Ask the AMHP: Problems with Sec.117 and Autistic Spectrum Disorders

Ask The Masked AMHP for the answers to your thorny MHA related problems. He might know the answer. Or not.

The Masked AMHP always tries to assist people, whether professionals or patients, who ask for assistance or advice. However, I cannot guarantee that my advice is definitive.

My postbag continues to contain frequent requests for advice from parents of mentally disordered people who are encountering problems in receiving appropriate aftercare, and are then being charged for it despite being subject to Sec.117 aftercare. They often find themselves caught in funding arguments between the local authority and the Clinical Commissioning Group (CCG).

Here are a couple of cases which also involve issues concerning Autistic Spectrum Disorders and mental illness.

A parent writes:

My daughter has learning disabilities and was admitted to an assessment and treatment unit under Sec. 2, followed by a Sec.3. She was discharged onto a CTO after a long drawn out battle trying to get the CCG and the local authority to agree who was going to pay for her continuing care.

She lived in residential accommodation before the section but it was not appropriate for her to return due to the severity of her needs. She had been diagnosed with Bi-polar disorder, and subsequently whilst in hospital on the Sec.3 she was assessed as being on the Autistic Spectrum and it was agreed she would be best supported by a provider with specialist knowledge around Autism.

She has been settled in her placement, but after a financial assessment by the local authority she has to pay nearly £90 per week towards her care costs. She has Sec.117 aftercare funding and the CCG pay 50% of her fees and the local authority pay 50% of her fees (then bill her for the £90 per week) After a recent DoLS application the BIA has questioned why she is paying for her care at all when she has Sec.117 funding. They are adamant my daughter should not be paying at all. My daughter had to be housed out of area as there was no provision to meet her needs in her home area. They have not argued this.

Can you help?

The Masked AMHP replies:

There can be no doubt. As she is subject to Sec.117 aftercare she should not be paying anything towards her identified mental health needs. She should be entitled to a full rebate of what she has been charged already.

The parent:

Would it make a difference that the CCG argued that her learning  disability is not related to her mental health issues? So they should only pay for half?

The Masked AMHP:

A learning disability is a mental disorder within the meaning of the Mental Health Act. Therefore needs arising from the learning disability are covered under Sec.117.  They're really trying it on!

Another parent writes:

My son is 30 and lives in supported accommodation that is funded by the local authority where he was living when he was sectioned under the 1983 MHA (many times, mostly under Section 3).  He was in and out of hospital for several years before being discharged 3 years ago.

Since he left home to go to college when he was just 19 his mental health was very poor and he was admitted to hospital with psychosis on numerous occasions.  He was put on anti-psychotic medication and eventually, when discharged from hospital, he was on a CTO.  The medication made things worse for him. The CTO is now lifted and he is now off medication.

For many years we thought our son was autistic (Asperger's) and that this was at the heart of his distress.  Eventually he was diagnosed with Autism Level 1. This diagnosis has really helped him turn his life round but we have had to pay for the psychological and day-to-day specialist support for him as the supported accommodation that he has been living in for the last 3 years is for people with mental health problems only and is very inadequate.

We have now found excellent supported housing that is Asperger's specific that will support our son to gain the life skills he lacks.  It will only cost a little bit more than his current care package (24 hours a week) but the CMHT and LA social worker are saying that the Housing Panel is not likely to support the move as the recent Placement Review recommended our son be stepped down to 'independent living'.  We have said we can afford the top-up on the fee difference.

The social worker is now implying that our son no longer has a mental health condition, that he is autistic and therefore should be assessed by the Adult Social Care team and won't be eligible for funding for supported housing.  Our son is very bright and articulate but this masks so much of his vulnerability and fragility.  The social worker is now intimating that he is no longer entitled to Section 117 aftercare funding.  This would mean he would be expected to live alone without support (unless we pay for it) and all that might mean for his safety and fragile mental health.

We see a continuum from our son's autism to his previous poor mental health - the social worker just sees CMHT/LA dividing lines and overstretched budgets.  How can we protect our son's Section 117 funding at least until he is receives the right support to enable him to live independently successfully?

  

The Masked AMHP replies:

It's difficult to give a definitive reply to your question. You say your son has experienced periods of psychosis in the past, but that he is no longer prescribed any medication. However, if he is still seeing a psychiatrist and/or has a care coordinator in a mental health team, then he is still receiving aftercare, and therefore would continue to be entitled to Sec.117 aftercare.

He could only be discharged from Sec.117 aftercare if he was no longer receiving any services for mental disorder, and was no longer considered to be suffering from a mental disorder within the meaning of the Mental Health Act. However, the definition of mental disorder is broad, and would include autism or autistic spectrum disorder.

A difficulty would be the difference between what you would like for your son, and what the local authority and mental health services consider he requires to meet his mental health needs.

If your son is still under a mental health team, it might be worth getting a NHS psychiatrist to review his diagnosis. If he has been discharged from the mental health team, then his GP could refer him for a NHS diagnostic assessment.

But in any case, autism is still a mental disorder.

The parent:

Thank you for your very detailed response.  It is helpful to understand that autism (albeit Aspergers) is considered to be a mental disorder (eating problems, anxiety and OCD are part of my son's life too).  My son hasn't yet been discharged from the mental health team but the pressures on the LA social care budget are such that he would be an easy one to pick off and no longer fund.  You are right it seems that there is now a difference of opinion about what we feel our son needs and what the CMHT and LA feel - painful.

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.

How difficult can it be to get an ambulance to convey a detained patient to hospital?

I’m going to tell you a horrifying, but also a tedious and frustrating, true story. It’s all about trying to get an ambulance to transport an elderly man with dementia detained under the Mental Health Act from a care home to a hospital.

The fact that the hospital is a private hospital 100 miles away from the care home should be immaterial…

What ought to happen when a person, any person, is assessed under the Mental Health Act follows a particular routine.

1. Arrangements for the patient to be assessed are made. This includes notifying the bed managers that a bed may be required, and arranging for two doctors, at least one of whom must be Sec.12 approved, to attend with the AMHP.

2.The assessment takes place.

3, A hospital is identified that will accept the patient.

4. Arrangements are made for the patient to be conveyed to the hospital. An ambulance is usually the most suitable mode of transport.

5, The patient is conveyed to hospital and admitted.

The chronic nationwide shortage of psychiatric hospital beds, in our area especially for people with dementia, is now routinely meaning that the assessment process is suspended after step 2. It can be days, or even weeks, before a bed can be found and admission arranged. It is now very common in our area for this particular private hospital to be used almost as an additional ward for our local dementia patients.

This hospital often visits the potential patient before making a final decision, which can take several days in itself, and if the patient is fortunate enough to be considered suitable, the hospital requires that they be admitted before 13:00 hrs on the day of admission.

But even once a bed is identified and the patient can be formally detained under the MHA, we have been encountering problems with the local ambulance trust.

Where a patient is in a care home, and the receiving hospital requires admission before 13:00 hrs, it makes sense to order the ambulance in advance, the previous day.

That’s where our AMHP hub first encountered problems.

It was my job as the duty Practice Consultant (see my previous blog post for an explanation of what a PC is) to ring the ambulance service and order the ambulance.

However, I was told in very clear terms that the ambulance service was an emergency service, and could not be booked in advance. They could only dispatch an ambulance on the day, using the “traffic light” protocol agreed between the AMHP service and the ambulance service.

Briefly, this arrangement prioritises the response times. A “red light” means that the patient is seriously distressed, the situation is critical, and they need to be taken to hospital as soon as possible. The ambulance will try to arrive within 30 minutes.

An “amber light” means that the patient is less distressed, and the ambulance will endeavour to arrive within two hours, while a “green light” means that the patient is settled and in a safe place, and the ambulance will then arrive within four hours of  being requested.

Generally, this system works well, although even for “red light” requests, ambulances can still be diverted to more urgent calls, such as cardiac arrests. I can’t complain about this.

I pointed out that, as it was a “green light” request, if the AMHP service made the request at 08:45 hrs, at the start of the working day, if the ambulance did not arrive for 4 hours, then it would be impossible for the ambulance to get the patient to the hospital before the admission deadline, as the journey would take at least two hours.

But the ambulance service were not to be swayed, as the request was not within what they were contracted to provide.

In the end, my PC colleague who was on duty the following day had to ring the ambulance service from home at around 07:30 hrs in order to ensure that the ambulance would arrive in time to transport the patient the two hour journey to the hospital. In the event, the ambulance arrived at 10:45 hrs and dropped off the patient at the receiving hospital 5 minutes before the admission deadline.

This was clearly an untenable situation, so our AMHP hub manager spent several days negotiating with the relevant Clinical Commissioning Group (CCG), who actually make the contracts with the ambulance trust, as to how this sort of situation could be avoided in future.

By the time I was duty PC the next week, an agreement had been reached.

The CCG contracts manager gave instructions that we were to ring a different number when wishing to arrange an ambulance in these circumstances. This was the number of the patients booking line. These ambulances were part of the local ambulance trust, but this particular service allowed routine booking of ambulances to transport patients in a range of situations.

As it happened, another patient was in identical circumstances, so it was again my job to arrange for an ambulance to convey him to the same hospital by 13:00 hrs the following day.

I rang the number, explained that the CCG contracts manager had told us to do this, and requested an ambulance for 09:00 the next day.

The call handler was non-plussed. He went off to consult with several different people during the course of the call, before finally giving me not one but three reasons why they could not or would not convey this patient.

Reason #1 Their service was not contracted to convey patients detained under the Mental Health Act.

Reason #2 As both the hospital and the care home were private, this meant that the patient was not an NHS patient, and they would not in any case transport such a patient. (The fact that the hospital was being paid by the mental health trust/CCG, and hence the NHS, to receive and treat the patient appeared to make no difference).

Reason #3 Even though their contract was with a CCG that explicitly covered the town in which the patient resided (it was in the name of the CCG), they didn’t actually, really, cover that area, as it was in another county.

So I rang the CCG’s contracts manager and explained the difficulty I was having. She suggested I spoke to the contracts performance manager in the mental health trust.

I spoke to this officer, who admitted that there appeared to be a gap in the contract, and told me to leave it with them.

Somewhat to my surprise, an hour or so later I received a phone call from another call handler at the ambulance booking service. He took all the necessary details of the transport request, including his current medication regime, the fact that he was being prescribed lorazepam 4 times a day, and the fact that he was frail and would need wheelchair transfer. It was arranged that the patient would be collected from the care home at 09:00 hrs the following morning. I was even given a booking reference number.

Success at last! Sanity had prevailed!

Ah. An hour later I received a call from the patient ambulance booking manager. They had discovered Reason #4: their service was not contracted to take sedated patients. We would therefore have to make a request tomorrow morning.

So it was again left that my colleague the next day had to make an early morning phone call to the usual ambulance service number.

They initially tried to give a Reason #5 why they could not transport the patient. This was on the grounds that the hospital, being in another county, was outside the area they covered. However, this was withdrawn when it was pointed out that the ambulance trust covered a very large geographical area which explicitly included the county in question.

They didn’t seem to be able to come up with a 6^th reason, so eventually an ambulance crew picked the patient up and took him to hospital within the required time scale.

What’s the significance of this in the wider scheme of things?

This sorry failure to meet what would appear to be a straightforward request exemplifies a far deeper problem in the NHS:  privatisation by stealth.

This has been happening gradually for many years. It goes all the way back to Margaret Thatcher’s government in the early 1990’s, which brought in the NHS & Community Care Act 1990. Among other things, this introduced the concept of the purchaser/provider split in the provision of social care, which was explicitly designed to encourage the use of private services. Whereas before, home care was provided in house, the Act required at least 80% of home care to be purchased from private organisations.

In mental health, NHS trusts have been operating under various guises for many years, opening the way, at least in theory, for trusts to compete with each other in an internal market to provide services, while the introduction of clustering and “payment by results” in 2013 made it possible for packages of care and treatment for mental disorders to be “sold off” to private companies prepared to offer specific services. I discuss this in more detail in this blog post.

The Health and Social Care Act 2012 disposed of Primary Care Trusts and replaced them with Clinical Commissioning Groups, supposedly led by clinicians, whose function was to purchase services from NHS Trusts – or indeed, private companies prepared to offer these services. Companies such as Virgin Care have stepped in and provide a range of health services, relieving the NHS of billions of pounds in the process.

Apart from these private health care companies, there is now a well-established internal market within the NHS. While ostensibly this is designed to facilitate provision of services, in practice this does not necessarily happen. The example I have given highlights the problems with this artificial division of budgets.

The problems I encountered in obtaining transport for a detained patient are entirely due to this bizarre internal market. The local Ambulance Trust, which is of course part of the NHS, has a range of contracts with the Clinical Commissioning Groups within its area.

These contracts are not necessarily to provide a blanket ambulance service, but are written in such a way that very specific services are offered, and if a request does not fit with the wording of the contract, then the service will not be offered.

It has long been established that the local ambulance trust will not convey patients out of its area, and will not convey patients requiring restraint. The AMHP service then has to rely on private ambulance services, at huge expense to the CCGs.

Another local example of what would appear to be a nonsensical interpretation of a contract is that the local ambulance service will convey a patient detained under Sec.135(1) to a place of safety for the purpose of assessment, but if the patient is then detained  under the MHA and needs to be conveyed to a hospital, this transfer is not covered by the contract.

It is difficult to understand how this system is of benefit to patients, and how it might save the NHS money.

How Can We Make the AMHP Role Manageable?

A busy AMHP Hub (all the AMHP's are out on MHA Assessments)

Andy McNicoll’s recent analysis of national AMHP shortages, published in Community Care, revealed a desperate situation across England.

The lack of adequate mental health resources, caused by year on year reductions in funding for Mental Health Trusts, has led to difficulties in finding alternatives to hospital admission, at the same time as a desperate shortage of suitable beds has meant community based services are required even more.

The role of the AMHP is therefore becoming increasingly fraught and stressful. It is hardly surprising that AMHP’s are giving up the role, especially when social worker AMHP’s are also struggling to implement the Care Act.

Para14.35 of the Code of Practice states that:

Local authorities are responsible for ensuring that sufficient AMHPs are available to carry out their roles under the Act, including assessing patients to decide whether an application for detention should be made. To fulfil their statutory duty, local authorities should have arrangements in place in their area to provide a 24-hour service that can respond to patients’ needs.

Unfortunately, “sufficient” is nowhere defined. BASW’s consultation on the Draft Code, back in 2015, observed that “We often work on a guideline of 1 AMHP per 10,000 population. If this is thought to be a good guideline figure, it may be helpful to state this in the Code.” However, this suggestion did not make it into the final Code.

Hampshire’s total population in 2015 was around 1,350,000. If this guideline were to be applied, Hampshire would require 135 AMHPs to adequately serve the county. However, Andy McNicoll discovered that AMHP numbers had fallen to 46, while at the same time assessments had risen by 12%. Hampshire was working to build this number up to 55, which would still appear to be little more than a third of the numbers ideally required.

Northamptonshire has a population of around 694,000, but has also been losing AMHP’s, currently having only 34, even though assessments rose 19%. If BASW’s recommendation was applied, the county should have at least 94 AMHP’s.

Norfolk’s current population is approaching 900,000. There are currently around 85 AMHPs registered in Norfolk, which is actually close to the BASW’s ideal number. However, with several on long term sickness, or maternity leave, or otherwise unable to practice, the actual number of available AMHPs is less.

The 2016 National AMHP Leads Survey, presented to the AMHP Leads Conference on 19.09.16. does not use BASW’s definition of “sufficient” AMHPs, or indeed suggest another definition. This found that in reality the average number of AMHPs per 100,000 population is 5.7. This would be around half of BASW’s “ideal” number.

Whatever the definition of “sufficient” AMHPs may be, the Community Care article highlights difficulties in retention, through the stress of the role, and having to reconcile normal work commitments, such as implementing the Care Act and managing a case load, with being on an AMHP rota.

There are ways of supporting AMHPs in their role and providing incentives to continue practising. For example, some local authorities provide a financial incentive for being a practising AMHP. This may not, however, in itself be sufficient incentive to undertake the stresses of the role.

The current dire state of mental health services nationally, where there is a national shortage of suitable hospital beds, and where other services, such as the Police and Ambulance Service, are struggling to manage their core duties, makes it difficult, if not impossible at times, for AMHPs to undertake their legal duties, leading to long hours spent trying to organise arrangements for patients who have been assessed.

While the only solution to a lack of resources would appear to be more money, which is to materialise in the current climate of austerity, there are ways in which local authorities can support AMHPs and reduce the stresses of the role. This is through the way that local AMHP services are managed.

Approaches to managing an AMHP service

Nationally, there appear to be three basic approaches to running an AMHP service.

Dedicated AMHP team

This consists of a team of full time AMHPs, whose job is solely to staff the AMHP rota. With such a system, it would be possible to manage with a smaller number of dedicated full time AMHPs.

The advantages of this system are that the team members would not be encumbered with a caseload and can devote their working day to the AMHP role. It also facilitates having a shift system, which might encompass a 24 hour rota.

Disadvantages might include a deskilling of team members, using only their specialist skills and knowledge relating to mental health legislation.

A disparate AMHP rota

This system takes AMHPs from a range of social work (and/or nursing) teams, where AMHPs on duty are situated within their teams, scattered across a geographical area, and are contacted directly when requests for MHA assessments are made.

There are a number of problems associated with working in isolation and receiving requests for assessments directly. One is that you can be bombarded and overwhelmed with requests, if the system is a geographical one, and several requests relate to your specific area.

Another is that you may feel bound to deal with the referral that day, when you are on duty, even though there might be advantages in taking no immediate action.

An example might be a request to assess someone detained under Sec.5(2). This allows for up to 72 hours to assess the patient, who is an inpatient. A patient may be detained under this section when they are an informal patient who impulsively decides they want to discharge themselves.

If you receive a request and assess a patient who has just been placed on Sec.5(2), you may be assessing someone in personal crisis, whereas leaving the assessment for a day or two may give time for the patient to reconsider and decide to remain as an informal patient. So this system could lead to more people being detained under the MHA.

While there are clear disadvantages to patients with this system, there are also disadvantages for the AMHP, who may feel isolated and alone, with no-one to assist when operational problems arise. They may also be expected to accept referrals right to the end of their working day, which could mean working late into the evening.

I worked this system for many years, and our Emergency Duty Team was very strict about not accepting requests before 17:30 hrs. This meant on some occasions having to accept a referral within minutes of the end of the working day.

In my view this system carries a significant likelihood that AMHPs will burn out and decide to hand in their warrants.

Centrally managed AMHP Service

This model consists of a local authority wide AMHP service, with a central “hub”, where duty AMHP’s are based in one or two locations, depending on the geographical size of the area, and where referrals are triaged before being allocated.

This is the system we have operated in my local authority for two years. I like it. Let me tell you how it works.

Our AMHP hub consists of a team manager, who is also the County AMHP Lead. In addition, there are three full time equivalent Practice Consultants, and a business support officer to provide administrative support. The manager and the Practice Consultants are all AMHPs themselves, and take turns on the AMHP rota.

The team is based in a suite of offices based in one of the psychiatric hospitals. One of the county’s Sec.136 suites is based on the same site.

The model has a daily rota of AMHPs, taken from social work and nursing teams across the county – most are based in the central AMHP hub, in a room with the duty Practice Consultant. In addition, because of the geographical size of the county, one is based in the west of the county, and one in the east.

Duty AMHPs are expected base themselves in designated AMHP offices, with the bulk being in the AMHP hub. All the AMHPs have laptops, and there are sufficient docking stations for all the duty AMHPs to be able to log in to the central database.

The AMHP hub is a lively place, where AMHPs can support each other, share problems or practice issues, and discuss various aspects of Mental Health law. And drink coffee and eat biscuits.

Each day, there is a Practice Consultant on duty. Their job is to receive requests for Mental Health Act assessments, to triage and prioritise them, and to allocate to AMHPs if appropriate.

This is a robust and proactive job. I know, as one day a week I am the duty PC (Only one day a week, you ask? Remember, I am semi-retired, I only work two days a week, one day as a duty AMHP, and one day as a PC).

Some requests clearly require the allocation of an AMHP. These would include Sec.5(2) on a hospital ward, where an assessment has to take place within 72 hours, and Sec.136, which generally cannot be discharged without the involvement of an AMHP. Sec.136 detentions always take priority. They would also include patients detained under Sec.2, where the hospital psychiatrist wants to detain them under Sec.3, and requests relating to patients in police custody.

Some requests require more investigation before a decision is made whether or not to conduct a formal assessment. The duty PC will see what available information there might be about the person. They may ring the referrer, to establish what action has been taken prior to the request, with a focus on establishing that all less restrictive options, in accordance with the first principle of the Code of Practice, have been exhausted prior to making the referral.

Sometimes these conversations can become difficult, especially if the PC has made a decision not to accept the referral (you can see a sample in a previous blog post). But the PC needs to make sure that any request does actually require the involvement on an AMHP; the need to protect a scarce resource is important.

This system also allows the PC to prioritise requests. Often, there is no great urgency in the assessment. There may be a week or more before a Sec.2 expires, allowing plenty of time to undertake an assessment under Sec.3. A Sec.5(2) allows 72 hours to undertake an assessment. And of course, with a dire shortage of beds, even if an assessment takes place, the AMHP may not be able to complete the section papers because there is no bed.

(As a current example, I am aware at the time of writing that there are 8 dementia patients awaiting a dementia bed. There are frequent requests to assess dementia patients in care homes. How can this be treated as requiring an urgent response, if there may not be a bed available for one or two weeks?)

This system permits the service to protect AMHPs to a considerable extent. It means that fewer AMHPs have to go out at the end of their working day. It often means that referrals can be stacked and dealt with first thing the next morning, making it more likely that the assessment would be concluded within the normal working day. The duty PC is also available on the phone to offer advice and support to the AMHPs out in the field.

This system has a further advantage: the management team, with direct day to day experience of the AMHP role, are ideally suited to provide professional AMHP supervision, to ensure that AMHPs maintain their Record of Achievement in order to meet reapproval requirements, and to maintain quality control. An example of this is that it is one of the duties of PCs to sign off AMHP reports, meaning that every report is read by a PC, and any practice issues can then be identified and managed within professional supervision.

It also means that specific operational issues, such as bed shortages, issues with police and ambulance response times, etc, can be flagged up, and taken forward to higher level multi-agency meetings for resolution.

The evidence so far is that this approach can help to maintain staff morale, to provide an environment in which the AMHP role is supported and valued, to reduce “burnout” and to aid in staff retention and maintain an effective AMHP service.

What Exactly is the Ministry of Justice Intending to Do with Mental Health Tribunals?

Almost everyone who is subject to a section of the Mental Health Act, including Sec.2, 3 & 4, Guardianship and Community Treatment Orders, is entitled to appeal against their detention.

Prior to the changes to the MHA made by the 2007 Act, the Mental Health Act Commission was responsible for arranging and overseeing these appeals. The 2007 Act, however, transferred this duty to the Ministry of Justice, and the Mental Health Tribunal became just one of the Tribunals in the First Tier system. These tribunals cover everything from employment issues to Social Security and Child Support.

A Mental Health Tribunal consists of a Judge, a consultant psychiatrist, and a specialist lay member, who is someone not a lawyer or a doctor but with a particular interest in mental health, such as a social worker or a nurse.  This ensures that there is a balanced perspective when assessing whether or not a detained patient should be discharged.

I have had mixed feelings about this transfer of responsibilities, not least because the now defunct Mental Health Act Commission kept useful statistics relating to what happened to people who appealed.

For example, in 2008, the last year that such records were kept, there were a total of 7295 tribunals. Of these, 967 patients were discharged, which amounts to 13% of all appeals.

However, in addition to this, 5862 patients who appealed were discharged by their psychiatrist prior to a hearing. In other words, it was clear that it was worth a patient appealing, as they would have a good chance of being discharged before the hearing simply because their psychiatrist either could not justify continued detention, or (Heaven forbid) could not be bothered to write a report. Even if the appeal did get to a hearing, they then had a 13% chance of being discharged.

Unfortunately, the Ministry of Justice does not keep such records, so we have no way of knowing this sort of information.

Anyway, the reason I am writing this blog is to highlight a document which has just been released by the Department of Justice, titled Transforming Our Justice System.

There are a lot of fine words in this document. It begins by boasting how wonderful our present justice system is, before stating:

“The transformation of the courts and tribunals across the country will be based on three core principles that build on its established strengths: Just, Proportionate, Accessible.”

It is also keen to save costs, and sees one of the ways of doing this as using technology to streamline the legal process.

It breezes through somewhat vague plans for the criminal and civil courts before reaching its plans for the Tribunal system, towards the end of the document’s brief 16 pages.

On the surface, there is nothing contentious about this section. It begins:

“Tribunals are an essential component of the rule of law. They enable citizens to hold the state and employers to account for decisions that have a significant impact on people’s lives. The hallmark of the tribunals system is the delivery of fair, specialist and innovative justice. That must not change.”

It is keen to adopt “a more inquisitorial and problem-solving approach, focused around the needs of individuals so that claimants can be more confident that their needs will be understood.”

It goes on to suggest that “Innovative ‘problem-solving’ opportunities will be created to improve the determination of a range of issues which have historically been spread across courts and tribunals. This ‘one stop shop’ approach is being piloted with property disputes which can be dealt with before one specialist Judge”.

And then it drops a bombshell: “The potential to extend this into other areas such as Mental Health and Employment will be explored.”

And that’s all. There is no detail as to exactly how these changes will come about.

But what the vision statement is saying is that the Ministry of Justice are seriously considering replacing the current Mental Health Tribunal, with its three members, with a single Judge.

They are actually thinking that it may be OK to dispose of the psychiatrist and the lay member.

In my view, the Tribunal psychiatrist has a very important role to play. They may be the only psychiatrist not employed by the NHS (or a private hospital) to interview and independently assess the patient. It is the patient’s only chance to put their views about detention to someone not involved in their treatment.

The lay member also has an important role to play, to explore the social dimension of the patient, and to provide a “lay”, if also expert, opinion.

Unless, like a Coroner, the Judge is qualified in both Law and Medicine, I find it hard to understand how a Judge alone can make the complex judgments required to reach a just conclusion in the absence of the other two Tribunal members.

I know it’s only mentioned in passing, that this statement is a mere outline, that there may be many changes before these proposals are initiated.

But we need to be on our guards, if we want the Mental Health Tribunal to continue to provide a check on the mental health system, and give detained patients a platform on which to be properly heard.

What is the Mental Health Act For?

Working in a busy AMHP office triaging requests for assessments under the Mental Health Act, I am driven to conclude that often an AMHP’s role is as guardian and upholder of the law.

We can receive requests from a number of sources. They can come from a GP, or a care coordinator in a mental health team, or a mental health liaison nurse working in a criminal justice or medical hospital setting, or a psychiatric ward, or even a care home manager. They can also come from the police, either because they have detained someone under Sec.136, or because they have arrested someone who subsequently appears to be mentally disordered.

And of course, the nearest relative has a right under Sec.13(4) to request an assessment under the Mental Health Act. Although not quite: the Act actually states that the local authority must “make arrangements… for an approved mental health professional to consider the patient’s case with a view to making an application for his admission to hospital”, which isn’t the same thing.

These requests are not necessarily appropriate. More than that, our service is increasingly finding that requests for formal assessments under the MHA may not be triggered only after all other alternatives have been exhausted, but rather because of a shortage of suitable resources, or a failure of the system, or even because the referrer is reluctant to do their job.

Sometimes requests come from the duty worker in a community mental health team. They have taken a concerning call from a relative, or a GP, but either the care coordinator of the patient is on leave, or the patient has been referred to the team but a shortage of staff has meant that they have not been allocated a worker.

Sometimes requests come from someone such as a care home manager who believes that a MHA assessment is a fast track way of getting someone assessed by a psychiatrist.

And sometimes relatives contact the local community mental health team to express concerns about the mental health of their relative who is a patient of the team, and the person they contact advises them to request an assessment under Sec.13(4).

Here are a couple of real conversations I have had with referrers.

The Mental Health Professional

Referrer:        I’m a nurse in the Early Intervention Team. Jeremy, who’s 19, was referred to us by his GP, and I gave him an appointment to see him at our office today. I am referring Jeremy for a Mental Health Act Assessment.

Me:                 And what are your concerns?

Referrer:         His mother has given me a lot of information about his behaviour, which appears to indicate he is psychotic.

Me:                 His mother?

Referrer:        Yes. Jeremy refused to come to the assessment, but his mother did, and I had a long conversation with her about the problems.

Me:                But you haven’t actually seen him? We would expect someone making a request for an assessment under the Mental Health Act to have seen the patient first.

Referrer:       But he won’t come to an appointment.

Me:                Have you considered going out to see him?

Referrer:       Oh, that’s not necessary. I’ve made my assessment, and he definitely needs a MHA assessment.

Me:                I’m just a little surprised you feel that a conversation with his mother, without actually having made contact with Jeremy, is sufficient evidence to justify an AMHP and two psychiatrists knocking on his door.

Referrer:       I’ve made a professional decision that he needs a MHA assessment, so it’s your job to go out and assess him.

Me:               But Jeremy hasn’t actually been seen by a doctor or a mental health professional.

Referrer:      Are you questioning my professional ability to make an

                        assessment?

Me:               But all you’re basing your assessment on is reports from his mother. I really think you should make an effort to see him before making a decision about referring him for a MHA assessment.

Referrer:      But his mother says that he won’t see anyone. And anyway, I’d be concerned that he might be aggressive if I went to see him.

Me:               You haven’t convinced me that Jeremy needs a formal assessment under the MHA. But I’ll tell you what I’ll do. I can arrange for one of our AMHP’s to go out with you for a “look see”. Then at least there’s been an effort to actually see the patient. And we can take it from there.

Referrer:      But I’ve made a professional decision that Jeremy needs an assessment under the MHA. There’s no need for me to go out to see him.

Me:               Bangs head on table repeatedly

The GP

GP:              I’m requesting an assessment under the Mental Health Act for one of my patients, Giles. He’s in his 60’s, and he’s got terminal cancer which is metastasising, and Parkinson’s Disease. I arranged for our palliative care nurse to arrange to see him. When she rang up, he told her that he didn’t want to see anyone, and was going to cut the cancer out himself, since no-one was doing anything about it. We know he’s got a knife, which he keeps under his pillow, he’s told us about it before.

Me:              So has anyone actually seen Giles?

GP:              The nurse has spoken to him on the phone. His usual GP saw him a week ago.

Me:              But on-one’s seen him today? Because we would expect a doctor to have actually seen the patient before referring for a MHA assessment. From what you’ve told me, his current behaviour could be the result of physical illness. If the cancer is metastising, it might be affecting his brain and thought processes. The Parkinson’s Disease could also be affecting his mental state.

GP:              So you’re suggesting I go out and see him to see if there’s something physically wrong with him?

Me:              Yes. He might need to be admitted to a medical ward rather than a psychiatric unit. And he might even agree to an admission to hospital. That needs to be explored before we go down the MHA route, which should only be considered once all less restrictive options have been tried. 

 

GP:              But I’m frightened to go out in view of the fact he has a knife and he expressed aggression to one of my nurses.

Me:              You could ask the police to accompany you if you have concerns about your safety. After all, if an AMHP went out to assess, they’d probably want the police with them in view of what you’ve told us.

GP:              That’s a good idea! I’ll go out with the police, see if he’s physically ill, and then I can get back to you if I think the main problem is mental illness.

Me:              Yes.

(The GP contacted the AMHP service the following day to let us know that he didn’t after all need a MHA assessment, as the problems were mainly physical, and he’d been admitted to a medical ward.)

In response to the level of referrals which were deemed inappropriate, our AMHP Service has developed a protocol for referring, which has been circulated to all organisations who may refer for MHA assessments.

Among the requirements are:

• For patients unknown to secondary services, the GP should first have seen the patient and considered alternatives.
• For patients known to community teams but unallocated, that team should have made efforts to see and assess the patient first.
• The referrer must have seen and spoken with the patient, or the patient must have been seen by another professional worker and advised of the concerns, unless there are clear, defensible reasons not to do so.
• If the referrer is not a Clinical Team Leader/ Team Manager or senior worker then they will be expected to have discussed the referral with a senior member of their team in order to rule out alternative support or treatment options. For example:

o   Has the referrer considered a referral for a Social Care Assessment and/or Carer’s Assessment?

o   Has the referrer considered or made a referral to the Dementia Intensive Support Team or the Crisis Resolution Team to avoid an admission to hospital?

o   Has the person’s Crisis Contingency Plan to avoid admission been implemented?

o   Has the referrer considered and discussed with the patient an informal admission to hospital?

o   Has consideration been given to use of Mental Capacity Act and guiding Principles, including issues of capacity and consent?

o   Have all least restrictive alternatives to detention under the MHA been considered?

This brings me back to my initial statement at the beginning of this post. The Mental Health Act is designed to protect the liberty and other human rights of those deemed to have a mental disorder, to prevent coercion and forced hospitalisation if at all possible. A Mental Health Act assessment is therefore the last resort.

The AMHP Service should not be regarded as an emergency service. (This statement may surprise many, but in genuine cases of emergency, for example, someone standing at the top of a multi-storey car park threatening to jump off, getting an AMHP and two doctors to attend at that point would serve no useful function until the immediate crisis had been resolved via other emergency services.)

The Code of Practice states as its first guiding principle that the least restrictive option should always be tried first:

Where it is possible to treat a patient safely and lawfully without detaining them under the Act, the patient should not be detained. Wherever possible a patient’s independence should be encouraged and supported with a focus on promoting recovery wherever possible.(para1.1)

It goes on to say:

Commissioners, providers and other relevant agencies should work together to prevent mental health crises and, where possible, reduce the use of detention through prevention and early intervention by commissioning a range of services that are accessible, responsive and as high quality as other health emergency services.(para.1.3)

So this protocol merely draws attention to the guiding principles of the MHA, and in particular para1.3.

Issuing this guidance has resulted in fewer inappropriate referrals over time. But hard pressed professionals, faced with a lack of “accessible, responsive” resources, will still try in desperation to use an AMHP to fill the gaps.

Sec.136 and Compliance with Article 5 of the Human Rights Act 1998

Here is a guest blog, written by John Holden, an AMHP with  Surrey Emergency Duty Team, discussing the implications of Article 5 HRA in relation to Sec.136 MHA.

A primary function of the AMHP role is the protection of the liberty interests of the individual.  It is in tension with our duty to ensure the safety of those individuals and that of the public, alongside the promotion of their wellbeing.

I have mapped out my thinking regarding two related issues which straddle this tension, to seek people's views.  Both involve the nature of the relationship of Sec.136 Mental Health Act to the requirements of Article 5 of the Human Rights Act 1998, relating to the right to liberty, and demonstrate the complexity of our work having to take regard of the interface between domestic law and the requirements of the HRA.

The first follows from an interesting debate which has recently arisen amongst the AMHPs in my local authority, stemming from the bed crisis which is nationally affecting us all: the question of whether it is proper, or even lawful, to continue to detain someone under Sec.136 when they are able to consent to, or lacking capacity do not object to, hospital admission, but a bed is not currently available.

Some of our AMHPs, concerned about inordinate waiting times, which can exceed twenty-four hours, combined with the possibility that the person may change their mind, believe it is proper to do so. Others are passionately against the practice.  This is issue A.

The second, Issue B, arises from a concern I have had for some time about the compatibility of the direction in the Code of Practice, at para.16.51 with Article 5, where a person is concluded by a doctor to ‘have a mental disorder’ and therefore has to be seen by an AMHP before they can be released from detention under Sec.136.

Issue A:

Having looked at the statute and relevant aspects of the Code of Practice, it appears clear to me that domestic law provides a framework to authorise the continued detention of someone who is consenting to informal admission.

In brief, Sec.136(2) permits the continued detention of a person taken to a place of safety for up to 72 hours to enable 'him' to be examined by a registered medical practitioner, to be interviewed by an AMHP and, importantly for our purposes: ‘of making any necessary arrangements for his treatment or care’, i.e. the finding and subsequent offer of a bed.

Although the use of the term 'may' (be detained) permits the ending of detention prior to the statutory limit of ‘not exceeding 72 hours’, the Code of Practice guides (at para.16.50) that detention ends as soon as ‘suitable arrangements have been made’.  If a bed is not available it cannot be offered and suitable arrangements are in the process of being made, rather than ‘have been made’. Consequently the authority to detain remains in place.

However, having thought about this matter further, it occurred to me that my colleague’s passionate objection might find grounds in the question as to whether domestic law meets the requirements of the Human Rights Act 1998 and the injunction for the prevention of arbitrary detention following from Article 5. My examination of this question led me to the position that the continued use of detention can in fact be lawful, but in circumstances narrower than I had first thought.

My starting point was the fact that all public authorities are required to act in accordance with the Convention, within the scope provided by the primary legislation (Sec.6, HRA 1998) and to have regard to European jurisprudence (Sec.2, HRA 1998).

Importantly, this includes, in Stanev v Bulgaria (2012), the fact that the European Court of Human Rights considered ‘the detention of an individual is such a serious measure that it is only justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interests which might require that the person concerned be detained.  That means that it does not suffice that the deprivation of liberty is in conformity with national law; it must also be necessary in the circumstances.’ (para.143, my emphasis). 

Additionally, for persons detained on the ground of ‘unsoundness of mind’ (Article 5 (1)(e)) their continued detention must accord with the Winterwerp (1979) ruling: whereby the person must be reliably shown to be of unsound mind by a medical expert; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of such continued confinement depends upon the persistence of such a disorder.

It is also the case that any interference with a person’s rights under the European Convention of Human Rights must be proportionate.

Finally, public authorities have a positive duty to take reasonable steps to prevent a deprivation of liberty in situations where they know, or ought to know, that a deprivation of liberty is taking place (Stork v Germany [2006], para.102).

Therefore, where a person subject to Sec.136 has been examined by a doctor (or doctors) and has been interviewed by an AMHP, it would be reasonable to infer that the continued detention, for the making of suitable arrangements, would require that the person is found to be currently of unsound mind (see issue B below), the kind or degree of which warrants their continued detention and, irrespective of the provisions which may authorise the detention under domestic law, it, in addition, must be demonstrated to be necessary to continue that detention, in the person's or public's interests, and the measures taken must be seen to be proportionate to the ends for which the detention has proved to be necessary. This would include having explored all alternative options providing for less restriction.  If these criteria were not met, following from one's positive duty under Article 5 (particularly as the AMHP has become party to the detention), action would be required to seek to end the detention. 

I am not entirely clear how this should take place.  As far as I can see no agent, per se, has a designated power to do this (other than a Custody Sergeant in a police station).  Rather, the detention lapses at the point at which the suitable arrangements have been made.  This, however, implies that someone has made the judgment that the arrangements have indeed been made and that they are suitable.  Given that the doctor and the AMHP are charged with establishing the care and treatment needs and delineating what arrangements would be suitable to meet the identified need, it would imply that one or both would have a role.  If this were the case (given that Sec.6 HRA 1998 restricts decisions in respect of article rights' to be within the scope of the primary legislation) then there would be scope to act, as the condition of termination is defined by the Code and not by statute: there would be a cogent reason for the decision maker(s) to depart from the Code as the situation was in violation of the person's Article 5 rights.

It follows from the above that the situations which permit continued detention are therefore circumscribed.  The evidence must establish unsoundness of mind of a kind or degree warranting continuation of the nature of the compulsory confinement proposed (Re PS (an adult) [2007] para. 23 (ii)).  This would mean that they are likely to meet the general grounds for detention under the Act – although, it may not be necessary nor warranted to be admitted to hospital under detention.

It is to be remembered that, exercising the principle of least restriction, it is within the AMHP’s discretion not to seek to make an application - the balance being tipped towards promoting the person's liberty interests (whether the intention is to return the person to the community or to await a hospital bed).  The caveat to this is that if the person is to be admitted, then a lawful framework for their likely deprivation of liberty at hospital will need to be in place in advance of that admission.

The next step in the argument is to look at the important relationship between capacity to consent and deprivation of liberty.  As this relationship has an equal, determinative, role in both issue A and B, I would like to pause at this point to introduce issue B. 

Issue B:

This issue arises from a similar concern with regard to engagement of Article 5 and the risk of arbitrary detention.  The Winterwerp criteria referred to above were re-affirmed in Varbanov v Bulgaria (2000). At para.47, it was clarified that in urgent cases the necessary opinion of a medical expert can be obtained immediately after a person's arrest. However, it was explicitly specified that ‘the assessment must be based on the actual state of mental health of the person concerned and not solely on past events’, i.e. the unsoundness of mind has to be both contemporary and persisting, rather than latent and potential (unless rapid decline is indicated).

This is underscored by the fact that, as we have already seen, to qualify for continued detention the unsoundness of mind must be of a kind or degree which warrants that detention. This has always appeared to me to be to be at odds with the requirement of para.16.51, of the Code of Practice, where a doctor alone sees the person first, concludes that compulsory admission to hospital is not necessary and establishes that they 'have' a mental disorder - i.e. they are known to suffer from, but are not currently manifesting signs or symptoms of that disorder - the person's detention is to continue until they can be seen by an AMHP.  I have long felt that this contradiction was a cogent reason for departing from the Code of Practice and for the responsible doctor undertaking the examination to discharge the person from detention.

Although the initial duty would fall to the responsible doctor, where an AMHP has been informed that the person is not currently mentally disordered, the positive duty following from Article 5 would require them, at a minimum, to bring the doctor’s responsibility to their attention.

The role of capacity, consent and deprivation of liberty

It is important to remember that we are addressing concerns regarding the interface of the MHA 1983 with Sec.6 of the HRA 1998.  Issues A and B turn on the engagement of Article 5 and therefore whether a deprivation of liberty is occurring in each situation.  Capacity and consent, which have no role in criteria under the MHA 1983, take on significance at the interface of the two schemes as they play a role in defining whether a deprivation of liberty is likely to be occurring. Let's take these matters in turn.

Both issues A and B only arise if the person's situation can be considered to constitute a deprivation of their liberty.  If the particular situation doesn't, then there is no conflict with the domestic guidance and it's authority remains.  As we know, deprivation of liberty is a tricky beast.  Most importantly it is an 'autonomous concept'.  Although all deprivations of liberty are detentions, not all 'detentions' are deprivations of liberty (see Foka v Turkey (2008), para.75, where the ECtHR found no deprivation of liberty where a stay in a police station, lasting a few hours, did not go beyond the time strictly necessary to complete certain administrative functions).

The calibration of a 'detention' as to whether it amounts to a deprivation varies by the interplay of the 'Acid Test' and such factors as intensity e.g. whether coercion is involved (see Foka v Turkey 2008), and duration e.g. whether there is undue delay in the completion of process (see R(Sessay) v South London and Maudsley NHS Foundation Trust (2011)). I suspect, given the cautious approach advised by Baroness Hale in the Cheshire West ruling, the need to err on the side of caution would lead us to construe those subject to Sec.136 as deprived of their liberty - particularly as coercion is implied.  With regard to duration, if the wait could be considered to be ‘negligible’ then, possibly, it is likely that no breach would occur. 

The exception to the above, in both issues A and B, will be where the person is able to consent to remaining in the Sec.136 suite and does so. This follows from the fact that the subjective element of the test for a deprivation of liberty has not been met.  Care, of course, would have to be taken about the information provided to ensure the person's understanding of what it means to remain until suitable arrangements can be made, or to agree to be seen by an AMHP.  However, if this is the case, there would be no conflict with Article 5 and the authority for detention under s136 would continue.

The issue of capacity and its relationship to determining whether the situation is a deprivation of liberty is therefore important. As far as I can see:

A) people awaiting suitable arrangements to be made, whether going into hospital or back to the community, the situation will be determined as follows:

(i)              People who can consent to remaining, and do so, are not deprived of their liberty.  There is therefore no conflict with the provisions of Article 5, and they remain subject to detention under s136.  The detention will end when it has been decided that suitable arrangements are in place.

(ii)             People who can consent to remaining and object, or who are found to lack such capacity, weather compliant or objecting, are likely to be derived of their liberty. Continued detention must be shown to be both necessary and proportionate with respect to the person's or public's interests, following the scheme discussed above.

B)  For those who have been seen by a doctor and are not currently of 'unsound mind',  the situation will be determined as follows:

(i)              People who can consent to remaining, and do so, are not deprived of their liberty. Therefore no conflict with the provisions of Article 5 arise, and they remain subject to detention under s136.  The detention will end when it has been decided that suitable arrangements are in place.

(ii)             In all other situations they will be subject to a deprivation of their liberty, which would conflict with Article 5 rights as the ground of being currently of ‘unsound mind’ is not met – one’s positive duty to prevent arbitrary detention would then have to be considered.

Therefore, for all those involved with a person detained under Sec.136, in order to promote their liberty interests, the above can be distilled down to the need to ask the question: is the person deprived of their liberty? If so: is it necessary and proportionate, by establishing unsoundness of mind of a nature or degree, considering the person’s interests and that of the public, to continue their detention? Finally, following from the positive duty under Article 5, are there grounds for departing from the Code of Practice to end the detention under Sec.136?