Is it really warranted?
By John-Paul Anastasiadis
Section 135 (s.135) is not my favourite section of the Mental Health Act 1983 (MHA). I don’t know any Approved Mental Health Professional (AMHP) who relishes the thought of executing a s.135 warrant. Quite the opposite. We do what we can to avoid such an oppressive use of power. Section 135 warrants must rank as one of the most challenging and testing sections of the MHA ethically, practically and emotionally. The coercive nature of the Act, and the power we wield, is perhaps at its starkest and clearest to AMHPs when we are walking up the path to someone’s house with the police in tow, warrant in hand. The effects for the person and their family can be devastating.
I imagine myself in that position. People banging on my door, waking me up, possibly breaking my door down. Police and strangers entering my sacred space – what have I done wrong? Neighbours watching, whispering, recording the scene … Frightening, distressing, traumatising at the best of times. Let alone if I am already in distress and going through a crisis.
Whilst overall the number of detentions under the MHA has been increasing, the latest available NHS statistics(1) indicate that there was actually a 5.7% decrease in detentions in England between 2020-21 and 2021-22 (interesting statistic – this decrease coincided with the pandemic. I wonder if that was part of it?). This being the case, one might expect that there would have been a reduction in the number of detentions under s.135 over the same period. In fact, the most recent government figures (though they are experimental)(2) indicate that there was an increase in s.135 warrant detentions during the same period in England, with the number up 23% on pre-pandemic levels (2019-20) in England and Wales.
As far as many AMHPs are concerned, s.135 warrants are to be avoided as far as possible. And yet we – and it is only AMHPs who can get s.135(1) warrants – are getting them and using them more than ever. Why is this?
Less police capacity?
Paragraph 14.48 of the MHA Code of Practice indicates that there will sometimes be reasons why police assistance is necessary without a warrant. Whilst we may still ask police to attend occasionally on an ad hoc basis, there appears to be an understanding now that if we need the police to attend a planned MHA Assessment we are likely to need to get a s.135 warrant. Yet this has been the case for a number of years. It is difficult to see how this in and of itself could account for the recent rise in the use of s.135 warrants.
The switch to online courts?
The switch to online courts was already being introduced in some places before Covid-19 but the lockdown accelerated this change. If most AMHPs can now get s.135 warrants online from a kitchen table one could question whether we, and/or the magistrates/judges, could potentially lose some of the seriousness associated with a court hearing, putting the warrant application under less scrutiny. One would hope and expect this not to be the case.
The hospital (bed) crisis?
Though AMHPs will look for the least restrictive option, sometimes people need an admission to a mental health hospital. In such cases of urgent necessity, a hospital (bed) should be made available under s.140 MHA. However, as the AMHP Leads Network recently commented, there is a lack of availability of mental health beds which is contributing to severe delays and increasing risk for those in crisis(3). The lack of beds is a huge and growing crisis and is one that is not new(4) but it has become worse than ever in recent years.
Where an AMHP is unable to complete their application for a person’s detention under the Act because there is no bed this may increase the chance that a s.135 warrant is needed later to complete the process. In the past, if we went to the person’s house and the outcome of the assessment was that the person needed to be detained under the MHA, the AMHP knew that a bed would be forthcoming, even if this took a bit of time. We would wait and, once confirmed, we would complete the application and the person would be liable to be detained and we could arrange to transport the person to hospital. Nowadays, more than ever, the bed crisis means that we just don’t know how long it is going to take to get a bed. It can take very many hours or days, even when being prioritised by our health colleagues and escalated regularly by ourselves. The longer the wait, potentially the riskier for the person who may be getting increasingly distressed. And the riskier for the AMHP. As someone said recently, “It is hard for AMHPs to hang around inside someone’s property for hours waiting for beds when the patient is telling them to get stuffed”. It is potentially very risky, not to mention open to legal challenge.
As a way of pre-empting and avoiding these scenarios I wonder if AMHPs are more inclined to use s135(1) to bring the person in to a Place of Safety for the assessment rather than undertake it at the person’s home. At least that way the AMHP knows that the person can remain in the Place of Safety whilst a bed is found, perhaps mitigating some of the increasing risk. Even were it possible in the community to put a robust plan in place to mitigate the risk, we know that leaving the patient at home, whether alone or with others, when detention under the Act is considered necessary, can be terribly risky. Delays in beds can have positive outcomes at times, but people have died whilst waiting for a bed(6). And whilst a decision may be made in some cases based on risk, to delay a required assessment until a bed is available comes with its own risks – not least, in extreme circumstances, the person dying whilst waiting for a MHA Assessment in the first place.
And, if the assessment is taking place without a warrant and the AMHP had to leave before signing their application and a bed subsequently became available, the risk may have increased such that:
- If the same AMHP is able to complete the application, a s.135(2) warrant may now be necessary to get the person to hospital.
- If the same AMHP is not available and a different AMHP needs to interview the person, a warrant under s.135(1) may now be needed to facilitate this.
Lack of community support?
Budget pressures must be part of the reason for the cut in the number of mental health beds over the years. But if part of the rationale for cuts to inpatient beds is also around supporting ‘care in the community’ then this ideal falls short of the reality given that budget pressures extend into community services as well. This, and the lack of preventative and community support for the rocketing number of people experiencing mental distress in the wake of the recession and Covid-19, as well as a lack of community alternatives to hospitalisation, could ultimately mean that more people than would otherwise the case are reaching a crisis point to the extent that they need a Mental Health Act Assessment where, for some, use of s.135 warrant may be necessary.
Culture of getting warrants in London?
Government data(2) indicates that of all the detentions in 2021-22 in England and Wales, 53% of those were in London – up almost 7% on the previous year. This is despite only about 16% of people in England and Wales living in London. I imagine this could be linked to some of the reasons I’ve already mentioned, but also to what I hear anecdotally about a culture emerging in some London boroughs of very rarely completing a Mental Health Act assessment in a person’s home without a warrant. It begs the question as to why there may be such a culture and whether discrimination, prejudice and stereotyping play a role? Especially given that it is noted, for example, that 28% of those detained under s.135 MHA were Black, African, Caribbean or Black British, compared with around 3% of the population of England Wales as of the 2021 census(7) (and, interestingly, compared with 8% of those detained under s.136 MHA(2)). The high percentage of those detained under s.135 may in part be, as the government states, because most s.135 detentions were in London, which is more ethnically diverse(2). But the government also says that, excluding the London Metropolitan Police, people from a Black, African, Caribbean or Black British background accounted for 7% of detentions, and this is still proportionally higher than we might expect and does not account fully for the disparity.
What can we do?
If the use of s.135 warrants is on the rise for the reasons outlined above, there is a limit on what we can do to address this, but there are some things that we could try and some questions we could ask. For example:
When a community team makes a referral that suggests we may need to get a warrant, how much are we responding to this and pushing back, highlighting the oppressive nature of executing a warrant, and questioning what more they or we can do before accepting the referral? Do we see if someone will open the door to us, for example, even if they might not to their community team, for example, mindful of our powers under s.115 MHA – something which Rachel Rooke argues for(8)?
Do we make the effort to go to assess someone without a warrant in place when we believe an assessment is required? Are we using a blanket policy when we should be making personalised decisions, for example in relation to when we apply for s.135 warrants? If so, why? Are we going with a warrant because this is best for the person at the centre of it all, or because of resource difficulties and constraints or for other reasons? How can we best be challenging this? What questions can we be asking? What more can we do to address unconscious bias and question what is happening?
What impact can we make politically? Is there anything more we can be doing to petition for change? Are we always escalating matters when they arise, and asking questions, not merely accepting of them?
What else? Or, is it really warranted?
References:
4. https://www.communitycare.co.uk/mental-health-beds-crisis-special-report/
5. https://www.communitycare.co.uk/2016/09/26/mental-health-patients-detained-refusing-area-beds/
6. https://www.judiciary.uk/wp-content/uploads/2020/02/David-Stacey_Redacted.pdf