Use of Section 136, post MHAA

There are various situations in which the police are either asked to consider use of s136 after the person concerned has already been assessed under the MHA or where the police themselves decide to do so. Just two examples, of many -

  • A patient assessed in the community, deemed to need s2 MHA admission but no bed available: Several hours or even days later, prior to a bed being identified and the application finalised, there is then an escalation of risk and the police are called to consider use of s136 to mitigate that risk.
  • A person is released from police custody after arrest for an offence, having been assessed MHA whilst in custody and deemed to require admission s2 MHA, but no bed available and no application finalised. Because there is obvious risk of self-injury after release and in the absence of a s2 application, officers consider use of s136 to mitigate that self-injury they reasonably anticipate.

Does anyone believe the use of s136 in those scenarios (or others where an MHAA previously occured with admission indicated, but no bed to make it happen) is UNLAWFUL? … or as an exam question: is it (ever) unlawful to use s136 where the person concerned has previously been assessed for admission under s2 MHA but where admission is delayed because of bed availability and then imminent risk is anticipated?

Thanks for any views.

I think the answer to the exam question is “No” and plenty of others have also said so. I’m asking because of a recent view the answer is “Yes”, which of course then begs the question: “are you saying you think that risk should go unmitigated?!” Genuinely open to being schooled on this.

Having more or less failed in answering Michael’s last exam question, I’m sticking my head above the parapet again.

I can’t see any reason that it would be unlawful to use s.136 just because there is a completed MHA application. I read the core criteria for 136 to be immediate need of care or control that makes it in the interests of the person or others that the person is taken to a place of safety. The examples fit this criteria.

Presumably, any argument against lawfulness is on the grounds that the purpose of detention at a place of safety appears, at s.136(2), to be enabling examination by a doctor and interview by an AMHP - clearly things that have already been recently achieved given a valid s.2 application is floating about. But the statutory criteria doesn’t assume that this is necessarily a MHA assessment - (or, if you like, all assessments to start with are potentially MHA assessments: what we think of as ‘a MHA assessment’ is in fact just what the completed process looks like for a valid application) - rather it is for “making any necessary arrangements for … treatment and care”. Like, for example, getting back to the ‘patient flow manager’ or whoever is prioritising the local admission waiting list and suggesting that things have reached a point where a bed really needs to be found now.

So I can’t see any hook on which the claim of unlawfulness can be attached…


I agreee with Mat and have very little to add to his analysis.
Clearly not ideal and blatantly a result of resource limitations, but unlawful?
Not in my view.
Many people who have been fully assessed under the MHA (2 docs and AMHP) but cannot be admitted due to a lack of an inpatient bed will need to see another AMHP, because the original AMHP is now off duty and no longer available to complete the application.
In fact some local authorities are now regularly reporting on this, which used to be a ‘never event’.

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