Can an AMHP discharge a patient detained under Sec 136 without a doctor?

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 –

1. Has a Doctor said, “This person is not mentally disordered within the meaning of the Mental Health Act”?
2. Has an Approved Mental Health Professional made necessary arrangements for that person’s treatment or care?
3. 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.