An AMHP emailed me to ask “whether a person can still be
detained on a Sec.136 once they have been seen by an AMHP (without a doctor)
and assessed as not requiring detention”. A discussion followed, which raised a
number of questions concerning the AMHP’s powers of discharge, and whether or
not Sec.136 MHA might be in breach of the Human Rights Act in some
circumstances.
I think this is worth exploring in more detail, as it has
implications for the extent that an AMHP can exercise their legal powers and
duties.
The Reference Guide states that AMHPs must have “appropriate
competence in dealing with people who are suffering from mental disorder.”
(para30.8). These areas of competence consist of:
- application of knowledge of mental disorder, and the legal and policy framework
- application of skills in working in partnership, and making and communicating informed decisions
Some AMHPs are mental health nurses, whose basic training
and day to day experience will include identification of different mental
disorders and knowledge of medication used to treat mental disorder. However,
all AMHPs (and the majority are social workers) have an intensive period of
training, including practical work placements, to teach them the competencies
required to practice effectively.
This means that AMHPs are able to get a fairly clear idea
of whether or not a patient may be suffering from a mental disorder.
When an AMHP receives a request to assess a patient under
the Mental Health Act, they are acting autonomously, and will make their own
decisions about how, or even if, to conduct the assessment. It is not uncommon
for an AMHP to have a “look see” first, before deciding whether or not to
involve doctors.
I have often gone out with a member of the Crisis Team,
or the patient’s care coordinator, in order to make an initial assessment and
explore the “least restrictive option”, as we are required to do as AMHPs.
Alternatives to compulsory admission might include engaging with the Crisis
Team for home treatment, or informal admission.
If these alternatives are viable, then there is no need
to proceed further with the assessment. A formal assessment, involving two
doctors, would only take place if there appeared no other alternative.
As the AMHP has their “AMHP hat” on, they are acting
within their powers and duties under the MHA, and that initial assessment, in
my view, counts as a Mental Health Act assessment; certainly as a proportionate
response to a request.
As the final decision about whether to detain or not lies
with the AMHP, if an AMHP concludes that they would not detain a patient, even
with two medical recommendations, then what would be the point of involving two
doctors, which would also incur a cost of around £185 per medical practitioner?
This is certainly an approach to be considered when
responding to a request for a patient at home. But what about someone detained
by police under Sec.136 who has been taken to a place of safety? Wouldn’t the
same logic apply?
Well, the Mental Health Act would appear to be fairly
clear about this. Sec.136(2) states that a person detained under Sec.136 and
taken to a place of safety “may be detained there for a period not exceeding 72
hours for the purpose of enabling him to be examined by a registered
medical practitioner and to be interviewed by an approved mental health
professional and of making any necessary arrangements for his treatment or
care.”(my italics)
That would appear to be pretty unequivocal, especially
when read in conjunction with The Code of Practice, para16.25:
“The purpose of removing a person to a place of safety …
is only to enable the person to be examined by a doctor and interviewed by
an AMHP, so that the necessary arrangements can be made for the person’s care
and treatment.” (my italics)
But then the Code also says:
“Although AMHPs act on behalf of a local authority, they
cannot be told by the local authority or anyone else whether or not to make an
application. They must exercise their own judgement, based on social and
medical evidence, when deciding whether to apply for a patient to be detained
under the Act. The role of AMHPs is to provide an independent decision about
whether or not there are alternatives to detention under the Act, bringing a
social perspective to bear on their decision, and taking account of the least
restrictive option and maximising independence guiding
principle .”(para14.52)
If an AMHP is expected to “exercise their own judgment”
then shouldn’t that include the ability to discharge a Sec.136, with or without
a doctor being involved?
Richard Jones applies the Winterwerp judgment (Winterwerp
v Netherlands (1979)2EHRR387 ECHR) to detention under Sec.136. He
observes: “Except in emergency cases” an individual “should not be deprived of
his liberty unless he has been reliably shown to be of ‘unsound mind’”.
He notes that the European Court of Human Rights said
that it “cannot be inferred from the Winterwerp judgment that [a medical report
on the patient] must in all conceivable cases be obtained before rather than
after the confinement of a person on the ground of unsoundness of mind” (X v
United Kingdom (1981) 4EHRR188).
You might think that this provides a legal justification
for an AMHP to dispense with a doctor if an AMHP sees the patient and is
convinced that they are not mentally disordered. In such a situation, would it
not breach their human rights to prolong their detention?
But Jones is not advocating that an AMHP can protect a
person’s human rights in this situation, as he then goes on to say that “a
medical assessment should take place promptly after the person’s arrival at the
place of safety”. AMHPs do not figure in this scenario.
So it would appear that an AMHP alone cannot discharge a
patient from Sec.136. This power is, however, conferred on a medical
practitioner. The Code states:
“If a doctor assesses the person and concludes that the
person is not suffering from a mental disorder then the person must be
discharged, even if not seen by an AMHP.(para16.50)
Ultimately, it is not the role of the AMHP to identify
whether or not a patient is suffering from a mental disorder. That can only be
done by a medical practitioner.
While “there is no obligation on an AMHP … to make
an application for admission just because the statutory criteria are met” (CoP
para14.103), an AMHP must still ensure that they have fulfilled the
requirements of Sec.136, by arranging for at least one doctor to be involved in
the assessment.
But what’s this on the Mental
Health Cop blog?
In his advice to police on Sec.136, he concludes with the
following statement:
“But whatever situation you’re wrestling with, it comes
back to three things –
- Has a Doctor said, “This person is not mentally disordered within the meaning of the Mental Health Act”?
- Has an Approved Mental Health Professional made necessary arrangements for that person’s treatment or care?
- Has 72 hours expired since their arrival at the first place of safety to which they were taken after detention?
If the answer to any of them is “Yes”, then s136 has
legally ended; if the answer is “No”, then it is still running.”
I’m afraid that, in this instance, the eminent Inspector
has erred, as an AMHP cannot in law make “necessary arrangements for that
person’s treatment or care” without having first involved a doctor in the
process.
