Psychiatric Bulletin (2001) 25: 388-390. doi: 10.1192/pb.25.10.388
© 2001 The Royal College of Psychiatrists
Psychiatric Bulletin (2001) 25: 388-390
© 2001 The Royal College of Psychiatrists
Ambiguity in Section 136 of the Mental Health Act 1983
A survey of Section 12(2) approved doctors in the West Midlands
Laofe Ogundipe, Specialist Registrar in General Adult Psychiatry
Lyme Brook Mental Health Centre, Bradwell Hospital Site, Newcastle
Femi Oyebode, Medical Director
South Birmingham Mental Health Trust, Edgbaston, Birmingham B15 2TZ
Amanda Knight, Research Assistant
The Foundation NHS Trust, Corporation Street, Stafford ST16 3AG
Correspondence: correspondence: Deramore, Ercall Heath, Nr Newport TF10 8NQ
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Abstract
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AIMS AND METHOD
To investigate the interpretation of Section 136 of the Mental Health Act
1983 by Section 12(2) approved doctors and to describe a pathway that
facilitates early assessment of people detained under Section 136. We surveyed
a random sample of Section 12(2) approved doctors in the West Midlands.
RESULTS
A response rate of 70% was achieved. Approximately 65% believe that it
would be illegal to transfer a person under Section 136 from the police
station to a further place of safety, such as hospital. Thirty-five per cent
believed that this could be done legally or were unsure.
CLINICAL IMPLICATIONS
Ambiguity still remains about the legal interpretations of the provisions
of Section 136 of the Mental Health Act 1983, which needs to be rectified.
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Introduction
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Section 136 of the Mental Health Act (MHA) 1983, which allows the police to
remove people who may be suffering from mental disorder from a public place,
remains controversial. There are concerns that it empowers a police officer,
often without any psychiatric training, to detain a person with mental
disorder. However, the relevant section of the Act is silent about the
legality of transferring that person from a police station (a place of safety)
to a hospital (another place of safety) under the Section. The Code of
Practice (1999) discourages
transferring a patient from one place of safety to another: "Once the
person has been removed to a particular place of safety, they cannot be
transferred to a different place of safety." This is reiterated by The
Maudsley Guidelines (1999). It
has been accepted, therefore, by most NHS trusts in England and Wales that
patients cannot be transferred from one place of safety to another. This
delays the disposal of people detained under the Section.
Historically, it was not considered illegal to transfer a person from one
place of safety to another more suitable place of safety, and this used to be
the practice in the London area in the 1980s:"... in many districts in
London, it appears that mentally disordered persons are picked up by the
police from public places, taken to the police station where the necessary
Section 136 papers are completed, and then taken to a hospital to be assessed
by a doctor and a social worker"
(Dunn & Fahy, 1987). This
would be appropriate particularly when the need for detention was for the
treatment of mental disorder rather than the control of dissocial behaviour.
Whether a transfer from one place of safety to a more suitable place of safety
under Section 136 of the MHA 1983 legislation would be legal remains unclear.
Arrangements usually exist locally for designating places of safety, but would
it be legal to transfer a patient from one place of safety to another that was
considered to be more appropriate? There is no direct reference in the 1983
Act itself about a transfer of a person from one place of safety to another
more suitable place of safety but the Codes of Practice discourage it.
However, the Codes of Practice to the Police and Criminal Evidence Act 1984
(Revised 1999) advise police offciers not to "delay the transfer of a
person to a place of safety under Section 136 of the MHA 1983 where that is
applicable". This implicitly means that a transfer under Section 136
from one place of safety to a more appropriate place of safety may not be
against the spirit of the 1983 MHA. The lack of clarity about how best to
interpret the provisions of Section 136 has been highlighted previously
(Dunn & Fahy, 1987;
Rassaby & Rogers, 1987) but
it remains. We therefore conducted this survey to investigate how clinicians
deal with this ambiguity in day-to-day practice.
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Method
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Design
The study was designed as a cross-sectional, questionnaire survey of
Section 12(2) approved doctors in West Midlands, England. Included in the
survey was a randomly selected sample of the 597 doctors on the Section 12(2)
register in the region as of May 1999. Any randomly selected doctors who were
unavailable during the study were excluded. We used a two-question instrument
designed for this study. This instrument requests the doctors to identify
whether "the 1983 MHA allows people detained under Section 136 to be
transferred from a police station (a place of safety) to hospital (a place of
safety) under this Section". Secondly, if they consider that this is
illegal under the 1983 MHA, "whether the new MHA should make a transfer
from one place of safety to another legal".
Sample size
When Section 12(2) approved doctors in the region were surveyed
(Bhatti et al, 1998),
46% were unable to define precisely the mental illness as contained in the
Act. We assumed that a similar proportion may be unaware of the legal status
of transferring a patient from one place of safety to another. We set out to
survey the doctors with a precision of 10%. We therefore calculated that a
sample size of 99 would be required. This sample size is more than 16% of the
Section 12(2) approved doctors in the West Midlands, therefore by using the
finite population correction (Moser &
Katton, 1979) an adequate sample size for this survey would be
85.
Procedure
The regional list of all Section 12(2) approved doctors in the West
Midlands was used as the sampling frame. By simple probability sampling, we
identified a random sample of 150 doctors from the list. We sent out a short
questionnaire to the addresses of the doctors given on the register. No
reminders or prompts were sent to the doctors to reply because an adequate
response rate was achieved. We calculated the proportions of the responses in
each group along with the confidence intervals.
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Results
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Of the 150 doctors surveyed, 106 (70.67%) replies were received and 15 of
these were returned uncompleted because the doctor was on long-term sick
leave, retired or no longer at the hospital. Seventy-five were psychiatrists,
most of them consultant psychiatrists, and the remainder were general
practitioners (GPs) or police surgeons. Approximately 65% (64.8%, 95%
Cl=55.71-73.89%) did not believe that a Section 136 detainee can be
transferred legally from one place of safety to another under the Section.
There is no difference between psychiatrists and GPs/police surgeons in this
regard. But with respect to the reform of the Act, relatively more GP/police
surgeons than psychiatrists believed that the new Act should make it possible
for a person detained under Section 136 to be transferred to a hospital under
the Section. The majority of psychiatrists do not want the new Act to allow
the police to transfer people detained under Section 136 to hospital under the
Section, but the majority of GP/police surgeons would like the new Act to make
this possible. This difference is statistically significant
(P=0.047).
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Discussion
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The majority of Section 12(2) approved doctors in our survey follow the
Code of Practice and had not been advising the transfer from a police station
to hospital of people detained under Section 136. This may lead to people
being detained in the police station longer than necessary (to convert Section
136 to Section 2 or 3). A significant minority of 34.8% (95% Cl=25.71-43.29%)
were either unsure or advised transfer in order for the detained person to
gain faster access to mental health care. Whether approved social workers
would be more unanimous in their view about the legal status of such transfer
is unclear.
Nevertheless, this survey demonstrates the need for parliament to make
clear its intention about the treatment of people found in public places, by
the police, who appear to be suffering from mental disorders. Early access to
mental health care of people detained under the Act can be achieved if the
legislation is clearer in allowing the transfer from one place of safety to
another using the same Section under which the person was detained. This will
empower the police to transfer people from the police station to a hospital or
directly from a public place to a hospital, although this may pose a problem
of inappropriate admissions. It is notable that the police have not been found
to substantially abuse ‘police power’ of arrest of people with
mental disorder under the 1959 Act
(Kelleher & Copeland,
1972), nor under Section 136 of the 1983 MHA
(Mohktar & Hogbin, 1993). A
pathway is suggested (Fig. 1) to avoid such inappropriate admissions. The police surgeon will be required to
discuss the matter with a consultant psychiatrist, and both doctors will agree
to the appropriateness or otherwise of further psychiatric assessment either
in hospital or at the police station. In the former case, the police should
transfer the person to hospital under Section 136 within 24 hours of arrest.
In the latter case, the person should continue to be detained under Section
136 until the consultant psychiatrist arrives for further assessment. The
person then should be discharged or admitted under Section 2 of the MHA, this
being completed within 36 hours of arrest.
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Fig. 1. Pathway to achieving early assessment of people detained under Section
136 of the Mental Health Act 1983
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Conclusion
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Clinical practice with respect to the disposal of people detained under
Section 136 of the MHA 1983 differs between clinicians. This is due to the
perceived ambiguity in the legality of transferring people from one place of
safety to another, even if the second place of safety is deemed to be more
appropriate. Perhaps the new MHA should make explicit the intention of
parliament with respect to the legality of a transfer from a place of safety
(e.g. a police station) to another, more appropriate, place of safety (e.g. a
hospital) of people found in public places who may have mental disorder.
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Acknowledgments
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We thank Dr Mike Jorsh, Consultant Psychiatrist, and Dr Martin Gee,
Consultant Psychiatrist, North Staffordshire Combined NHS Trust,
Stoke-on-Trent, for their comments on earlier drafts of this paper.
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References
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BHATTI, V., KINNEY-HERBERT, J., et al (1998)
Knowledge of current mental health legislation among medical practitioners
approved under section 12(2) of the Mental Health Act 1983 in the West
Midlands. Health Trends,
30,
106-108.
CODE OF PRACTICE (1999) Mental Health Act
1983. London: The Stationery Office.
DUNN, J. & FAHY, T. (1987) Section 136 and the
police. Bulletin of the Royal College of
Psychiatrists, 11,
224-225.
KELLEHER, M. J. & COPELAND, J. R. (1972)
Compulsory psychiatric admission by the police. Medicine, Science
and the Law, 12,
220-224.
THE MAUDSLEY GUIDELINES (1999) The Maze;
Mental Health Act 1983 Guidelines. London: Bethlem and Maudsley
NHS Trust.
MOKHTAR, A. & HOGBIN, P. (1993) Police may
underuse section 136. Medicine, Science and the Law,
33,
188-196.
MOSER, C. A. & KATTON, G. (1979) Survey
Methods in Social Investigations. London: Buttler and
Tanner.
RASSABY, E. & ROGERS, A. (1987) Variations in
disposal at different places of safety. Bulletin of the Royal
College of Psychiatrists, 11,
78-81.
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Abstract
Introduction
