Estimated reading time at 200 wpm: 20 minutes

From 2017 changes to the MHA 1983 reduced the period of detention under 136 from 72 hours to 24 hours, with a provision to extend to 36 hours. Mental Health Services had struggled to deliver when the timeframe was 72 hours. Now they struggle even more, leading to unquantified instances nationally where Trusts have had to resort to common law – a move that is ‘Back to the Past‘. This article provides an in-depth analysis of Section 136 of the Mental Health Act 1983, a crucial piece of legislation concerning the emergency detention and assessment of individuals experiencing mental health crises in public places. It outlines the process, implications of recent amendments, and potential legal challenges.

Table of Contents

• How Section 136 Operates
  • Section 136(2A): Commencement of Detention
  • Section 136(B): Extension
  • Outcome of Assessment
• Implications of the 2017: Time Reduction
• Lack of Beds: A root cause
  • Typical Scenario
  • Legal Alternatives After 36-Hour Limit
• Conundrums
  • Statutory Framework and Practical Challenges
  • Common Law and Black v Forsey (1987)
  • Human Rights Act 1998 and Article 5 ECHR
  • Rabone v Pennine Care NHS Foundation Trust (2012)
  • Conflict of Laws and a Gap in the Law
  • Legal and Systemic Risks
  • Comparative Perspectives
• Potential Legal Complications for Professionals
• Conclusion

How Section 136 Operates

Section 136 of the Mental Health Act 1983 grants police officers in England and Wales the authority to detain individuals found in a public place who appear “to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons.” [S136(1)].

A police officer cannot use Section 136 to remove someone from a private residence, including houses, flats, rooms where a person is living, or associated yards, gardens, garages, or outhouses [S136(1A].

The Mental Health Act 1983 (Places of Safety) Regulations 2017 introduced restrictions on the use of police stations as places of safety. These regulations state that a police station cannot be used as a place of safety for someone under 18. For adults, police stations can only be used in specific circumstances, including when:  

• The person’s behaviour poses an imminent risk of serious injury or death to the individual, or to another person, [S2(1)a(i)]
• No place of safety other than a police station in the relevant police area can reasonably be expected to detain the individual [S2(1)a(ii)]
• The decision to use a police station is authorised by a police officer of at least inspector rank.
• A healthcare professional is present at the police station throughout the detention and checks on the person’s welfare every 30 minutes. [S4]

Other provisions of S136 (click to popup)

Section 136(2A): Commencement of Detention

Section 136(2A) clarifies that the detention period begins when the individual arrives at the place of safety.

This provision has implications for mental health services, as it emphasises the need for efficient processes and prompt assessments to ensure that individuals are not held longer than necessary. It also highlights the importance of clear communication and coordination between police and healthcare professionals to minimise delays in transferring individuals to the place of safety.

Furthermore, this section underscores the importance of training for mental health staff involved in Section 136 assessments. This training should encompass various aspects, including physical health assessment, risk assessment, the safe management of disturbed behaviour, and the administration of medication, if necessary.

Section 136(B): Extension

In situations where an individual’s condition prevents a full assessment within the initial 24 hours, the detention period can be extended for a further 12 hours. This extension can only be authorised by the registered medical practitioner responsible for the individual’s examination.

Outcome of Assessment

Following the assessment, the AMHP and the doctors will determine the appropriate course of action. This may include:

• Discharge: If the individual is deemed not to require further detention, they are discharged. They may be offered voluntary support from community mental health services.
• Voluntary Admission: The individual may agree to be admitted to a hospital voluntarily for treatment.
• Detention under Other Sections: If the assessment concludes that the individual needs to be detained for further assessment or treatment, they may be detained under other sections of the Mental Health Act, such as Section 2 or Section 3.

Implications of the 2017: Time Reduction

Prior to 2017, the maximum detention period under Section 136 was 72 hours. This was reduced to 24 hours, with a possible 12-hour extension, by the Policing and Crime Act 2017. This change aimed to minimise the restriction of individuals’ fundamental rights and ensure they receive prompt assessments and treatment. The shorter timeframe makes it difficult to complete a comprehensive assessment, particularly in complex cases in NHS mental health services plagued by severe shortages of manpower.

Arising from the 2017 amendments is the increased emphasis on “street triage” services. These services involve collaboration between police and mental health professionals to provide on-scene assessments and support, potentially reducing the need for detention under Section 136.

Lack of Beds: A root cause

A significant challenge arises when a suitable hospital bed cannot be found for an individual who requires further detention after the Section 136 assessment, even with the 12-hour extension. This can lead to complex legal situations, as the individual cannot be lawfully detained under Section 136 beyond the permitted timeframe. This issue highlights the strain on mental health services and the need for increased investment in mental health services and improved bed management strategies.

Typical Scenario

If a patient arrives at a Section 136 suite (in a hospital), at say 10PM at night, emails sent out to GP or other services requesting information, probably won’t be read or responded to by 12 noon the next day at the earliest. These are just practical matters. This means that most cases would need an extension of 12 hours under S136B. But still 36 hours is a very short time to properly assess the patient directly and digest information.

It is important to bear in mind that people detained under S136 may be more distrubed than those presenting at an average S2 or S3 assessment.

Key Observations from the Table

1. Section 136 assessments are characterised by their unplanned nature, acute complexity, and time pressure, which create significant challenges for professionals.
2. Section 2/3 assessments benefit from prior planning, GP involvement, and more readily available historical information, making them more straightforward and procedurally robust.
3. The differences highlight systemic gaps in crisis intervention and the need for reforms to address the unique challenges of Section 136 cases.

I have reliable information that nationally there are many breaches of the statutory time frames. One of the big problems is that there is a serious shortage of beds. AMHPs won’t visit the patient to complete an applicaiton for detention even if two medical recommendations supporting admission have been made i.e. no beds usually means no AMHP.

Legal Alternatives After 36-Hour Limit

When the 36-hour limit following Section 136B is reached, and a bed is still unavailable, discharging the patient is not an option if they pose a risk to themselves or others. In these situations, exploring alternative legal frameworks becomes crucial each with its own legal implications:

• Mental Capacity Act 2005: If the individual lacks capacity to make decisions about their care, the Mental Capacity Act 2005 (MCA) may be considered. However, the MCA cannot be used to detain someone for mental health treatment if they object to it, when they could be detained under the MHA. For instance, if an individual who lacks capacity due to a mental disorder expresses a clear objection to hospital admission, they should be treated as if they have capacity and are refusing treatment. In such cases, detention under the MHA would be the appropriate legal framework.
• Common Law Doctrine of Necessity: This doctrine allows for the lawful detention of an individual in exceptional circumstances to prevent serious harm, even without specific statutory authority. Black v Forsey (1987): This 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. However Black v Forsey 1988 UKHL ruled that any use of it should be used with caution and only as a last resort. However, its application in this context is now defunct post-Sessay 2011, 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.

Conundrums

The situation regarding Section 136 of the Mental Health Act (MHA) 1983, as amended, and its intersection with common law principles and human rights law, raises several complex legal issues. Holding an individual without proper legal authority can constitute false imprisonment or unlawful deprivation of liberty, with potential legal consequences for the detaining authorities. Below is a robust evaluation of the situation, focusing on the conflict between statutory provisions, common law, and human rights law, as well as practical challenges.

Statutory Framework and Practical Challenges

• Section 136 MHA 1983: The reduction of the detention period from 72 hours to 24 hours (extendable to 36 hours under S136B) was intended to balance the need for urgent assessment with the protection of individual liberties. This timeframe is often insufficient for a thorough assessment, particularly when historical information is required, or when the patient is uncooperative or asleep.
• Practical Constraints: The reliance on external agencies (e.g., GPs) for information, combined with bed shortages and delays in AMHP (Approved Mental Health Professional) availability, creates a systemic bottleneck. This often results in breaches of statutory timeframes, leaving Trusts in a difficult position.

Common Law and Black v Forsey (1987)

• Black v Forsey: This case established that common law allows for the temporary detention of individuals who are mentally disordered and pose an immediate danger to themselves or others. The power is limited to situations where the necessity is “obvious” and must be justified post hoc. Lord Griffiths stated in Black v. Forsey that the power is “confined to imposing temporary restraint on a lunatic who has run amok and is a manifest danger either to himself or to others – a state of affairs as obvious to a layman as to a doctor.” The reference to “lunatic” in Black v Forsey is a stark reminder of how far mental health law and societal attitudes have evolved. While the case remains legally relevant, its language and reasoning are increasingly out of step with modern human rights principles and professional standards. This highlights the need for legal and policy reforms that reflect contemporary understandings of mental health and prioritise the rights and dignity of individuals.
• Application Post-2017: Trusts are increasingly relying on Black v Forsey to detain individuals beyond the 36-hour limit under S136, citing the lack of available beds and the need to protect the individual or others. This reliance on common law is problematic because it effectively circumvents the statutory framework of the MHA 1983, which was designed to provide clear safeguards and procedures for detention.

Human Rights Act 1998 and Article 5 ECHR

• Article 5 ECHR: The right to liberty and security is a fundamental right under the European Convention on Human Rights (ECHR), incorporated into UK law by the Human Rights Act (HRA) 1998. Article 5 requires that any deprivation of liberty must be lawful, proportionate, and in accordance with a procedure prescribed by law.
• Conflict with Common Law: The use of common law powers to detain individuals beyond the statutory limit under S136 raises significant Article 5 concerns. The statutory framework of the MHA 1983 provides a clear legal basis for detention, whereas common law detention is inherently less predictable and lacks the procedural safeguards of the MHA. This creates a risk of arbitrary detention, which is incompatible with Article 5.
• Positive Obligations: The HRA 1998 imposes a duty on public authorities to act in a way that is compatible with Convention rights. By relying on common law to override statutory timeframes, Trusts may be failing in their positive obligations under the HRA.

Rabone v Pennine Care NHS Foundation Trust (2012)

• Operational Duty under Article 2: Rabone established that public authorities have an operational duty to protect the right to life (Article 2 ECHR) for individuals under their care, even if not formally detained. This duty is particularly relevant in mental health settings, where individuals may be at high risk of suicide or self-harm.
• Implications for S136: Trusts may argue that detaining individuals under common law beyond the S136 limit is necessary to fulfill their Article 2 obligations. However, this creates a tension with Article 5, as the deprivation of liberty must still be lawful and proportionate. The lack of a clear statutory basis for such detention undermines its lawfulness.

Conflict of Laws and a Gap in the Law

• Common Law vs. Statute: The reliance on common law to override statutory provisions creates a conflict between two sources of law. While common law can fill gaps in statutory law, it cannot be used to circumvent statutory frameworks that are specifically designed to regulate a particular area (in this case, mental health detention).
• Gap in the Law: The current statutory framework does not adequately address situations where the 36-hour limit under S136 is insufficient due to practical constraints (e.g., bed shortages, delays in assessments). This creates a legal vacuum, forcing Trusts to rely on common law powers that are not fit for purpose in this context.

Legal and Systemic Risks

• Breaches of Statutory Timeframes: The widespread breaches of S136 timeframes expose Trusts to legal challenges under the HRA 1998, particularly for violations of Article 5.
• Judicial Review: Trusts’ reliance on common law powers could be challenged through judicial review, with courts likely to scrutinise whether such detentions are lawful and proportionate under the HRA 1998.
• Lack of Clarity: The current situation creates uncertainty for mental health professionals, who must navigate conflicting legal frameworks and make difficult decisions under pressure.
• Career risk: Time pressures arising from the 24 to 36 hour limit invite negligence (in law).

Comparative Perspectives

• International Standards: The UN Convention on the Rights of Persons with Disabilities (CRPD) emphasises the importance of avoiding arbitrary detention and ensuring that mental health laws are compliant with human rights standards. The current reliance on common law in the UK to fill gaps in Statute, falls short of these standards.
• Other Jurisdictions: In some jurisdictions, mental health laws provide for longer assessment periods or more flexible frameworks to address practical challenges. The UK’s rigid 24/36-hour limit under S136 may need reconsideration in light of these models.

Potential Legal Complications for Professionals

While the reduction in detention time under Section 136 aims to safeguard individual liberties, it also introduces potential legal complications for the professionals involved in assessments. The shortened timeframe, coupled with existing pressures on mental health services, can create an environment where thoroughness and accuracy may be compromised, increasing the risk of negligence claims.

How time pressure can increase the risk of negligence (in law – not lay carelessness):

• Rushed Information Gathering: Time constraints can lead to professionals cutting corners in gathering essential information. This might involve taking an incomplete history, failing to obtain sufficient collateral information from family or carers, or not adequately exploring the person’s mental state and risk factors. Such oversights can result in misdiagnosis, misinterpretation of symptoms, and failure to identify critical needs, potentially leading to inappropriate treatment decisions.
• Incomplete Risk Assessment: A comprehensive risk assessment is crucial for determining the level of risk posed by the individual to themselves or others. This involves considering various factors, including their past history, current presentation, and any potential triggers for harmful behaviour. Time pressure can lead to superficial risk assessments, where crucial details are overlooked, and the level of risk is underestimated. This can have serious consequences if the individual is discharged prematurely and subsequently harms themselves or others.
• Premature Discharge: The pressure to complete assessments within the limited timeframe can push professionals towards making hasty discharge decisions, even when further assessment or treatment might be necessary. This can be particularly problematic when there are delays in accessing inpatient beds, creating a sense of urgency to move the person on from the place of safety. Premature discharge can have devastating consequences if the individual’s condition deteriorates or they engage in harmful behaviour after being released.
• Inadequate Documentation: Maintaining clear and accurate records of assessments, decisions, and actions taken is crucial for demonstrating the rationale behind the care provided. This documentation serves as a vital defense against potential negligence claims. However, time pressure can lead to rushed and incomplete record-keeping, making it difficult to reconstruct the events and justify the decisions made. This can weaken the professional’s position if a negligence claim is brought against them.
• Impaired Judgment: The stress and fatigue associated with working under time pressure can impair professional judgment and increase the likelihood of errors in decision-making. This can affect various aspects of the assessment, from the initial interpretation of the person’s presentation to the final decision regarding their care and treatment.
• Illegal activity: Many Trusts believe that they are acting within the law by detaining people under common law. Their belief is wrong – so says the law. Doctors who are involved in in part of such detention or treating people under an illegal application of common law, are looking for trouble.

No one is saying that the above ‘will cause widespread negligence’. Risk is a probability of adverse outcome. Where systemic pressures arise from a legal frame work and is compounded by manpower shortages, the risk is obvious even if perceived to be low. When we’re dealiing with life and death, lower probability risks take on a higher significance. [See Tail Risk in Psychiatry (Nov 2023)]

Conclusion

Section 136 of the Mental Health Act 1983 is a vital tool for ensuring the safety and well-being of individuals experiencing mental health crises in public places. However, the recent reduction in the detention timeframe and the ongoing challenge of bed availability have created complexities for mental health services.

Navigating these challenges requires a thorough understanding of the legal framework, effective communication and coordination between agencies, and a commitment to upholding the rights and dignity of individuals experiencing mental health difficulties. The move towards eliminating police custody as a place of safety reflects a growing recognition of the need for a more therapeutic and less restrictive approach. However, this shift also places increased pressure on health services to provide adequate and timely assessments in appropriate settings.

The lack of available beds remains a significant concern, raising ethical questions about the potential for individuals to be detained in inappropriate settings or released without adequate care. This issue highlights the need for continued investment in mental health services, improved bed management strategies, and a focus on preventative measures to reduce the need for crisis care.

Professionals would do well to avoid risk desensitisation and take appropriate measures to avoid acting negligently in law under time pressures. Note that Bolam is a defence; not a carte blanche. This means ‘the law will do you first’ and it is up to you to mitigate or defend. It would be a poor defence to argue, “Parliament pushed me into negligence.” Lessons were learned from the case of Dr Bawa-Garba (not repeated here) who was sentenced to 2 years in prison when well known systemic pressures precipitated Gross Negligence Manslaughter.

There is a significant gap in the law, where the statutory framework of the MHA 1983 is inadequate to address practical challenges, forcing Trusts to rely on common law powers that are incompatible with human rights obligations under the HRA 1998. This creates a legal and systemic quagmire, with potential breaches of Article 5 ECHR and operational difficulties for mental health professionals.

The current reliance on common law powers to extend detentions beyond the statutory limits of Section 136 represents a significant gap in the legal framework for mental health detention in the UK. While the reduction of the detention period to 24/36 hours was intended to protect individual liberties, it has created practical challenges that have led to widespread breaches of the statutory timeframe. Trusts are increasingly relying on common law powers to manage these challenges, resulting in detentions that are longer than the original 72-hour limit and undermining the safeguards built into the MHA 1983.

This practice raises serious human rights concerns, particularly under Article 5 ECHR, and creates legal and practical uncertainty for both professionals and individuals. The conflict between common law and statute, combined with systemic issues such as bed shortages and delays in assessments, highlights the need for legislative reform and systemic changes to ensure that individuals are not deprived of their liberty for extended periods without proper justification.

Moving forward, it is essential to engage in ongoing dialogue and review of mental health legislation to ensure it remains fit for purpose in a changing landscape. This includes exploring alternative pathways to care, promoting early intervention, and addressing systemic issues that contribute to mental health crises.