On 03rd May 2012, MS won his claim for a violation of Article 3 ECHR (inhumane and degrading treatment) after his arrest in 2004 under s136 Mental Health Act. He was detained in a Birmingham police station and subsequently admitted to a regional medium secure unit after more than three days in a police cell. If you are unfamiliar with this case, I’d recommend reading the summary of the ECHR judgement. It is a decent overview of this case and the full judgement is only for the really interested amongst you! Not an overly long one – for an ECHR case!
This blog is longer than any other I’ve written, but I’d argue it is such an important case, I wanted to give it due coverage.
I’ve actively monitored this case almost from its beginning - I heard of the incident within a month or so of it happening as I first starting working on mental health issues. When posted to headquarters in 2005 to work full-time on mental health, I started using it as an example of why we surely need s136 provision in NHS establishments during an early period of work on ‘places of safety’. It is even more important now that the case has been won (subject to any appeal).
A few years later when I was again posted to work on mental health issues, specifically to ensure s136 MHA provision in NHS buildings across my force, I continued to cite this pending European case and also had to gather together material from my force for Home Office lawyers to contemplate their legal reaction to the challenge. This involved reading the all of case papers from the initial claims made in the British Courts and forwarding summaries of policies and procedure in place at that time.
I remember saying in 2009 after reading the initial claims, that I thought the claimant would win and that in many ways I hoped that he did. Over eight years later, he won his claim that his detention and lack of care amounted to inhumane and degrading treatment – a contravention of his European Convention Rights (article 3).
At the bottom of the blog, I’ve begun to post some viewpoints which have entered the ‘blogosphere’ and will add to the list as I discover more. But there are four points I want to make about this case:
- Place of Safety arguments
- Accessing Psychiatric ‘Beds’
- Media coverage
PLACE OF SAFETY ARGUMENTS
Firstly – I publicised this verdict on Twitter today and received many replies. A few of them asked why this man was taken to a police station in the first place. Quite simply: there was nowhere else he could have been taken. In December 2004, there were no NHS facilities in Birmingham which were ‘designated’ as a place of safety and no healthcare establishment of any kind would allow itself to be used on a casual basis as a place of safety.
However, that is not the main issue here: not only did the judges in this case not criticise the use of a police station, they actually stated that because of the allegation of violent assault against his aunt, prior to arrest, the decision to remove him to a police station was both valid and lawful. Far more importantly to the decision-making, it was the only available option. The judges welcomed the developments in NHS provision around the force since this case but reminded that they were obliged to judge his treatment on that day.
I am informed via one lawyer on twitter that he was surprised the action was under Article 3 as opposed to Article 5 (right to liberty) because there is already European case-law which stipulates that a location should reflect the nature of the detention being endured – Aerts v Belgium. There is also a very erudite explanation of MS v UK by Mind in-house barrister Martha Spurrier on the UK Human Rights Blog which is well worth reading too.
Finally, it causes me concern as to whether the detention of mentally vulnerable individuals in police stations in the future, where behaviour and presentation is acutely agitated and distressed, will bring automatic considerations upon custody sergeants that mean they are unwilling to detain people in the cells amidst fear of legal repercussions. Let us not forget, it was only yesterday that police officers were criticised for not pushing back against and overtly challenging medical opinion where it related to safety and appropriateness of detention in police cells and we also know that detention of people in psychiatric crisis is prone to surprises of hidden, masked medical risks.
When someone is arrested under s136 MHA - whether they are removed to police cells OR to an NHS place of safety – they are not detained under a part of the Mental Health Act which allows medical treatment without consent. In this case, once MS was received into Reaside Clinic, he was restrained and forcibly medicated by psychiatrists, consistent with the care he required and this point was agreed by his lawyers. Such enforced treatment cannot legally occur whilst detained under s136 and certainly not in a cell. It was the need for such medical treatment, the inability to render it and the subsequently ongoing degradation which amounted to inhumane and degrading care.
ACCESSING PSYCHIATRIC ‘BEDS’
MS was quickly assessed by an FME and then subsequently by a psychiatrist whilst in custody. The speed of his initial medical assessment and his MHA assessment was not a major issue here – in fact, the speed of the MHA assessment was faster than the average at around that time. In any event, as I understand the verdict, it was the time taken to realise an admission after his MHA assessment and the consequent treatment endured which formed the basis of the court’s view that his detention had violated Article 3.
It does raise a question about the contingency arrangements that the NHS have access to where there is a clinical need for a particular type of bed. In this case, there was debate between psychiatric intensive care and medium secure as to which was the clinically appropriate place. It is not the first instance of which I am aware where detention in police cells has lasted for several days for the want of being able to access a bed within the NHS: discussion (disagreement?) occurring between providers or specialists has been cited before.
In Manchester - also in 2004 - during another case investigated by the Independent Police Complaints Commission (no link on internet that I can find), it took imminent legal action by the police in the High Court to motivate the discovery of a bed. This is something that I have had to do three or four times in circumstances that were becoming similar and each of these examples usually revolve around an inter-area debate about which MH trust would provide a bed to a man arrested out of his home area; OR to a debate about which type of specialist psychiatric facility is the appropriate one.
I want to make just a few quick points about media coverage today. There have been news articles written by the Daily Telegraph, The Independent and The Guardian all of which fail to address (or understand?) the most important point: detention in police cells was not, per se, the important legal issue. It was the inability to secure the man’s onward admission into the NHS and the subsequent degradation suffered that was complained about.
Having read the articles – all published within a hour or two of the judgement – I had to wonder that the journalists had read the summary but not the full judgement because the tenor of their coverage – tell me if I’m being over sensitive, won’t you?! – implies criticism of the police when in fact, there was none.
Action brought in the English civil courts was NEVER brought against the police at any stage: only the NHS. The police and the Home Office were merely involved parties, but were not subject of the proceedings. And so I wondered about the extent to which the journalists understood that the conditions of this detention came about for the want of being able to access the NHS for a Place of Safety or for the want of the NHS being able to bring around adequate admissions arrangements in an appropriate facility after MHA assessment.
I found myself asking where the questions were about why PCTs in a major UK city, at that time, did not commission and ensure any PoS provision; consistent with the requirements of a Code of Practice (1999) to the Mental Health Act and various bits of national guidance? Where are the questions about why PCTs don’t seem to have any answers when you ask them for policies and procedures around the realisation of urgent arrangements for admission, as implied by s140 Mental Health Act? (Most of them just ask, “What’s section 140?!”) Why does it sometimes take police services threatening legal action against the NHS – as in the IPCCs ‘Manchester’ case – to bring about the provision of responsibilities?
These are the reasons, in my personal opinion, why the MS case occurred as it did. The ECHR judges made mention many times in their judgement of how genuinely concerned the police were about the welfare of MS, how keen they were to see him transferred out of police custody into an appropriate healthcare facility. Having read the custody record maintained by the custody sergeants involved, this is the thing which shines through the most – concern for welfare.
It is also right to record that the psychiatrists and other professionals involved were not ‘passive’ but actively attempting to work through their service arrangements to realise a bed admission as soon as possible. There was no benign neglect on the part of any professional, or any agency – just a range of professionals trying to do the right thing.
I have written before about s136 MHA and Places of Safety, that in partnership discussions it is often the case that you come across mental health professionals and / or commissioning managers who wish to impose what I call exclusion criteria on patients being allowed entry to an NHS place of safety. Were those common criteria to be applied by the NHS today - and in very many areas, they still are – then the detention of individuals like MS would again end up in police cells in circumstances where cases like may lead to a Convention violation.
Royal College of Psychiatry Standards do make clear that NHS facilities should still be able to receive s136 detainees even where behaviour is highly disturbed. This case, representing judgement on the positive legal duty owed by public authorities to those detained by the state, gives another reason – as if more were needed – why police stations should not be used as a place of safety.
When I have tweeted statements suggesting that police stations should not be used for s136 detainees, you always get replies which give behaviours upon arrest like those of MS as a reason why police stations should still be used on an exceptional basis.
We now know what the answer to that is: MS v UK.
OTHER BLOGS on MS v UK: