s136 is used and the person then has a medical episode - which may or may not be related to a pre-existing condition (as the overdose they have taken can cause the same symptoms of their medical condition). At A&E informed the clock has now “stopped” and will re-start once the person is medically fit. Police being asked to remain. Looking at the Richard Jones manual confusingly…
Any advice?
The clock for s136 doesn’t stop so that’s sounds like a very unusual interpretation of things. It can, of course, be extended from 24hrs to 36hrs if the patient’s condition means they can’t be assessed so if the person has had their medical episode post-arrest but pre-assessment, consideration could be given to authorising the extra 12hrs to enable MHA AX once the medical episode is over or handled and they are well enough to be assessed by the AMHP / DRs.
I have known situations where the entire 36hrs expires without the person becoming medically well enough to be MHA AX by the AMHP / DRs but in all of them, the medical situation (often an OD) meant they required admission to a medical unit for further treatment and monitoring. So the s136 could expire and MHA AX take place on the ward once fit and if by then there was an issue about the patient leaving the unit, section 5 could be considered afresh.
And since you mention the police: you can expect them to look again at whether they’re obliged to remain once the 136 has expired or once the person becomes an inpatient, if admitted to a medical ward where MHA AX will be delayed.
Does that help?!
Massively - so I wonder where have health got this notion of the clock stopping?
Maybe they’ve just heard (or mis-heard) a rumour that the clock stops and they’re making things or confusing this with something else … the clock does stop with the police for prisoners under arrest for an offence. Maybe the officers said something about that as well / instead and there was a misunderstanding?
Not sure - but good luck with it!
I think someone in A&E told them, but I have just reminded them that it isn’t PACE! Have advised officers to leave as the patient has been on a medical ward some time, and is not physically able to leave.
What Michael has said is of course correct, in England at least. However, there might be understandable confusion on behalf of a hospital if it is in Wales. The MHA Code of Practice for Wales says, at 16.46:
If, in exceptional circumstances, a police officer needs to take a person to an emergency department after detaining that person under section 136, for the emergency medical assessment or treatment of their physical health, this should not be treated as an admission to a place of safety. Detention under section 136 will begin when the person is taken to the appropriate place of safety for the assessment of their mental health.
I understand that this was Richard Jones’ view when the Code was published in 2016.
However, the 2017 ‘Guidance for the implementation of changes to police powers and places of safety’, issued following the amendments to the s.136 powers and applicable in both England and Wales, says the opposite at para 4.4:
If a person subject to section 135 or 136 is taken first to an Emergency Department of a hospital for treatment of an illness or injury (before being removed to another place of safety) the detention period begins at the point when the person arrived at the Emergency Department (because a hospital is a place of safety).
The introduction to the 2017 guidance says at para 1.5:
Both England and Wales have existing statutory Codes of Practice in relation to the 1983 Act. These statutory Codes of Practice remain in force and healthcare professionals must continue to have regard to the Codes in the exercise of their functions under the 1983 Act (although where there has been a subsequent change in the legislation, this may be a good reason to depart from what is set out in the Code).
So until the Code in Wales is amended, there are two forms of guidance in force, both expecting to be followed, but saying contradictory things. To complicate matters further, the Code is ‘statutory’ guidance (i.e. there is a high degree of expectation that it will be followed), but the 2017 guidance is not.
I think the Government would expect the 2017 guidance to take priority- note the encouragement to ‘depart from the Code’- but unless this message has been given clearly by Welsh Ministers to their hospitals, Health Boards etc , A & E staff and others can be forgiven for continuing to follow the advice they would have received when the MHA Code was revised in 2016.
Both Codes of Practice need revising and updating, but I imagine this won’t happen now until the current Mental Health Bill passes into law, so the ambiguity in Wales will continue for a while longer.
For what it’s worth Simon, I can confirm that such direction (to depart from the Code) was given when that 2017 guidance was issued. Note 4.4 of the 2017 non-statutory guidance was issued because I wrote, on behalf of the College of Policing and the National Police Chiefs Council to the Home Office, DHSC and WAG to reconcile the apparent or perceived contradiction in 14.64 that you highlihght from the Welsh Code and para 16.26 of the English code which provides the clock begins at the first place of safety.
The College argued those tow provisions in those two Codes either contradict each other or are ambiguous enough to create that impression and asked for clarity so College guidance on the s136 timescale / clock could be given across England and Wales, given that Codes don’t change the law and the law on detention is s136(2) (or s135(3), for section 135(1) warrants).
The note 4.4 Simon refers to is the product of that and it was accepted by WAG after HO/DHSC discussions and I saw the email which went out from WAG saying so - that said, one particular ED in Wales almost immediately said something profound in rejection of that guidance and continued to insist time spent in ED at the beginning of a s136 period did not count to the “relevant period”.
Clear as mud! - and since everyone has been dreaming of a new MHA with a new Code since 2017/18, it was never going to be resolved or updated, was it?!