Ambulance call-outs to mental health patients have risen by 23% over the past 2 years and it is common for paramedics to attend to a person experiencing an acute mental health crisis (Marsh, 2017). A key reason for this increase is the requirement of the Mental Health Act 1983 codes of practice for England and Wales, both of which state:
‘Patients should always be transported in the manner which is most likely to preserve their dignity and privacy consistent with managing any risk to their health and safety or to other people.’
This generally requires that an ambulance or other method of transportation is made available to take the person to either the place of detention or the place where they ought to be, in accordance with a locally agreed policy on the transport of patients under the Act.
The Mental Health Act makes provision for the admission, care, treatment and aftercare of persons suffering from a mental disorder under conditions of detention and on an informal basis. The civil detention process under Part 2 of the Act requires an application for detention from an approved mental health professional, or nearest relative, founded on medical recommendations. The Act assessment is conducted at the request of the patient's general practitioner or relative.
There are occasions, however, where the assessment team is unable to gain access to the patient, or the person is in need of immediate care or control. Under these circumstances, the 1983 Act makes provision for the police to take action and hold the person in a place of safety until they are assessed for detention under Part 2 (Mental Health Act 1983, section 135 and 136). To comply with the codes of practice and the Mental Health Act 1983, an ambulance is required to support and transport the person to that place of safety. It is essential for the safety and dignity of the person that paramedics inform their practices by referring to the Act and its codes of practice.
Section 135 provides for a warrant to be issued that allows a police officer to enter premises, by force if required, and remove a person who appears to be suffering from a mental disorder to a place of safety for assessment. Section 136 currently allows a police officer to remove a person appearing to be suffering from a mental disorder, and in immediate need of care and control, from a place to which the public have access, to a place of safety so that they can be assessed for detention under Part 2. The police in England and Wales used the power 28 271 times last year, including some 1 124 instances where the patient was a child (National Police Chiefs' Council 2016).
A place of safety for the purpose of sections 135 and 136 (Mental Health Act 1983) is currently defined as:
Police cells were used as the place of safety some 2 100 times in 2016 including 43 occasions where the patient was a child. Criticism of the use of police cells as a place of safety (particularly for children), confusion over the definition of a place to which the public have access, and delays in conducting mental health assessments have resulted in significant amendments to both sections 135 and 136 by the Policing and Crime Act 2017, Part 4, Chapter 4.
The amendments, that were due to come into force in the summer of 2017, will have an impact on the police's use of the sections, the selection of a place of safety, and the timeliness of Mental Health Act assessments.
Removing a mentally disordered person without a warrant
One of the enduring criticisms of section 136 is the requirement that, for a police officer to use their power, the person in need of immediate care or control must be in a place which the public have access to. Confusion over the meaning of that term has been the subject of several challenges in court and has caused considerable delay in removing the person to a place of safety (R v. Roberts [2003]; May v. DPP [2005]; Harriot v. DPP [2005]).
An amendment introduced by the Policing and Crime Act 2017, section 80, will allow a police officer to exercise the power in any place other than a dwelling or a non-communal yard, garden, garage or outhouse used in conjunction with that dwelling. The police officer will also be entitled to enter a permitted place by force if necessary.
This amendment will provide greater flexibility for the police to act more quickly when the person is on private property, other than a private dwelling, such as a place of work, a roof or on railway property, where currently they require a warrant under section 135 before they can enter the property (Explanatory notes to the Policing and Crime Act 2017).
Changes to places of safety
The current provisions require a police officer to remove a person to a designated place of safety defined under section 135(6). The Policing and Crime Act 2017, section 80, amends this provision and gives the police officer the option of keeping the person where they currently are if it is a place of safety. Before exercising the power under section 136, the police officer will be required, if practicable, to consult with a
To be practical, mental health providers will have to ensure that the police have the contact details of the relevant practitioner to be consulted.
The Policing and Crime Act section 81 will allow a private dwelling to be used as a place of safety where both the patient and the occupier of the property consent to its use.
Criticism of the use of police cells as a place of safety for children will see a new section 136A introduced into the Mental Health Act that forbids the use of police cells as a place of safety for anyone under 18 years old. The new provision will also give the Secretary of State the power to make regulations to limit the use of police cells as places of safety for adults detained under both sections.
Mental health providers will have to ensure that they have suitable, age-appropriate accommodation available as places of safety for those under 18 being detained.
Duration of detention
Under the current provisions of sections 135 and 136, a person may be held in a place of safety for up to 72 hours to enable a mental health assessment to take place and for arrangements to be made for their care and treatment. The duration of detention under both sections will be reduced to 24 hours when the amendments come into force. That new detention period can be extended for a further 12 hours with the approval of the responsible doctor if the condition of the patient makes it necessary.
Where the person is being held in a police station as a place of safety, any extension must also be approved by a senior police officer of the rank of superintendent or above (Policing and Crime Act 2017, section 82). The maximum period of 36 hours brings the police powers into line with the length of detention that can be authorised by a senior police officer under the Police and Criminal Evidence Act 1984.
Mental health providers will have to ensure that AMHPs and suitably qualified doctors are available to undertake mental health act assessments and make arrangements for the ongoing care and treatment within the new 24-hour limit.
As the threshold for extending the duration of detention is based on the condition of the patient rather than the availability of staff and suitable hospital placement, it is essential that there is a clear policy in place for the timely management of patients who require further care and treatment as required under the Mental health Act 1983 codes of practice for England and Wales (DH, 2015; Welsh Government, 2016).
Protective searches
The Policing and Crime Act 2017, section 83, clarifies the circumstances where a police officer may lawfully search a person subject to the police powers under sections 135 and 136. The amendment will enable a police officer to search a person held under those sections if the officer has reasonable grounds for believing that the person has a dangerous item concealed on them that presents a danger to the person or others. The search is limited to what is necessary in order to discover the item and is restricted to a search of outer clothing and mouth.
Using police vehicles
The codes of practice under the Mental Health Act 1983 require that for the safety and dignity of the person, an ambulance should generally be used to transport the patient to a place of safety. Where the risk involved requires the use of a police vehicle, the codes of practice require that it may be necessary for:
‘The highest qualified member of an ambulance crew to ride in the same vehicle with the patient, with the appropriate equipment to deal with immediate problems. In such cases, the ambulance should follow directly behind to provide any further support that is required.’
Conclusion
The amendments to be introduced by the Policing and Crime Act 2017 are the first significant amendments to police powers under mental health law since the Mental Health Act 1959. The amendments will have an impact beyond their immediate use by police officers and will require changes to the codes of practice in England and Wales. They aim to ensure collaborative working between police, ambulance paramedics, AMHPs, doctors and mental health service providers so that patients in need of care and control are held in a suitable place of safety and benefit from a timely assessment of their mental health needs, and an onward placement to meet those needs.
Although the Policing and Crime Act 2017 is on the statute book, no commencement notice has yet been issued to bring the amendments to the Mental Health Act 1983 into force. Following the general election in June 2017, the DH stated that the amendments would not come into force until the autumn at the earliest.
Paramedics and the ambulance service are often required to assist the police in discharging their powers under the Mental Health Act 1983. Paramedics must therefore inform their practice by reference to the amended provisions of sections 135–136A so that they protect the rights, safety, and dignity of the person being treated and transported to or between places of safety.