Section 136 assessments (England and Wales)

The College has provided an update on best practice for Section 136 assessments under the Mental Health Act, following a Coroner’s report. In 2022, a Coroner’s inquiry into the death of James Emerson challenged the practice of doctors discharging people who they assessed under Section 136 (S136) of the Mental Health Act (MHA) as not having a mental disorder before they had been interviewed by an Approved Mental Health Professional (AMHP). 

The Royal College of Psychiatrists, the Association of Directors of Adult Social Services (ADASS), and the Department of Health and Social Care (DHSC) were all asked to review any guidance they provided that is relevant to the case.

Following this, we are clarifying to our members in England and Wales, who work under the Mental Health Act, 1983 that:

• good practice is for S136 assessments should be carried out with an AMHP, and this would be in keeping with the wording of the purpose of S136 within the MHA 1983;
• local policies should be agreed with social services, as the College has no jurisdiction over AMHPs; and
• if an AMHP does not attend a joint assessment, the reasons should be clearly documented.

Further clarification of the case and the legal background can be found below:

The Mental Health Act 1983 states at s.136(2):

“A person [removed to, or kept at,] a place of safety under this section may be detained there for a period not exceeding [the permitted period of detention] for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an [approved mental health professional] and of making any necessary arrangements for his treatment or care.”

It is of note that the wording of the MHA uses “may” rather than “must”.  The use of the word “may” implies good practice but exceptions are permissible.

In contrast, the word “must” is used in the MHA 1983 Code of Practice (“the Code”), which states at paragraph 16.50:

“The authority to detain a person under section 135(1) or 136 ends as soon as the assessment has been completed and suitable arrangements have been made. This may include detention under part 2 of the Act, informal admission, an offer of community treatment or other arrangements necessary for a safe discharge Police powers and places of safety 16 149 including necessary social arrangements. If a doctor assesses the person and concludes that the person is not suffering from a mental disorder then the person must be discharged, even if not seen by an AMHP.”

The Code states in the introduction at paragraph IX:

“The Code describes legislative functions and duties and provides guidance. Whilst the whole of the Code should be followed, please note that where ‘must’ is used, it reflects legal obligations in legislation (including other legislation such as the Human Rights Act 1998) or case law, and must be followed.”

In the case described in the coroner’s report, the doctor followed the interpretation of the MHA 1983 as guided by the Code of Practice.  The Code unambiguously states:

“If a doctor assesses the person and concludes that the person is not suffering from a mental disorder then the person must be discharged, even if not seen by an AMHP.”

Further, the doctor followed the guidance which states that where the word “must” is used, the guidance must be followed.

Return to our April 2023 update.