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England and Wales; Scotland and Northern Ireland

A couple of years ago, when helping to write national guidelines for the police, I was introduced to the word ‘Welshified’.  It was explained to me that the way in which those guidelines were initially drafted ‘wouldn’t work in Wales’ because there was a different Code of Practice.  Within a few days I had read this document and whilst it is certainly different in many regards, for policing purposes it is sufficiently similar to mean that the police in Swansea and Birmingham do face almost identical challenges when involved in the application of section 135 and section 136 Mental Health Act.  The paragraph numbering is different when legally referencing a local protocol, but how the police manage someone after arrest under s136 MHA is identical.

The UK does not have one piece of Mental Health legislation, but has four separate national jurisdictions.  I have been privy to cross-border conversations between police officers who assume that because the law is written differently there must be massive differences in the issues and that the service may not be able to learn from each other’s experiences to develop better responses.

I am not claiming that the legislation is the same – it is not and in some parts it varies quite considerably.  But the police parts are very broadly the same:

  • Although England and Wales share a Mental Health Act, they have two separate Codes of Practice, and Wales has a devolved health system to Cardiff;
  • Scotland has a devolved NHS to Holyrood along with its own legislation and Code of Practice;
  • Northern Ireland has a devolved NHS to Stormont and its own legislation and Code of Practice.
  • The provision of certain mental health services – notably the four ‘high secure’ hospitals for dangerous mentally disordered offenders – is cross border:
  • Wales has no ‘high secure’ care and always has used Ashworth and Rampton hospitals in England, wherever necessary;
  • Carstairs in Scotland is also for ‘high secure’ patients from Northern Ireland.
  • All of the Mental Health legislation is written to allow cross-border transfers and the recovery of cross-border AWOL patients.

For policing purposes, the most stark contrast is the law in each area around the timescale for detention in a ‘Place of Safety’:  72hrs in England / Wales; 48hrs in Northern Ireland and just 24hrs in Scotland. Quite why it can take three times as long to assess people in Birmingham and Swansea than in Glasgow; and twice twice as long in Derry as Glasgow is beyond me but Scotland does show what is possible if we legislate to keep timeframes short.  (There was suggestion in the 2004 Mental Health Bill that English / Welsh law should be reduced to 12hrs, but this did not make it into the Mental Health Act 2007).

A Scottish police force sought advice last year about challenges faced by their service: the NHS were demanding that police officers remained in a Place of Safety after detaining someone for their own safety under section 297 of the Scottish Mental Health Act.  The NHS there had apparently rejected a suggestion that the approach being pushed in various parts of England – where the police are able to leave low risk patients in NHS care – should be translated north of the border.  Apparently “The law is different here.”  Well the words are in a different order, but s136(2) MHA(E) and s297(2) MHA(S) amount to the same thing.  It is perfectly possible – and some would argue just as desirable – that patients are not criminalised by the inappropriate use of police officers to ‘guard’ low risk patients.

For policing purposes many of the remaining debates are the same in each area:

  • Removal from a public place – s136 MHA (England / Wales) = s297 MHA (Scotland) = a130 MHO (Northern Ireland).
  • Removal from a private place – s135 MHA (E/W) = s293 MHA (S) = a129 MHO (NI).
  • Place of Safety – is a legal concept in each jurisdiction and arguments prevail regarding access, exclusion criteria and police support to the NHS.
  • Patients absent without leave – s18 MHA (E/W) = s303 MHA (S) = a29 MHO (NI).
  • The significance of the Codes of Practice in each area.
  • Approved Mental Health Professional (E/W) = Mental Health Officer (S) = Approved Social Worker (NI).

It’s almost as if someone sat down to write the same thing three different ways and all of the British police service is a gateway to the mental health system in each part of the UK – ‘street corner psychiatrists’ as they are in the rest of the developed world.

All of this legislation is now available on the ‘Legal Resources‘ page and the issues within this BLOG are more than broadly applicable across the UK and, indeed: abroad.

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About mentalhealthcop

24/7 police inspector but blogging in a personal capacity. Interested in mental health issues and criminalisation but views do not represent those of any police force or police organisation.

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Michael Brown

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