Section 136 : What is it and why do we have it ?

More views of - or before - Cambridge Film Festival 2014 (28 August to 7 September)
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29 November (now (5 December) with esteemed Tweets of appreciation from @MentalHealthCop)

@THEAGENTAPSLEY A fairly weak BLOG, you must admit - it fails to consider history, law and practice in light of how services have evolved.
— InspMichael Brown (@MentalHealthCop) December 5, 2014

One would have to read Hansard, the verbatim record of the business of the Houses of Parliament, to know what was on the mind of MPs and Peers when they enacted the Mental Health Act 1983 (since amended), and, within it as a sequence of numbered enactments, section 136, which begins (quoting sub-section 1) :

Mentally disordered persons found in public places

(1) If a constable finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety within the meaning of section 135 above.


Not exactly normal English ! However, if they can interpret it, our police are given a power by this sub-section (s. 136(1)), but only if the criteria apply for it to arise – one could infer a concomitant duty to act by using this power, though, if so, one should be able to justify one’s thoughts…

Usually, the police can hold you for <24 hours before they have to charge you with a crime or release you : not under Mental Health law ->

— THE AGENT APSLEY (@THEAGENTAPSLEY) December 25, 2014

-> Is it right that, just because one was in a public place and an officer *thinks* one has a mental disorder, detention can be for <72h ?

— THE AGENT APSLEY (@THEAGENTAPSLEY) December 25, 2014

The test of whether someone is ‘suffering from mental disorder’ is a subjective one, i.e. what appears to the constable. Fair enough, but how has the constable been trained to recognize ‘mental disorder’*, and does the constable even know what happened last time that he or she exercised the power (please see below for how often officers are wrong) ? If not, how does he or she know whether that had been a case of ‘mental disorder’ and so learn from it ?


Or should we even be putting a responsibility on the police to construe mental-health legislation and to assess the appearance of a person on public property as to whether there is mental disorder ? One has to ask, because (under s. 136(2)), the person with the appearance of mental disorder can be detained (i.e. against his or her will) for as long as 72 hours. Sub-section 2 specifies what that period of time – longer, by far, than the period for which someone can be detained, on such authority, because of suspected criminality – is to be used for :

(2) A person removed to a place of safety under this section 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.


The sub-section is therefore quite precise about what the purpose of the detention is, but the Act fails to make any link between sub-section 2, and exercising the power to take the person (against his or her will) to a place of safety under sub-section 1 : where is the link, except temporally, for up to 3 days in detention within which to arrange the specified matters ?

The Act is not explicit, but one is essentially looking at an assessment to see whether the person should be detained under ss. 2, 3 – but giving this period of 72 hours in a so-called place of safety to do it. As can be seen above, s. 136(1) refers to s. 135 in this connection for a definition, where s. 135(6) says :

(6) In this section “place of safety” means residential accommodation provided by a local social services authority under Part III of the National Assistance Act 1948..., a hospital as defined by this Act, a police station, an independent hospital or care home for mentally disordered persons or any other suitable place the occupier of which is willing temporarily to receive the patient.


Pretty broad, one would think – so why do commissioners of mental-health services not have standing arrangements with, say, independent hospitals for them to be places of safety in case of need ? Why, if NHS Trusts do not have the beds, is someone not paying for them to be provided in this way – somewhere that would also have staff trained to know mental disorder when they see it ?

And we are relying on officers on the street, etc., to determine what appears to be mental disorder, when – even if they could all be given training in Mental Health First Aid – it would probably be far better for them to call someone who is versed is mental disorder – except that we seem to jump straight to the ‘place of safety’, often enough a police-cell, and then no one stirs themselves, because the medical practitioner and / or AMHP (approved mental health professional) have three days in which to call by.


Would a police officer be trusted to move someone with a suspected broken neck in the back of a police-car ? No, of course not ! An ambulance would be called, and one would rely on those trained medical staff to deal with assessing the person’s injuries and moving him or her.

If there were a crowd or other situation, one would keep the person safe at the scene until the trained staff arrived, and then assist them in carrying out their duties or treatment on site and of taking the person to an appropriate hospital. Why – just because so many people view those who may have a mental disorder as nutters ? – should the status quo equally not be maintained until appropriately trained mental-health professionals can arrive, rather than ‘carting the person off’ ?

Allegedly, we have parity of esteem under the NHS (Health and Social Care Act 2012) for mental and physical health, so why is the person suspected of a breakdown not treated in the same way as for a broken neck ? So, X fell from a balcony in a shopping centre – we clear the area and keep him or her out of harm until the ambulance crew arrives – and the same should apply if X had been reported to be behaving bizarrely in that shopping centre, keeping X safe until the trained personnel come.


A Briefing Note by the Centre for Medical Health makes a point relevant to how s. 136 is being used, quoting this statistic given by a report from 2013 by Her Majesty’s Inspectorate of Constabulary, Care Quality Commission, Health Inspectorate of Wales, and Her Majesty’s Inspectorate of Prisons :

It also noted that 80% of those detained under section 136 are not admitted to hospital for treatment. This suggests an urgent need for better working relationships and knowledge between the police and mental health services.

Thus, in just 1 in 5 cases, the officer was right. Hardly a good enough percentage on the basis of which – even if it were not otherwise problematic – to continue as we are ?


But we must end as we began, with sage words - albeit of denial - from @MentalHealthCop... :

.@THEAGENTAPSLEY Did I ever say that?!
— Insp Michael Brown (@MentalHealthCop) December 5, 2014

End-notes

* If one wants to know what that phrase means, the much-amended s. 1 tells one…


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Unless stated otherwise, all films reviewed were screened at Festival Central (Arts Picturehouse, Cambridge)

The efficacy of what are called Community Treatment Orders (CTOs) - The Agent comments

More views of - or before - Cambridge Film Festival 2012
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15 May

I added this comment the other day to this, a report on the @Mental_Elf web-site (by Kathryn Walsh) called Community treatment orders fail to reduce psychiatric readmissions for people with psychosis :


One of the criteria for the trial is said to be ‘capacity to give consent’.

I wonder whether this is ‘a red herring’, if the seeming legal niceties of ‘putting someone’ (as it is often put) on a Community Treatment Order (CTO) are not actually observed.


From professional experience*, I believe that the legal opinion has been expressed that it is possible under Mental Health Act 1983 (as amended), and without a patient ‘applying for’ it, for him or her to be given section 17 leave to, say, a care home or a non-NHS specialist unit. (I am thinking of someone on s. 3.)

In theory, if hospital authorities needed to, ‘reasonable force’ could be used to oblige him or her to go. Forget how ‘untherapeutic’ that is, because the general regime of psychiatric units (e.g. locked wards, compulsion as to ‘treatment’ under the Act – usually an injection, and the dehumanizing environment and attitudes) can hardly be conceived of as therapeutic – or, when it is not that, it is cajoling, coercing, wheedling and blackmailing to seek (a form of) compliance.


Almost certainly, someone whose consideration for a CTO is ‘triggered’ by the Act (e.g. by application or referral to a First-Tier Tribunal, or at the time of contemplating s. 17 leave) will have been plenty depersonalized and demoralized by all of this already, before one even gets in sniffing distance of a formal meeting ‘to consider’ the Order.

Where the Principle of Least Restraint then (not least if no one cannot work out whether it is the CTO regime or that of s. 17, including the example that I gave above, that amounts to least restraint) ?


Patients who have already been brutalized by a place such as I describe (and will typically lack self-confidence and self-esteem), even if formally given the choice to consent to an Order [I understand that they aren't actually 'Orders', and the question of consent is more honoured 'in the breach', I gather], have no obvious reason to say No, when it means that they can go home.

(I believe that anyone would snatch at going home, whatever they are asked to agree to, because he or she (wrongly, I think, because not informed) assumes that it is that, or staying put.)

No reason obvious to the patients, then. If they were properly and independently advised as to (a) being able to say No, and (b) What, if they did say No, would be the Responsible Clinician’s (RC’s) options then, the position might be different :

If the RC cannot secure agreement from the patient to meet the conditions that are sought and / or the Approved Mental Health Professional (AMHP) won’t countermand the Order, there is still a position to fall back onto, i.e. s. 17 leave, or even discharge (since there no longer is supervised discharge).


But how many patients oppose a CTO ? How many think – more relevantly, are told – what happens, if they state openly that they will not comply with the conditions, rendering the notion of putting them on an Order ‘dead in the water’ ?

The RC has beds ‘to unblock’, considering a CTO is forced by certain events, but, if the patient is patently saying No, what will the RC do ?


So an Order is effectively dangled, and capacity to consent is really falsified : the patient is not allowed to weigh up whether to agree to the conditions for a CTO in compliance with the test under the Mental Capacity Act 2005 (as amended) simply because he or she is almost certainly not given the full information, which, if he or she had, could be understood and applied.

In truth, I think that the real scenario of a CTO coming about is having huge debts, but being marched down to a bank and told that you need a personal loan from that specific bank.


So not told any safeguards, e.g. that :

(a) the bank can advise only on its own products, and there may be other products

(b) even if the borrower won the Lotto that night and could pay back the loan, interest is charged up front;

(c) there are arrangement fees;

(d) the Bank of Mum and Dad is only too willing to help out, etc., etc.


Such a transaction, if challenged, wouldn’t stand up to the Financial Services Authority (FSA). For me, the way that CTOs are ‘secured’ is no better, but there is no adequate FSA, and patients affected are unlikely to have recourse to one, because they just ‘wanted to go home’.



End-notes

* There is a little more about that experience here in relation to mental health advocacy.


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