Review of the law

The 2017 amendments to the Mental Health Act 1983 (MHA) reduced the time that a patient could spend in detention in a place of safety under section 136 of the Act from 72 h to 24 h.¹ There remains an option to extend the assessment period for a further 12 h, but only in limited circumstances where the patient's condition is such that it would not be practicable for the assessment to be completed before the expiry of the initial period.^{1, Reference Crichton2} The fictitious scenario described above is becoming common in some areas of England and Wales owing to an increased use of section 136 by the police,^{Reference Cresswell3} coupled with an ongoing reduction in psychiatric beds.^{Reference Keown, Weich, Bhui and Scott4} Ideally, following a section 136 MHA assessment, the patient should be admitted informally, or detained under one of the civil sections of the MHA or the section 136 should be rescinded. In the situation described, where the patient requires admission under another section but there are no beds available and the section 136 has lapsed, the MHA and its Code of Practice do not provide a solution as to what should be done.

In the given scenario all the assessors agree that the patient lacks the capacity to make a decision as to admission or treatment. This gives rise to consideration of whether the Mental Capacity Act 2005 (MCA) can be used. Although the interface and differences between the MHA and MCA are complex, for our purposes it is important to note that they have different emphases and are not interchangeable.^{Reference Fanning5} The MCA makes the patient's capacity to make a decision its primary concern, whereas the MHA has a stronger emphasis on risk.^{Reference Fanning5,Reference Ruck Keene, Allen, Butler-Cole and Kohn6} There will be occasions when a patient may be subject to both the MCA and the MHA, for example a patient detained in a psychiatric hospital who lacks capacity to make a decision about their physical health,^{Reference Ruck Keene, Allen, Butler-Cole and Kohn6} but in the scenario we are facing this does not apply as the focus is on the person's mental disorder. As per paragraph 5 of Schedule 1A of the MCA,^{1,Reference Keown, Weich, Bhui and Scott4} a patient who would fall within the scope of the MHA cannot be detained under the MCA if they would object to mental health treatment.^{Reference Ruck Keene, Allen, Butler-Cole and Kohn6,7} This point was further made in the case of DN v Northumberland, Tyne and Wear NHS Foundation Trust [2011], where (though not party to the case) the Department of Health and Social Care had provided analysis (a policy rather than legal position) that:

Furthermore, the intention of the policy was that:

Therefore, in the scenario given, the Department of Health's policy advice suggests that the MCA should not be used to extend the person's detention. Logically, this should also preclude us from using the Deprivation of Liberty Safeguards (DoLS) introduced as an amendment to the MCA. It is worth noting that the DoLS regime is being replaced with the Liberty Protection Safeguards (LPS, introduced in the Mental Capacity (Amendment) Act 2019) as further amendments to the MCA. Within the amended MCA (which is not yet in force), section 4B references when a patient can be deprived of their liberty in an emergency. The four conditions needed prior to being able to utilise these powers are that:

In the circumstances described it would be difficult to argue that the use of these powers would constitute a ‘vital act’, examples of which are given in a new draft Code of Practice for the MCA, currently under consultation.⁹ Furthermore, there has been nothing so far to suggest that the Department of Health is looking to change its policy on the use of the MCA in this area. The recently released draft Mental Health Bill does not make any mention of changes to the period that a patient may be detained under section 136 and looks to abolish the use of police custody as a place of safety, which may potentially further increase the pressure on mental health services, thereby exacerbating the situation.¹⁰

There is no broad common law (also known as case or judge-made law) authority to deprive a person of their liberty in this situation either. Although neither the MHA nor the MCA specifically abrogate common law powers,^{Reference Hale11} in the case of R (Sessay) v South London and Maudsley NHS Foundation Trust [2011] (which concerned a patient refusing admission and who was felt to lack capacity), Mr Justice Supperstone held that ‘[t]here is no power to deprive patients, such as the Claimant, of their liberty in psychiatric hospitals under the common law doctrine of necessity’,¹² further stating that ‘Part II of the Mental Health Act 1983 provides a comprehensive code for compulsory admission to hospital for non-compliant incapacitated patients’.¹² This seems to preclude any reliance on the common law defence of necessity to extend detention in this instance.^{Reference Ruck Keene, Allen, Butler-Cole and Kohn6}

Holding a patient without proper legal authority means that they might be falsely imprisoned or unlawfully deprived of their liberty.^13,14 It is worth pointing out that false imprisonment and unlawful deprivation of liberty are not the same: although all cases of false imprisonment will result in an unlawful deprivation of liberty the converse is not always true.

False imprisonment is an offence at common law; the basis for false imprisonment was set out in the case of R v Rahman (1985), where it was held that the prosecution needs to prove the detention is:¹⁵

• • unlawful; and

• • intentional or reckless; and

• • a restraint of a victim's freedom of movement from a particular place.

Restraint can be physical, for example the locking of a patient in a room, as in the case of R v Linsberg and Leies (1905),¹⁵ or non-physical, for example by intimidation or threats of legal action, as in the case of R v Anthony David James (1997) – where although the defendant could have physically left the room, he was scared to do so.¹⁵

An unlawful deprivation of liberty would be a breach of the person's fundamental human rights under Article 5 of the European Convention on Human Rights.^13,14 In the case of R (Jalloh) v Secretary of State for the Home Department [2020] (an immigration case that pertains to detention) the court held that, when deciding on unlawful deprivation of liberty, it was important ‘to look at the restraint in question in the context of the whole picture: and a distinction between deprivation of liberty on the one hand and restriction on movement on the other hand is maintained, involving an assessment of the whole range of factors present, including nature, duration and effects of the restraint, the manner of implementation and execution and so on’.¹³ Depending on the circumstances and nature of the detention or restraint, once the section 136 has lapsed, it may be that the person is falsely imprisoned or unlawfully deprived of their liberty.

There is provision that in an emergency, when urgent life-saving treatment is necessary owing to an imminent risk to life, if the patient is not be able to consent and treatment would require restriction of their liberty (for example treating an unconscious person in an intensive care unit), it would not amount to an unlawful deprivation of their liberty.^{Reference Ruck Keene, Allen, Butler-Cole and Kohn6,16} However, similar to the discussion of emergency powers in the future MCA, in the scenario described it would be difficult to specify how clear or imminent the risks were and it would be somewhat tenuous to describe the chronic lack of mental health beds as an emergency, especially where the shortages have come about through political choices.¹⁷

The situation becomes even more complex when the patient is deemed to have capacity but is still felt to be a risk, either to themselves or others. Lady Hale (past president of the Supreme Court) writes on this topic, stating:

It should be noted that Lady Hale's comments speak to the patient's risk to themselves and not to others and if the latter risk is of concern, then the right to life in Article 2 in this circumstance may not be engaged.

Thus, an examination of the relevant law provides no definitive answer. As we have seen, the courts have tended to take the view that the MHA is comprehensive and have discouraged reliance on the MCA in similar circumstances. Furthermore, utilising the common law doctrine of necessity has been precluded by the courts, leaving us limited authority in law to continue the detention; however, it is possible that the courts’ position may change on this matter in future.^{Reference Ruck Keene, Allen, Butler-Cole and Kohn6} We address below what our suggested next steps should be in the clinical management of the patient in our scenario.

Reflections and considerations

Practical management

For the higher trainee on call, the first port of help would always be the consultant. Although they may not be in a position to provide legal clarity, the decision about the necessity for ongoing detention should be made collaboratively and demonstrate that the senior decision maker has been involved. Legal advice can be sought – National Health Service trusts have mental health law leads and also access to advice from solicitors on an emergency basis. Further advice can also be sought from medical indemnity organisations that doctors should be members of.

Once the decision has been made to continue the detention, the legal basis on which it is being continued needs to be documented. The patient needs to be informed of this, and if their rights are being abrogated then we have a duty of candour to the patient (or if applicable their carer, advocate or family member)¹⁹ to let them know that this has happened. The situation needs to be flagged on trust internal systems so that it can be monitored at the board level and help inform decisions about resource availability and bed numbers, as well as contributing to the development of guidelines to assist others faced with some version of this scenario. It would be sensible for a meeting to be held after the resolution of the situation^{Reference Ruck Keene, Allen, Butler-Cole and Kohn6} to see whether there were alternative actions that could have been taken and to help create a plan to avoid the situation in future.

In situations where the law is unclear and we are faced with ethical dilemmas, we can turn to guidance issued by the professional regulator¹⁹ and see whether there are answers in the bioethical frameworks within which we operate. In some situations, it may be that the patient is falsely imprisoned or unlawfully deprived of their liberty. The rationale for justifying the continued detention must be clear and start with the premise given in the General Medical Council's ‘Good medical practice’ guidance of making the care of our patients the first concern.¹⁹