselves or how to deal with someone who is so distress as cutting their own arm because of the emotional distress their in instead their failed systemically by a system overrun and no beds for inpatient care or care in the community and staff under resourced and sometimes staff who have lack of understanding to the person in crisis.
    So i think if the police are their only in incidents if a person has been violent before or if their to protect the professionals and the person their detaining under a section 2/3/4 so their is protection on all sides if their situation is volatile and out of control and someone gets hurt.
    I think using No Force treating a patient with respect dignity and kindness will help much more than using aggressive force to a person in emotional distress which can add to their distress and make a person so much worse especially a frail elderly person or anybody else.

  6. The comment about police training is really a comment about the lack of LSSA and / or NHS trust training. By law, all public authorities - including LSSAs and NHS MH trusts - are *obliged* to examine the risks inherent in their operations and to take reasonable steps to mitigate foreseeable risks. To think that it isn't forseeable that someone people who being complelled to hopsital won't physically resist that and need to be subject to the use of reasonable force is fantasy land. It is, put quite simply, not the legal responsibility of the police to coerce everyone who needs coercing, just because another organisation or professional would rather they did. If you are getting yourself in to the professional business of coercing other human beings, I would respectfully suggest that the necessary preparation is made for the reality of that.

    The comment about training, is a comment about a lack of compliance with Health & Safety law in circumstances that could violate human rights of patients. As such, the short-coming here is with LSSAs and NHS trusts. << Everything said here, is based upon legal advice from Queen's Counsel. It just happens to coincide with the views I've offered for the last dozen years.

  7. I am an AMHP and have recently been working permanent nights (4 on 4 off) and doing lots of assessments. The legal position is fairly clear (though still reliant on the good will and cooperation of other services to accept the delegated task of conveying). The issue is often to do with goodwill though the understanding of the law and who can use force legally is sometimes lacking.
    In Liverpool our policy is (if memory) that ambulance should be the first option, second should be the police and third should be other options like an AMHP's own car or family.
    Over the last few weeks the Police in Merseyside have been saying they cannot get involved in the actual transporting (i.e. using their vehicles) as their insurance does not cover this (although this does vary from officer to officer). They can assist and accompany if a breach of the peace seems likely/occurs.
    The comment about police (or indeed anyone) restraining in emergency ambulances is well made - they are not environments in which it is safe to restrain someone - there are plenty of potential weapons for a start. The police vans with cages are the best option for the very agitated/resistive person as once in them hands on restraint is not (usually) needed.
    A number of police officers have recently suggested that we (I think they mean health and social services) should a system in place to convey including using force. I accept that mental health staff are probably better trained to do this restraint in a "therapeutic" way but this is not an option locally. We do not have staff available even during core hours - you would need teams of at least 3 I believe. We do now have a local MH NHS trust minibus with a driver that is available to convey but they need MH staff to go with them (even if the patient is quiet, settled and cooperative). More than once I have gone with them as - particularly out of hours - it can be hard to get anyone else.
    The local ambulance trust do convey "locally" though the quality of that experience can vary. Some crews insist the police be present in all circs.whereas others are much more flexible and helpful.
    We now (last 6 months or so) have a contract with a specialist transport provider for longer distance conveyance who can restrain and have trained escorts. I have only used them once and they had to travel 70 miles just to get here to pick the patient up which took 2 hours (though you can wait that long for an NHS ambulance for a local transfer).
    I do convey if I have the support and it seems safe to do so. I recently took a young woman about 5 miles from an A&E dept. with a member of staff (female) from the A&E dept. (medical side). The A&E dept. was quiet and the staff were quite helpful and friendly - not always the case. There are MH support workers in one of the local hospitals with an A&E (not the one just referred to) and if they are free then they will also help me convey or go in the NHS trust transport, ambulance or even with the police (as the police sometimes requested a MH trained escort - when they still took people).
    So, for long distance transfers there is now a system in place but for local transfers it is still a bit ad hoc and the response can vary between different personnel working for the same organisation. It would be great to have teams of specially trained staff who were available to come out and restrain people - particularly those who are older and frailer - where the aim is to do so in what might be seen as a therapeutic way. This would need to be properly planned for and resourced though it has to be recognised that they may well not be used at all for a day or two and then expected to be in 3 places at once the next. However, I feel the police would see it as a positive move and perhaps be more willing to help if this team were engaged elsewhere.

  8. My only, (second hand) experience of secure ambulances and staff is that they can be much worse than police. In (granted only once) experience they were happy to allow the patient to head bang continuously on an 40 minute journey and rip handcuffs off. They only engaged in threats to the patient, rather than trying to talk. Local protocol now is to use ambulance rather than police vehicle, but I think they are totally unsuitable. Certainly doesn't protect anyone's dignity being restrained by police in front of ambulance staff, then transported in handcuffs and restraints strapped to a stretcher.........A van would definitely be a lot safer for everyone.