What does ‘not-detainable’ really mean?

Photo Credit: Photo by Brett Jordan on Unsplash

By Daisy Long

It’s interesting that over the years discussions between AMHPs and our s12 colleagues have changed in response to the ever-decreasing alternatives to admission. Over the last decade or so, I suspect that the likelihood of admission carried out based on nature (i.e. to prevent a predictable relapse for example) is as rare as hens teeth – in most areas we don’t have the resources needed by those at acute immediate risk, let alone those that might be risky in a week or so (probably), and who would choose one of our acute inpatient units as a place to recoup and recover anyway? Something we can all agree on is that not all our wards are ideal environments for recovery.

Increasingly, the discourse has shifted from nature or degree, and over to ‘is P detainable?’ and I’m pretty sure this is a defensive mechanism rather than a reality. It might not be a popular view, but I find the idea that someone presenting in mental distress, with self-harm, suicidality and/or trauma responses, doesn’t meet the criteria and is ‘not detainable’ often rolled-out to maintain the ‘me expert you idiot’ type of thinking that our mental health services seem to be built on.  

Has anyone read section 1 recently? Any disorder or disability of the mind – that’s a pretty broad definition by anyone’s standards, and it can include, well, pretty much everything. The question we should be asking isn’t “can we?” (hint – the answer is usually yes), but “should we?”, and we need to be able to say that out loud and be accountable in these decisions, not hide behind the meaning of ‘appropriate’ to prevent the Mental Health Act being used.

It seems that in more recent cases before the courts, our judicial colleagues are also starting to call out the myths and legends surrounding the use of the MHA and how professionals are using the Act to exclude people who are sometimes in extreme distress. For example, several Regulation 28 prevention of future deaths (PFD) reports have highlighted that people with personality disorders, trauma and neurodivergent presentations are routinely not being provided with the NICE recommended treatments for their presentations (for example see – Ryan Evans, 2024; Adrian James, 2024; Sarah Smith, 2021). Why is it not appropriate to consider in a mental health act assessment context, but is in general mental healthcare? How are high levels of distress resulting from PTSD, ADHD, EUPD or ASD not a mental disorder within the terms of section 1, and how is risk in an uncontained context any better?

I find myself in a position as a professional where I have no idea what appropriate treatment in mental health is, if it is not an admission that is needed and the person requires long-term treatment (just as an example) which is either not available or requires a wait of months or years to access, Then what? What happens in the interim? How much damage are we doing to people by invalidating distress and telling someone its ‘behavioural’ (again just as one example).  

Over the course of these reports and judgements diagnoses are present, risk is present, and harm is present. While some mental health services might be somewhat shoddy, there are situations where to not detain increases the risk and more frequently is being passed over to High Court and Court of Protection judges to make the decisions that practitioners on the ground are unable or unwilling to, particularly in light of the huge resource pressures they are managing. In one judgement where a young woman with diagnoses and observable risks to both her and others, the mental health team firstly stated she did not meet the criteria for mental disorder and then went on to state that the treatment available was not appropriate and so she was not detainable. That is a big statement to make and one that I believe is reflective of the practice environment as much as anything else. Is an inpatient unit ideal? Absolutely not. Is it better than the alternative? It might just be. In this case, HHJ Burroughs was frustrated by the use of the criteria to exclude this young woman, stating in his judgement (Lancashire CC v X [2023]) –

“I wanted to know why…psychiatric services consistently and persistently regard Claire as not being detainable under the MHA. She has a mental disorder. It appears it is of a nature and a degree that needs treatment of some sort and in a place of security. It means that she is an enormous risk to her own health and safety but also, potentially anyway, to others.” (para 31)

“I wanted the person who most recently assessed her to provide the assessment and an explanation as to why, in their view, she is not detainable.” (para 32)

“That assessment appears to focus heavily on the degree of disorder at the time of assessment and not on its nature over time.” (HHJ Burrows, para 34)

This case is significant for several reasons. Firstly, it has opened the conversation about judicial review of mental health act assessment decision-making, something that previously has not really been a thing. Secondly, it raises the ongoing question of ‘so what would be appropriate then?’ and how do we account for what has become almost throwaway language within the culture of current mental health services. What each of the various parties in this judgement did not appear to do is look across the fence. They did not evidence that they had considered the whole circumstances - that the risks, needs and contexts had been fully considered, nor that they had collaborated in relation to how these might be managed in this particular young woman’s best interests. They did not talk to each other about what the options from all perspectives could be and were unable to determine which would be the best way to manage a very distressed person, on the receiving end of our big game of table tennis. We argue about what it is not rather than what it is – that can’t be right!

A fair few moons ago now, we had Colonel Munjaz (R v Mersey Care [2006]) heard in the House of Lords, where the leading the judge stated:

“…In my opinion it includes all manner of treatment under medical supervision of those suffering from mental disorders from cure to containment. It includes treatment under medical supervision which is designed to alleviate or prevent a deterioration of the patient's condition, even if it will have no effect on the disorder itself (Lord Justice Bingham; para 66)

Since then, the concept and definition has been revisited a number of times with an increasing focus on the benefit of treatment as well as its availability in more recent years, with subsequent judgements emphasising that there needs to be at least some minimally therapeutic benefit to be gained from admission.  An emphasis that has culminated in the inclusion of ‘therapeutic benefit’ in the Mental Health Bill as part of the revised detention criteria (in the long grass currently I know, but I still have optimism it will be dusted off again at some point – it took a decade for the 2007 amendments, so not all hope is lost yet!).  

One of the problems is that appropriate treatment in mental health terms is such a moveable feast. Evidence changes faster than systems and services do, and the range of options and the quality of those options are just not there in our current provision. We have value judgements and a narrow set of options rather than actual treatment choices, and even where NICE publishes guidance -  it is not always followed - because it is hard and we do not have time, or we know better, or the resources are not available (or all three). When it gets too hard, we divorce ourselves from it and pass it to the courts (professional and organisations alike). Often only when it suits us, and usually because the decision is a rubbish one and we either can’t agree amongst ourselves and the patients’ supporters, or we otherwise feel that we need a higher authority to give us permission. Sometimes this is true, sometimes it is perceived – I am not sure as a sector we know the difference anymore and the multiple SARs that highlight legal literacy as a serious practice gap would seem to support that view (see Preston-Shoot et al, 2020)

The current strategy of using criteria to narrow access, with terms like ‘not detainable’ used to justify the refusal of access to services is not working. It is being deployed as a capacity management tool and the judiciary are calling both AMHPs and section 12 Doctors alike out on it. This just further embeds the systemic issues that are rife across the sector, and we are allowing the mental health act to be used to gatekeep, what are on the whole, sub-standard and poorly resourced services, rather than being a piece of legislation built on the needs of the individual and the community, and to uphold individual human rights.

I don’t disagree that our current community and inpatient services are often less than we would wish them to be. Delays and deflection are now a routine part of daily AMHP life. But while we argue about which Act it should be, the person in distress is left with no options, no support, and often little hope. Sadly, I am not sure what the solution is, other than more staff and resources, but what I do know is that across all of the cases and reviews legal literacy is being highlighted as a concern and contributing factor, with each silo talking their own language with plausible credibility (as well as smoke and mirrors) to justify why the responsibility to act does not sit with them. It’s becoming a bunfight between services and professionals, rather than a proper conversation about what needs to be done and the resources that we need to do it.  We need to be saying it out loud and not colluding with the ever-increasing resource bunfights – we need to be escalating, making decisions based on the person in front of us and their situation, not on whether a bed is available, or if the person has the ‘right’ diagnosis.

We need to be saying: “this person meets the criteria but there are no resources to meet their current needs and risks, or that this person is suffering from a mental disorder that warrants treatment but that we believe that treatment will make it worse not better, or that that treatment is not available” – but we are hiding a systemic issue with terminology and language. We are arguing about who is not going to meet the acute need of another human being rather than asking what we can do to ease that person’s distress. We blame rather than enable, judge rather than facilitate and then say it is not our fault or we have no control to change it.  Is that what we are becoming? A profession that is done to? A profession that starts from the position of defence and hides behind ‘least restriction’. Social Work is supposed to call out oppression, and most AMHPs are social workers – it should be at our core. I think that ‘not detainable’ is a myth that is perpetuated as a defence mechanism. It is used to hide both stripped out services and, in some cases, a blatant disregard for evidence-based practice (…but that is another blog for another time). This is how I see the reality of our current mental health services. We might not be able to change it, but we do need to get honest about it if we have any hope of not making it worse.