S136 suite detention

I have been contacted by an IMHA on behalf of a person in a 136 suite for nearly a week whilst awaiting a bed with med recs completed. They were told they couldn’t leave and were being held under common law!
Is it too simplistic to say that is rubbish, the 136 has expired and they are free to leave to go home? Any thoughts appreciated.

You are not being simplistic. Unless they have redesignated the suite as an inpatient bed (some hospitals do) and have admitted the patient under section, then there will be no legal authority for their detention, and it looks as though they may have been unlawfully detained for some days.
It seems clear this has not happened, otherwise they would not haven been told about ‘common law’, and would have been given their s132 rights.
As a side issue (but important nonetheless) , I wonder if the s136 suite has a bed and adequate washing facilities.

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They’re being falsely imprisoned by the mental health trust and it’s an article 5 violation, quite arguably.

Here an interesting question for you: if the patient used reasonable force to get out of where they’re being held - whether that involved damage to property or reasonable steps to move away staff who were attempting to prevent them from leaving - what offence are they committing by doing that, bearing in mind they can argue they are being unlawfully held by someone against their will and they’re entitled to use reasonable force to free themselves in self-defence.

If your ex-partner held you for a week in a bedroom and wouldn’t let you leave, they’d be arrested.

And there is a legal solution here for the trust - just make the s2 application to the hospital where the PoS is placed and detain the patient to that location - then it’s all unambiguously legal and beyond question. We know this has happened and that the CQC refer to it as a “swing bed”.

Common law isn’t a coverall justification for anything you want to do that you can’t manage to get done in the normal way!

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This is an interesting and contentious issue. As you may know, ‘common law necessity’ was used in the past to justify continued detention at a police station beyond the expiry of the PACE clock where the detained person appeared to be at immediate risk of serious harm. In the mental health context that has effectively been superseded by the power since 2017 to transfer them to a hospital-based place of safety under s.136 MHA.

Can common law necessity ever be used as a legal basis for continued detention in the place of safety following the expiry of the s.136 power, as in your case? Richard Jones says ‘no’, since Parliament decided to reduce the detention period from 72 hours to 24 (unless extended), meaning that any further detention beyond then would be subverting Parliament’s intentions & so unlawful.

I am not totally convinced. If the patient is clearly at immediate risk of incurring (or inflicting) significant harm if allowed to leave the place of safety, wouldn’t the staff’s duty of care mean that they should take all reasonable steps to prevent them from leaving? If so, unless the PoS is redesignated as an admission bed and a MHA application is made to it, as Steve has said, common law necessity might be the only available legal basis, . (Restraint under s.6 MCA might also be an option in some circumstances but would be equally contentious.) If it was challenged, a court would have to decide if it was lawful or not.

That said, even if I am right that common law might still be available in some situations, it would only be lawful if there were reasonable grounds for believing that the immediacy & seriousness of the risk justified the continued detention. In your case, the Trust would have to work very hard to justify keeping the person for several days, rather than a couple of hours. They would also have to address the human rights issues under Article 5 ECHR (the right to liberty).

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Hi Simon — is there available caselaw to read on that point about common law necessity beyond PACE? - I’m not aware of that having been argued before despite discussing the topic many times!

And in any event, surely it would only be lawful for a brief period until the proper statutory processes could be complete?

In this situation, there is a duty on the AMHP to complete an application and accepting the AMHP is paralysed by the NHS inability to identify which hospital, that all creates various questions about their broader human rights duties. Depending how the “fudge” is done to bridge a gap, it raises various A3/A5 questions; especially if the dubious detention is lasting for days and days.

And incidentally (hence another reply to keep things separate), some police legal advice is stating that use of s136 after release from custody would be unlawful if there has already been a MHA assessment, even if someone is at immediate risk of serious harm and even if there is difficulty identifying a bed for an admission application.

The police officers claiming this won’t say which barrister has advised it or share the advice(!) but are claiming it very confidently. If you look at this week’s release of s136 data by the Home Office, it should be very easy to spot which force.

I have been in this situation myself in the past more than once.

  1. They told me they were holding and detaining me as part of conveyance to hospital rules (don’t know what section). They said as there were valid med recs in place the could hold me in the 136 while waiting for a bed in order to “to keep me safe and know where I am so I can be conveyed to a bed as soon as one was found”. The said they could do this until the 12 days limit meant the med recs had expired. My solicitor send there was nothing we could do about this.
  2. The second time they section 2 me to the 136
  3. Third time they said they were detinning me under “common law for my safety and as a means to allow them to maintain my ECHR article 2 right to life”. My solicitor put in an application to Habeas Corpus review and 2 hours latter a bed magically appeared!
    Is Habeas Corpus review an option for you in this case?

Hya Desi
A week seems a bit excessive to be honest mate.

Surely the Sessay case made it clear that the MHA provides a comprehensive legislative structure for making decisions regarding detention of people with mental disorder. Therefore common law has no place, other than a very brief period to allow for the completion of the legal process.
I would also suggest that claiming a person can be detained for an extended period while waiting for a bed is a very dodgy argument. Section 6 provides authority to ‘take and convey’ the patient to the hospital named on the application. I would suggest it doesn’t provide authority to hold someone for days without any intention to ‘take and convey’ to the admitting hospital.

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It is unbelievable.If waiting for a bed change to section 2/3 but do not let it expire.

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Can I respond to Steve first? The ruling in Sessay that the MHA provides a comprehensive ‘code’ applies where the MHA provides an option. As you know, the issue in that case was whether the police could rely on the MCA or common law to justify her removal from home when a s.135(1) warrant could have been requested by an AMHP. The judge said firmly “no”. But I don’t think they meant that common law was not an option when the MHA does not provide a way forward, as in the situation we are talking about. As you rightly say, the judge expressly stated that in their view there would be no false imprisonment at common law or deprivation of liberty for the purposes of Article 5 ECHR if there was ‘no undue delay’ in completing an application, so they clearly implied that common law was potentially available if the person was not within the scope of the MHA at the time.

I think this is supported by the conclusions of Lord Goff in the HL case in the House of Lords (1998), where the issue was whether a patient who was admitted informally under s.131 MHA could be detained there, with no application having been made. His lordship concludes: ’ In the present case all the steps in fact taken by Dr. Manjubhashini (the treating psychiatrist) were, in my opinion, lawful because justified under the common law doctrine of necessity, and this conclusion is unaffected by her realisation that she might have to invoke the statutory power of detention.’ Thier Lortdships overruled the Court of Appeal, which had ruled that L should have been detained under the MHA.

That case of course provoked the decision of the European Court of Human Rights (HL v United Kingdom) that the ‘informal’ admission breached Article 5 ECHR, as a result of which s.131 can no longer be used to justify detaining someone as an inpatient without either their consent or a legal process e.g. DOLS. So to that extent their Lordships’ conclusion can no longer be sustained. But I do think it supports my view that common law can be used where a power under the MHA is not available, as the judge in Sessay says.

As I put in my first post, I completely agree with Michael that, if common law is still an option (and ultimately a court would have to decide this), it cannot be used in an open-ended way, as happened in the original query and to Taylor Birch. It would need to be very short-term.

All I am saying is that common law necessity could, in my opinion (and I stress it’s only an opinion), still be available as a defence to an action for false imprisonment, provided

  1. there are reasonable grounds to believe there would be an imminent risk of serious harm or damage to the person, or to someone else, if the person is allowed to leave;
  2. there is no alternative method available to address this risk;
  3. the use of common law is kept as short as possible, and the position is regularised under the MHA at the earliest opportunity.

Michael, you asked after case law. I haven’t been able to find anything on this exact point, though as you will be aware there is plenty written about common law in general, with Re F (Adult Patient: Sterilisation) (1990 being seen as a significant modern case. For what it’s worth, Lord Goff in the L case also cited R v. Coate (1772) Lofft 73; Scott v. Wakem (1862) 3 F. and F; and Symm v. Fraser (1863) 3 F. and F, “all of which provide authority for the proposition that the common law permitted the detention of those who were a danger, or potential danger, to themselves or others, in so far as this was shown to be necessary”. I do not have these cases at my fingertips and am not planning to track them down…!

Apologies for the length of htis post, and thank you for reading so far.

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Michael, I am very surrpised to read your second post about the barrister’s advice, that the use of s.136 after a MHA assessment would be unlawful. I don’t see it myself. Surely it’s the judgement of the custody sergeant as to whether the s.136 criteria are met? It does mean that the doctor & AMHP would need to examine/interview the patient again at the place of safety, which is irksome for them (though that doesn’t mean a fresh Mental Health Act assessment, in my view). But I don’t think that that inconvenience makes it unlawful.

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Simon, I hesitate to enter into a legal debate with yourself, but I do want to clarify a few things in relation to your post. I’m aware the Sessay case turned primarily on the unlawful removal of Ms Sessay from her home without a warrant under s135(1).
But a second factor raised by the judge was the length of time she was in the s136 suite awaiting assessment and admission, without any legal authority to detain.
I appreciate the different circumstances to the case above, in that there was no initial s136 detention in this case. However, surely there are strong parallels between the two cases once the lawful authority to detain had expired.
The judges in Sessay stated “We do not accept that there is any lacuna in MHA in relation to the period when a person is at the hospital pending an application under s.2 or s.4 MHA. Each case necessarily turns on its own facts. However in our view it is unlikely in the ordinary case that there will be a false imprisonment at common law or deprivation of liberty for the purposes of Article 5(1) ECHR if there is no undue delay during the processing of an application under ss.2 or 4 MHA for admission.”
So isn’t the corollary of this that there WILL be a case for false imprisonment at common law if there is undue delay.
The judges found 13 hours an unjustified delay in the Sessay case, so surely a delay of several days following the expiry of the s136 would be considered “undue delay”.
Parliament reduced the period of detention under s136 to 24 hours (max 36 hours) in the expectation that an admission bed would be found in that time, when necessary. Does resource limitation (lack of an acute bed) count as an acceptable reason for such a delay, to allow an effective common law defence?

Thanks, Steve. You are right, I should have added the ‘unlawful detention’ aspect of Sessay. You make a good point that it’s a pretty close parallel to the use of common law here.

I think in fact that we aren’t disagreeing. If (a big if) common law is available at all after the expiry of the s.136 period, on the analogy of Sessay, it could only be for a very short time- maybe an hour or so?- to permit the escalation of the urgent need for a bed, and then only if the risks justify it. It certainly can’t be relied on for days on end, as we have all said- that clearly breaches Article 5. In Sessay, even 13 hours was too long.

I appreciate that it’s undefined and risks being abused, as in the original query and in Taylor’s case. However, my concern is that if Jones’ view, that the patient always has to be allowed to leave after the expiry of the 136 period, is interpreted rigidly by Trust managers - as I fear it could be- the place of safety staff will be advised that they have no power to stop someone walking out in a floridly psychotic state and are believed to be highly likely to kill themselves (or someone else). That seems to me to be a greater worry. Where is their duty of care?

As you say, the time was reduced in 2017 from 72 hours to 24 on the basis that that time period would rarely if ever be exceeded. Sadly, as you know such breaches are now common, and seem to be increasing as admission beds continue to be closed. Yet another issue which leaves mental health professionals struggling to do the right thing in adverse circumstances, with no clear steer from central government.

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Sorry, I meant to write ‘… floridly psychotic state WHO IS believed…’

Thanks, Simon - I really don’t see it either, and nor does any other lawyer or anyone from any related profession, either. Because I’ve not been able to see the actual advice it means I can’t know precisely what question the barrister was asked or precisely how they answered that particular question. That’s often key, in my experience.

So my alarm bells ring and I’ve been told the reason is something like this “The purpose of s136 is to secure a MHA assessment (ie, for compulsory admission) and since the situation involves someone who has already had a MHA assessment, it would be a pointless repeat of what’s gone before and therefore, it would be unlawful.”

Various obvious problems with this -

  • Assessment under s136 is not a MHA assessment - or at least it doesn’t have to be.
  • It won’t be a pointless repeat anyway, because the situation will have changed since the MHAA was conducted X number of hours ago.
  • Crucially, since the MHAA, the person will have been released from the mitigating protection of arrest, at a point where there are concerns for their immediate safety.
  • You may well need further assessment (ie, under s136) to conceive a proper safety plan for how that patient will be supported in the community until the bed is eventually secured.
  • Will actually need further assessment anyway because it’s highly unlikely the AMHP on duty will be the very same human being who conducted the original MHAA and the new AMHP appointed to “sign the papers” will actually need to see the patient personally, to comply with s11 MHA.

So I will admit … I really don’t get the problem, whilst accepting fully the situation shouldn’t really need to emerge because we should have beds available to ‘section’ people when they need to be sectioned, but we’re not policing the world as it should be, we’re policing the world as it is.

Michael, I agree with everything you say. I’d add that s.136 isn’t only for the purpose of the examination & interview but also for making ‘necessary arrangements for (his) treatment and care’. As the arrangements have plainly not been made yet, the purpose behind the removal from the police station is not simply to duplicate what has happened already.

I’ll bow out now!

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The reliance on ‘common law’ in these cases is something that has concerned me for some time. As has been noted, this is regularly happening. It is also the case that patients in A&E, never having been subject to s136, are also being held equally as long without a legal framework. This can go on for a week or even longer - particularly (but not exclusively) where a CAMHS bed is needed. I have always understood these cases to be a violation of a patient’s Article 5(1) and 5(4) rights, precisely because of the HL judgement. I fully understand Simon’s point that there may be a slender margin of time where very particular conditions are met, that the common law of necessity may provide a defence - Sessay (possibly) indicating that as long as there is no undue delay the situation would not constitute a deprivation of liberty (the period constituting undue delay varying with the degree and intensity of restriction applied in each case). I am encouraged to see that Simon believes this can only be for a very short period, as this is what I had always thought would be the case. But, of course, we are regularly encountering longer periods. What exercises me is what ought to be done about this. It is clear that the State has a positive duty under Article 5, where it knows or ought to know that there is an infringement of a patient’s Article 5 rights (Stork v Germany 2005). The duty is to seek to reduce the restrictions to take it out of a deprivation of liberty. If that is not possible, then to seek to make the rights available by a procedure in law. Trusts, as far as I can see, therefore, should be turning the 136 bed into a “swing” bed. If they can’t, to fulfil their positive obligation, ought they to be seeking a declaration from court?

What I’m particularly interested by is if Trusts fail to do this (which they regularly do), does that positive duty equally apply to the local authority? The AMHP knows of the situation and knows how long it is continuing for as they are waiting to make an application. Presumably they are equally ‘the State’. If so, what action is to be taken? Safeguarding? Or even, the local authority, through a safeguarding process, taking it to court themselves?

I’m also interested by possible concerns regarding Article 3 in this context - having recently come across the Rooman v Belgium 2019 judgement, where “a lack of appropriate medical care for persons in custody is capable of engaging a State’s responsibility under Article 3”. This is the case where a person is in detention but not receiving appropriate treatment. I have known this to happen with a number of the patients held under the ‘common law’, for these extended periods. I know Rooman hasn’t been read into any domestic cases as yet (but mentioned in the Manchester v JS case).

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Sorry, Rooman was of course mentioned in SF v Avon and Wiltshire Mental Health Partnership NHS Trust (2023).