Cutting through thickets and a multitude of variations I discovered from real work - and confirmation from a ‘birdie’ - that S136 has become a basket of nightmares at S136 suites when there are NO BEDS!
In many necks of woods (and I have no hard data), when the 36-hour limit (via S136B) has been exhausted - what happens next? Discharge a patient who would otherwise be detained under S2 or S3? Of course not - we can’t just let people go off to kill themselves. That would breach operational duties to protect Article 2 Rights.
Scale
So - what’s happening is that Trusts (and I don’t know how many) have resorted to the common law. But my birdie has said this is happening commonly.
Apparently - Trusts’ policies on the matter of getting close to 36 hours, have expanded significantly, with all sorts of considerations, hoops to jump through, and people to notify. Sidebar: Are these people held in S136 suites counted in national waiting lists (publicised by The Times in 2024 at 2.5 million)? How would I know?
The Options
DOLS under MCA 2005: When an individual is detained under Section 136 and the 36-hour limit is reached without a hospital bed being found, DOLS may be a viable option if the individual meets some 10 criteria. We should all know that DOLS does not provide legal authority for treatment - but at least it applies the law where someone may need continuous supervision and monitoring.
The Doctrine of Necessity: Allows for the lawful detention of an individual in exceptional circumstances to prevent serious harm, even without specific statutory authority. Black v Forsey (1987) - the House of Lords case established the common law principle that allows for the detention of a person of unsound mind who is a danger to themselves or others, if necessary . This principle could potentially be applied in situations where an individual needs to be detained beyond the Section 136 timeframe due to a lack of available beds, but it should be used with caution and only as a last resort. However, its application in this context is debated, and it should be used with extreme caution and for the shortest possible time. There is concern that relying on common law necessity to extend detention beyond the Section 136 timeframe could undermine the legislative intent of the 2017 amendments, which aimed to reduce detention periods.
Unlawful Detention
Holding an individual without proper legal authority can constitute false imprisonment or unlawful deprivation of liberty, with potential legal consequences for professionals and the detaining authorities.
Conclusion
A *picture may say a thousand words. Back to the past - common law if all else fails. [*I own the copyright to the image so can share.]
I don’t think the government know how many “rules” are being breached and the extent of the crisis in mental health (or general medical) settings.
In my experience, many who should be on top of managing and future-proofing to avoid these situations have “grown up” only knowing how to fire fight, not been well-supported, and learn how to prepare responses to failing targets and trajectories (waiting lists, restraints, etc) which are not reflective of reality. The reality is that most want to make a difference and improvements but very few of those in “leadership” are actually able to influence or know how to effect change. The system is riddled with “disconnects” in the hierarchy. The culture is too heavily embedded in relying on everyone knowing that the NHS is in crisis - and there is a skills shortage - and breaches are just the norm.
There is little courage or ability to find accountability that impacts careers other than when a complaint is received that - at best - results in “lessons learned” and identification of training needs: because too often it really is no single indidivual’s fault. Of those allocated to conduct deep dive investigations within the system, very few actually know how to undertake an investigation that is more than “another task” they’ve been landed with.
Even we who have to navigate this system can’t believe our eyes. Those who are part of the system are drowning in it.
If they are patients who would otherwise be detained under s2/3, hospitals could do exactly that (if the forms have been completed, of course).
Legally, I can’t see why you need to have found a bed on a ward first. Admission is to a hospital, not a ward. s136 suites are part of a hospital. In the short term, s136 suites should be capable of providing “appropriate medical treatment” in most cases.
Far from ideal. But better that detainining unlawfully. Means legal certainty and rights for the patients.
I think the elephant in the room from Captain Walker’s original post is the catastrophic decimation of mental health services caused by gigantic austerity cuts to public health services. The NHS was least affected by this compared to local authorities and the welfare state. Demand for mental health services has increased massively over the last 10 years due to Brexit and other economic forces, Covid 19 pandemic, and social media sociological factors. Meanwhile, 3,500 mental health inpatient beds were cut in the NHS and CMHTs around the country cannot recruit nurses after Osborne’s 2017 axing of the bursary for degrees. Finally in 2017 the police forces nationally drove through the reduction in time for holding people under s.136 from 72 hours to 24 in the PACA. That was pretty awful timing.
How does all this affect s.136 post 36 hour detentions? The s.136 suites all over the country often have adolescents with autism/ADHD and emotional dysregulation issues, who cannot be discharged home and then have to stay in the suite until a bed is found. Other types of adult patients can often have the same experience. The lack of beds puts the system under impossible strain.
DOLS can only be used where the detained person lacks capacity and even then can only be used for risks to themselves, not to others (the MCA 2005 does not cover risk to others!). It is little wonder then that breaches, common law patch ups and unlawful detentions are so prevalent. The mental health system has been totally broken for some years. There will not be any new financial resources to put that right for many years. I’m afraid these “twilight zone” reactions are likely to continue in my humble opinion.
It’s an error to think this is about austerity (in the sense that most people mean public sector cuts from 2010 onwards).
The problem outlined in the OP is no doubt a more frequently problem now than previously, but this stuff was a problem throughout the Blair-Brown Labour government’s days the major difference being the police were all too willing to just keep unlawfully detaining people on behalf of NHS services who even then didn’t have enough beds to ensure timely admission; or if they did, weren’t using them efficiently enough to make it happen when required.
I think many people keep going on about cuts and lack of finances as an easy excuse to why MH services have failed.
As you can see with the VC case - simple things like good clear communication and united collaboration between each and every one of these services could make a massive difference without costing anything. If some of the services had a much more open, innovative and individual based approach to MH rather than resorting to temporary quick fixes with medication to treat those with a SMI as a massive large group then that would prevent future persons returning back into their care. Or, even alleviate persons who are deemed going through a crisis live wherever they are - without the need of them going to hospital under any warrant. The whole thing is a mess from top to bottom.
What makes it worse is that you have this silly legal framework that many people who are involved with; are completely gormless in how to apply it appropriately - because of that - you then get a situation where people who are actually deemed not meeting the criteria of any form of detention; get detained or assessed - taking up rooms that would probably be more suited to those who are requiring it. But as I said - are these places really a place where patients or citizens can go and be rehabilitated or treated to be better than before?
No - you just have to look at the Panorama documentary about young persons in Scotland being in a ward becoming abused by staff. This culture is rife in how all these hospitals are governed and the way the police including sadly AMHPs who are all equally discriminatory, corrupt and inept as each other towards anyone labelled as mentally unwell.
Just a simple thing as recruiting skilled personnel who can handle pressure, think and vocalise clearly into these roles could in itself be more effective than spending millions that leads to millions more mistakes.
No point asking for money if you don’t know how to use it.
Nobody is suggesting you should change your view, Neil - just ensuring you’re aware the things you attribute to post-2010 politics were happening, in large number, years before 2010. Pointing this out doesn’t mean I’m attempting to pretend the problem didn’t become much worse after 2010 - it obviously did.
I saw these things with my own eyes before 2010 and was involved in various challenges to people being left to rot in police custody for the want of a bed - it was weekly business in just my police force alone, so looked at nationally it must have been daily business and it’s probably now a 10,000 times a year proposition, give or take a few.
Hi Russell, as you imply, relying on common law necessity for more than a minimal period has been a no-no since Cheshire West, and possibly since HL (the Bournewood case). Though Trusts continue to cite it, unlawfully.
I am with Richard- if the Trust will agree to accept the section papers at the PoS there isn’t a legal problem (though it then creates a practical problem for local police among others as they cannot use the PoS for a future s 136). However, I gather that some Trusts refuse to do this.
The whole situation is a mess, which needs to be sorted, ideally by a combination of better community resources and more admission beds. But that all costs money, so I don’t expect such a solution any time soon.
In 1961, Minister of Health, Enoch Powell, in wanting to close psychiatric hospital, there were 0.5m beds.
The figures today are estimated to be between 22.K to 27 K given that the population continues to rise.
Some areas are reducing ward beds to 18. Don’t know why 18, it is not patient to staff ratio or COVID -19 restraints. Random figure.
The point here is that with further bed closures and lack of s. 136 suites, which in occupancy are usually two. The use of s. 136 will increase or ‘common law (?)’ to hold a patient seems abuse when the resource seems limited for admission any way.
With parliament debating the euthanasia bill, and if successful. Does the AMHP say, well you have capacity and you want to kill your self. Art 2. HRA (1998) is no longer applicable, sign the advance directive. But then again, for those patients whose only remit seems to be making ‘halo statements,’ to end life, s. 136 should not be used when the evidence suggests otherwise. Perhaps before any s. 136 is used, it should be made compulsory instead of arbitrary that an AMHP is consulted and not a CPN/OT/Psychologist on duty. Including street triage which is composed of a CPN.
Common law is not a thing here: there is a statutory framework and it needs following.
You can’t flip-flop to abuse of the MCA to cover the gap
Areas should have effective arrangements in place for urgent admissions, otherwise they cannot ensure protection of fundamental human rights but s140 doesn’t go far enough in ensuring those arrangements exist, beyond a paper-exercise and that’s assuming the LSSA complies with the duty! Many don’t and it’s un-policed by the CQC and / or NHS England.
All that can happen here (and arguably it should) is MHA application to the hospital where the Place of Safety is under s2 MHA and hold the person there until a ‘proper’ bed is found, then transfer them. This is, for example, what happened to Valdo Calocane in September 2022 when he was ‘sectioned’ - he spent nine days in the Place of Safety until a PICU bed could be found.
We need a far more robust culture of people who trot out “common law” being challenged for making things up and being complicit in violating the fundamental rights of patients - there’s no doubt that’s what it amounts to.
Almost finally(!), AMHPs in this position probably need to think about what the High Court judge said in the Surrey v PC ors ruling last year. The police brought an action because someone was rotting away in custody and the judge remarked the LA had a greater responsibility than was reflected in the actions leading to the hearing.
Actually finally, there have been PFD notice about failing to consider the PoS option as a swing bed, where a man went on to die by suicide - that must be a hard time giving evidence before a patient’s family. “Yes - I could have done this thing which would have protected your loved one, but I didn’t and there isn’t really a reason why it couldn’t have happened.”
For me I think that says it all. Someone like VC needed to be locked up in jail or deported back into their own country rather than be given special privileges for 9 days waiting for a PICU bed.
I’m catching up, as I’ve been away wrestling with decimated NHS services that have been spinning themselves madly.
The Section 136 situation is probably the tip of some iceberg. This weekend gone I heard ‘down the wire’ that very strange stuff is happening in A&E departments for mental health patents not on S136. Nobody knows or cares how mentally unwell patients are being held there. I’m in the process of drafting FOIA requests to CQC and NHS England. I’m open to suggestions.
When in the infographic I said ‘Back to the Past’ - that’s really what’s happening. Imagine in a post-HRA 1998 era, after all the consolidation of common law into the MCA 2005, and revisions of the MHA 1983 via all sorts of side-doors, we see people’s rights being trampled upon. Hang on a sec - what am I saying? I’m living and working in a Nation that was at the forefront of Human Rights development. But lately […] Some must be wondering 'What on Earth any of that has to do with S136?" I has everything to do with it! How? There is a tide of anti-Rights washing down from atop. Look up! The wash is ‘Back to the Past’. Internatonal law? What’s that!
The situation is this - and the evidence lives only in the minds of a few astute psychiatrists who dare to raise their heads above the parapet. That’s DANGEROUS! So from behind closed doors, the S136 situation is a mess.
On occasions the police will hoik someone out of their dwelling in breach of S136(1) and they will then call it ‘S136’. Such detained persons will be brought to a S136 place of safety - illegally I dare say. Nobody dares to question the police as to the legality of the S136. You don’t want to ‘challenge’ the police unless you want to attract the risk of being stopped and searched nationally. Nobody will say it - but that’s the real fear. So Trusts are asking no questions about meeting S136(1). For those illegal S136 detentions, Trusts accept them blindly - then the first 24 h limit is breached without consideration of the 12 hour extension [S136B].
Illegal at point of entry or not - the 36-hour limit is regularly breached. Many Trusts around the land have been advised by cub lawyers to act under common law, citing Black v Forsey 1987 or 1988. But Trust workers who will bawl “I’m not a lawyer…” are not going to exert any effort reading or checking what case laws says. Long story short: Sessay 2011 has been very clear on the legal principles applied, that says basically ‘the common law is out of it’. But we’re even deeper back into the past - back to the 1960s actually - when Milgram showed how the humans are influenced by power and authority. And not to mention - which is to mention - you just don’t bite the hand that feeds in the lead up to the next major economic crisis. You must preserve ‘your food’. Sure nobody says that - but I see the looks in their eyes. And so a conspiracy of silence is perpetuated by FEAR!
In reference to Michael’s comment ’ common law in not a thing here…’ Perhaps he can enlighten me further since I am a Layperson in this.
For me, where there is an aged framework/statute, it is then governed by case law. Thus, case law shapes what the statutory service does. This includes the Code of Reference and the Code of Practice for Mental Health (R (Munjaz) v Ashworth Hospital (2005) which should always be applied. To follow an aged act which it’s inception was from 1930 is not being realistic.
I also wanted to share a case study in reference to s. 136 MHA (1983). So, the Police arrested an asylum seeker under which I assume was PACE since details were not being shared fully. The patient was deemed to be mentally unwell. Instead of asking an MHAA whilst in custody, they decided to use s.136 to take patient to HBPoS knowing there wasn’t one available. Resulting in the Police having to wait for several hours to empty the suite out. The logic of this?
