Section 136 "Clock"

Scenario for you with an exam question! —

  • Someone is arrested for a minor crime whilst seriously mentally unwell
  • They are assessed MHA in custody and deemed to require admission under s2 or s3 MHA
  • There is no bed available for the forseeable future so no MHA application has been made.
  • The custody sergeant reaches the point where they must release the person from Police and Criminal Evidence Act (PACE) detention, because the only ongoing reason for detention is MHA admission
  • Upon release from PACE detention, the person is detained s136 MHA to avert imminent self-injury on release.

Let’s say this s136 detention in custody occurred at 10am: there is then a delay arranging conveyance to the MH Unit Place of Safety or A&E and the person eventually is removed from custody at 11am, arriving at the PoS or A&E at 11:30am. At no point, were any of the 2017 statutory criteria met for using a police station as a Place of Safety (risk of serious injury / death; PoS unable to manage ; police inspector authorising use of a police station, etc.).

The exam question: WHEN DOES THE 24hr “CLOCK” BEGIN?

My answer has always been: it begins upon arrival at the PoS or A&E because section 136(2) states the ‘relevant period’ begins when someone arrives at or is kept at a Place of Safety. In this scenario, the person detained was not being kept in the police station AS a Place of Safety, they were only held at that location where the power was first used for the time it took to arrange conveyance (however regrettable it may be that this took more time than anyone would like) - moreover, that police station cannot be used as a Place of Safety under any circumstances if the 2017 Regulations are not satisfied?

Reason for asking: it’s been argued that the “clock” would star ticking at 10am, if the above scenario ever unfolded and it’s could cause problems at the other end of the 24hr period if there has to be discussion about when the s136 expires.

Thanks for any views on this hypothetical situation.

(NB: for clarity / transparency: the bold text at the end of bullet point three was added after originally posting without that text - aims to clarify the situation in light of Nick’s response, below.)

1 Like

I would agree with your reasoning - i.e. the s.136 clocks starts on arrival at the PoS and whilst the person remains in the police station they are in the limbo of conveyance. It is unfair on the person (if we take the view that the primary criteria for ‘fairness’ is that the intention of statute to limit periods of detention is met), although in these situations it seems to me that whatever the law ‘intends’ is all too often overridden by necessity in any case. The approach to make it the least worst it can be, in my view, is that the PoS should be alert to the queue and ready to do the assessment a.s.a.p. (and of course source a potential bed) when the person finally gets to them from the police station. In theory there should be no reason for the PoS detention to have to extend for the maximum period. In practice of course there is probably a queue for a bed if the assessment decides one is needed, so PoS are holding people beyond the intended time anyway…

Just to add to the complexity of the hypothetical scenario, you say
“They are assessed MHA in custody and deemed to require admission under s2 or s3 MHA”, so 2 medical recommendations have been provided. If a bed subsequently becomes available, and the AMHP completes an application, would the person be taken there under the AMHP’s power to take and convey, or would they be transferred to the bed as a change of place of safety? The need for the 136 has gone, but there is no mechanism for it to be ended other than the person being seen by a Dr and an AMHP (I don’t think an application being signed would automatically end the 136, because the doctors examined the person before the 136 was imposed) ). So which section is actually in force when the person arrives at the hospital?

Ah, yes, my bad there as I had overlooked that the MHA assessment has already been made. I still agree in principle about the question of when the s.136 clocks starts, which was the focus of my earlier response. In this particular scenario, I think the s.136 would only be relevant at the point where the person finally gets to leave the police station if their destination is to a PoS as a kind of holding measure while the bed is found. Ideally a transfer would be under the terms of the application already made out to an actual bed, skipping that bit. So, if the police station is not a PoS within the meaning of s.135 in a situation where the person goes from the police station to a hospital admission, surely they were never taken to or kept at a PoS, and in effect the s.136 wasn’t exercised? Which leads us right back to the question of what was the authority to keep the person at the police station after release under PACE. Perhaps it is the case that the purported use of MHA s.136 in that situation doesn’t actually provide any legal authority anyway?

MHA assessment has been made but no application for admission has been made - so when the patient arrives at the PoS or ED the only legal section in force is the s136.

The scenario is the MHA assessment has been made but no application for admission has been made - so when the patient arrives at the PoS or ED the only legal section in force is the s136.

I never was that good at understanding exam questions.

Hello there, it may be stating the obvious, but I think until a case is taken to court to test the different theories, your approach is as sound as any other Mike.
As you say, the person isn’t being kept in the police station as a place of safety, (as s/he doesn’t meet the criteria) but has been placed on s136, so is in the equivalent of ‘transit’ to the HBPoS. During that period, the police have the authority to detain and convey, the person is in the legal custody of the police, but the clock hasn’t started because they haven’t reached the Place of Safety.

My only other thought would be that it would be important to evidence that custody were actively trying to move the person on to the place of safety (and have a process to record and escalate any concerns about unreasonable delay) so that if there were a challenge, it was clear the system wasn’t using the process to get around the expectations of the law.

Claire Barcham