The Policing and Crime Bill is likely to become law in
April 2017. So what, you may ask? This is surely about policing and crime. What
does it have to do with the Mental Health Act?
Well, it’s true that this new piece of legislation covers
a wide range of matters, including police complaints procedures, the Police and
Criminal Evidence Act, and Maritime enforcement, but it is also concerned with
changes to police powers, and this is where there are significant implications
for AMHPs (and the police, of course).
For the second time in 3 years, the Mental Health Act
1983 will have some significant amendments. The last time this happened was
with the Care Act 2014, which among other things, amended Sec.117. Now,
Sections 81-84 of the Police and Crime Act will significantly amend Sec.135 and
Sec.136 MHA, which of course relate to police powers relating to people with
mental disorders.
Reduction of period of detention
One of the most significant changes is to reduce the
period of detention of people under both Sec.135, which is concerned with
entering the premises of mentally disordered people in order to be assessed and
removed to a place of safety, and Sec.136, which is concerned with police
powers to remove people from public places.
Ever since the Mental Health Act 1983 came into force 32
years ago, the maximum period of detention has been 72 hours. This will be cut
to 24 hours. In exceptional circumstances a medical practitioner can extend
this by another 12 hours to a maximum of 36 hours. But that’s it.
This seems likely to create significant problems for
mental health services who, despite Theresa May’s recent promises to improve
services for people with mental health problems, are grossly underfunded, and
likely to remain so, whatever the Prime Minister says.
It has become a not uncommon situation for there to be
considerable delays in finding a bed for a patient who has been assessed under
Sec.136. While it has always been exceptional for Sec.136 to last the maximum allowed
time of 72 hours, it’s far from unknown for a Sec.136 to last for more than 24
hours, especially if there has been a delay in assessment, for instance because
a patient was unfit for interview through drink or drugs, or if a patient was
detained out of normal working hours.
What will happen if a bed has still not been found after
24 hours? Mental Health Trusts are simply going to have to ensure that
sufficient beds are available.
“Public places” and “places of safety”
There are also some intriguing changes and clarifications
to the existing MHA. For example, under
the amended Sec.136, a police officer may “if the person is already at a place
of safety within the meaning of that section, keep the person at that place”.
The new amendments also clarify
the meaning of “public place” for the purposes of the Mental Health Act. While
it does not exactly define what a public place is, it specifies that a police
officer can exercise their powers under Sec.136 “at any place”, the explicit
exceptions being “any house, flat or room where that person, or any other
person, is living,” or “any yard, garden, garage or outhouse that is used in
connection with the house, flat or room, other than one that is also used in connection
with one or more other houses, flats or rooms.”
This might mean that there will be fewer arguments about
what may constitute a public place, since powers will essentially be able to be
exercised “at any place”. However, it also leaves the question of what
constitutes a “place of safety” rather vague.
It would appear that someone could be detained in an
A&E department of a hospital, or in a care home, for example, and the
police officer can then keep them there in order to be assessed, as these might
constitute places of safety.
Children detained under Sec.136
The Policing and Crime Act inserts a new Sec.136A, which
principally states that “a child may not… be removed to, kept at or taken to a
place of safety that is a police station.”
It would therefore not only be extremely undesirable for
a child under the age of 18 to be detained in a police station, but actually
illegal.
This is a logical development of the longstanding
intention that nobody detained under Sec.136 should be detained in police
cells, and most places now have sufficient designated Sec.136 suites to make it
extremely unlikely for anyone, adult or child, to be detained elsewhere.
The most recent statistics for use of Sec.136, taken from
Uses of the
Mental Health Act: Annual Statistics, 2015/16 (November 2016), show
a drastic reduction in the use of police cells. Let’s hope a consequence is
that police cells are never used for anyone detained under Sec.136 in future.
Police consultation before using Sec.136
One final interesting amendment is that before exercising
powers under Sec.136 a police officer “if it is practicable to do so” must
consult a doctor, a registered nurse, an AMHP, or “a person of a description
specified in regulations made by the Secretary of State” whoever that may be.
It is difficult to see quite how “practicable” this
consultation might be, since a police officer may be dealing with a very
fraught crisis situation with a mentally disordered person in a very public
place, such as a town centre or a multi storey car park, and may have to take
drastic action immediately to prevent serious harm.
Many police forces now have some sort of triaging
process, for instance, having a mental health nurse physically based in a
police control room, so it may be not be totally impracticable to gain instant
advice, but it is likely to be a lot more difficult to get into contact with a
doctor or AMHP within an acceptable time scale.
As these changes are almost certainly going to be in
force within 3 months, mental health services are going to have to have robust
contingency plans in place pretty quickly.