Is It Lawful for Healthcare Assistants to Supervise Under S.136 (1C)?

Question from Jb1, Is It Lawful for Healthcare Assistants to Supervise Under S.136 (1C)?

Answer from AI:

What the law says about who can detain under S.136(1C)

Section 136 of the Mental Health Act 1983 (MHA) allows a registered mental health nurse (or a person of a “prescribed class”) to detain someone who appears to be suffering from a mental disorder and is in immediate need of care and treatment.

The MHA (Amendment) Regulations 2015 list the “prescribed classes” that may act under S.136(1C). The list includes:

• Registered mental health nurses
• Certain other health‑care professionals only if the Secretary of State has expressly prescribed them

Healthcare assistants (HCAs) are not named in the regulations, and there is no statutory instrument that currently adds HCAs to the prescribed class. Consequently, an HCA acting alone does not have the legal authority to make a S.136 detention.

Can supervision by a nurse make an HCA’s action lawful?

The MHA requires that the person who actually exercises the power of detention be a member of the prescribed class. Supervision does not transform the HCA into a prescribed person. The law therefore looks at who makes the decision, not who assists or observes it.

• If a registered nurse personally makes the detention decision and the HCA merely carries out a task (e.g., escorting the person to a place of safety), the detention is likely lawful.
• If the HCA is recorded as the detaining officer or is the one who signs the S.136 form, the detention would be ultra vires (beyond the HCA’s legal powers) and could be treated as an unlawful detention.

Potential impact on the validity of S.136 detentions

When an HCA is used in a way that falls outside the statutory authority:

• Detention may be deemed unlawful – the individual could challenge the detention on the basis of false imprisonment.
• Evidence gathered during an unlawful detention could be excluded from any subsequent mental‑health assessment or treatment plan.
• The Trust could face complaints to the Care Quality Commission (CQC), potential investigations by the Parliamentary Health Committee, and possible civil claims for damages.

Where the Trust’s policy may be on shaky ground

The Trust’s claim that “national and local guidance” permits HCAs to detain under S.136 is not supported by the current statutory framework. Guidance such as the NHS England “Crisis Care Model” emphasizes multidisciplinary teamwork, but it does not amend the legal definition of who may detain. Unless a future amendment expressly adds HCAs to the prescribed class, the Trust’s practice would be inconsistent with the MHA.

Possible routes for recourse

Given that the issue has already been raised in a formal complaint, you have several avenues to pursue:

1. Internal escalation – address the matter with the Trust’s Chief Executive Officer (CEO) and the Clinical Governance team, requesting a review of the policy against the MHA and the regulations.
2. Care Quality Commission (CQC) – submit a complaint if you believe the Trust is breaching statutory duties or putting patients at risk. The CQC has the power to inspect and enforce compliance.
3. Parliamentary route – write to your local MP. MPs can raise the issue in the House of Commons, request a written answer from the Department of Health and Social Care, or refer the matter to the Health and Social Care Committee.
4. Department of Health and Social Care (DHSC) – you may contact the DHSC’s Mental Health Policy Unit for clarification on whether any recent guidance has altered the prescribed class list.
5. Legal advice – consult a solicitor with expertise in mental‑health law. They can assess whether any specific detentions were unlawful and advise on potential claims for false imprisonment or breaches of the European Convention on Human Rights (Article 5).

What to include in any correspondence

When writing to the above bodies, it is helpful to:

• Cite the specific sections of the Mental Health Act 1983 and the MHA (Amendment) Regulations 2015.
• Reference the Trust’s policy wording that permits HCAs to detain, and contrast it with the statutory list of prescribed classes.
• Request a clear statement on how the Trust intends to align its practice with the law, and ask for a timeline for any policy changes.

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Key sources for further reading

• Mental Health Act 1983 (legislation.gov.uk) – full text of the Act.
• MHA (Amendment) Regulations 2015 (legislation.gov.uk) – details the prescribed classes for S.136.

If you are uncertain about the legal implications for a particular case, seeking advice from a qualified mental‑health law solicitor is strongly recommended.