“You’re Under Arrest for Being Ill.”

I’ve had a few questions today about the legal terminology “arrest” for the detention of people under s136 Mental Health Act 1983 in England / Wales; which would also apply to a130 Mental Health Order 1986 in Northern Ireland.  Things are different in Scotland – see below:

I’ve also had queries via twitter today – @mentalhealthcop – about wording upon ‘arrest’ or detention; CRB checks for s136 and so on.  So here are a few bullet points which should address them all.  Let me know if I missed any and I’ll add to this:

  • Is this an ‘arrest’?
  • In Scotland you have been ‘detained’ and the word ‘arrest’ is not legally applicable.
  • If you have been ‘detained’ or ‘helped’ or some other vernacular that may be preferred, then in England, Wales and Northern Ireland you have, in law, been ‘arrested’.
  • Detention under s136 MHA is a ‘preserved power of arrest’ in England and Wales , by virtue of s26 and Schedule 2 of the Police and Criminal Evidence Act 1984.
  • Detention under a130 MHO (NI) is a ‘perserved power of arrest’ in Northern Ireland, by virtue of s28 and Schedule 2 of the Police and Criminal Evidence (Northern Ireland) Order 1989.
  • We should probably remember, Scotland’s Mental Health Act was comprehensively redrafted in 2003 and criminal law in Scotland does distinguish between being detained and being arrested.  This is unique to Scots’ Law.
  • I’d also like to think it was a deliberate decision to non-criminalise the language.
  • Why call it an arrest, then?
  • Because in England, Wales and Northern Ireland, the fact that someone is ‘arrested’ is then a trigger for other authorities a constable has access to which may assist in keeping someone safe:
  • The person detained can be searched for articles that the officer believes may be something that could be used to cause someone harm, or to escape from detention.
  • These search authorities – s32 PACE(EW) / a34 PACE(NI) – do not arise unless people are ‘arrested’.
  • Finally, the legislation in play in England, Wales and Northern Ireland is basically a ‘lift’ from the Mental Health Act 1959 – they even left the important section numbers the same, for ss135/136.
  • Was this so the police didn’t have to learn anything new?!  Who knows!
  • Some miscellaneous points:
  • You do NOT need to ‘caution’ a person detained under the mental health acts, because cautions – or ‘reading the rights’ – relate to offences and some detained MHA / MHO is not detain /arrested for an offence.
  • When explaining to a person what is going on after deciding to exercise this legal authority, there is no specific need to use the word ‘arrested’ or even ‘detained’, BUT >>>
  • There is very clear requirement to ensure that the person is told in a way appropriate for them what the officer is doing and why that they may understand what’s happening to them.
  • Using the word arrest may aggravate, stigmatize or confuse someone so it is to be avoided and an alternative choice of words used which is as clear, reassuring and unalarming as possible.
  • If you have been arrested under MHAs / MHO – whether or not subsequently admitted to hospital under the mental health law – you do NOT have a criminal record or a criminal conviction.
  • The fact that you were detained MHA / MHO may be mentioned on a CRB check, but it has been suggested to me that forces vary in their approach to this and some treat disclosure on a case by case basis.
  • Whilst detention under s2 or s3 MHA would not figure on a CRB, detention in hospital under s37 – a hospital order – or s37/41 – restricted hospital order – would feature.
  • These are orders imposed by criminal courts instead of or following criminal conviction for an offence and therefore are appropriate for CRB disclosure.
  • Equivalent orders in Northern Ireland are a47 MHO(NI) – a hospital order – or a47/48 MHO(NI) – restricted hospital order.
  • Equivalent orders in Scotland are the hospital order under s58 Criminal Procedure (Scotland) Act 1995 and the restriction order under s59.
  • Officers need to make the whole thing look, feel and sound as unlike a criminal justice process as possible, bearing in mind you’ll probably be stood there in a uniform.
  • That’s why conveyance should be via ambulance wherever this is possible.
  • Mental Health Act / Mental Health Order warrants:
  • All of the above would apply to detention under the terms of a warrant under s135(1) MHA(EW) or a129(1) MHO(NI) BUT >>>
  • These are NOT ‘arrests’, in law.  They are probably best described as ‘detentions’.
  • Scots’ Law allows such warrants under 292 MHA(S), but again it is not an ‘arrest’.
  • There is no power to search the person, under s32 PACE (EW) or a34 PACE (NI).
  • The other points, above concerning cautions, CRBs, information and wording upon detention, would not apply.

Let me know if I missed anything and I’ll add to this post!  Hope it helped.

Due acknowledgement here to @TaypolStudents and @BridgendPC from Tayside Police via Twitter who helped me understand Scots’ mental health law to put together this blog! #teamwork #TeamTayside

Winner of the President’s Medal,
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award


All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2012

I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current.  Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.

Government legislation website – www.legislation.gov.uk

11 thoughts on ““You’re Under Arrest for Being Ill.”

  1. I am a Canadian MentalHealthAdvocate. Every citizen in Canada has a Charter Right to have the validity of their detention/arrest/apprehension checked to see if it’s lawful and to be released if it’s not. This includes Mental Health Act apprehensions by police. Otherwise the police would be discriminating against the mentally ill or those capable citizens being treated as such.

    Not sure if you had a lawyer give a legal opinion relating to Rights of MHA detainees, or if your assertions are your interpretation of the Law.

    Picture this. A capable citizen has been arrested/detained/apprehended by police under the MHA. A caller had provided police with fabricated/embellished/misconstrued information to police and is out to discredit and or make the capable person appear incapable in order to take over control of their affairs/money/property. How can the capable citizen defend themselves if they have no right to contact a lawyer?

    If citizen refuse to co-operate with police and medical staff for the simple reason of being denied their call to a lawyer, then if/when police act on fabricated information provided to them by a caller “Acting In Bad Faith”, then the capable citizen may be forced to remove clothes, forced to take anti-psychotic medications and may appear agitated because of the situation.

    As a police officer, how would you feel if you were denied a right to call a lawyer if a caller provided mis-information about you?

    You stated “if arrested under MHAs/MHO you do not have a criminal record or criminal conviction.”

    A mental health label can be more harming to a citizen’s reputation than a criminal record. Why should criminals have a right to lawyer to defend themselves (innocent I can understand) while capable citizens detained/arrested by police under MHA’s who are being treated as mentally ill have no such right?

  2. Everytime I have been sectioned 136’d I have been made to feel like I was under arrest and committed a serious offence. Chucked in the back of a police van and taken to the police cells for 24 hours +

  3. I believe that Legislators while writing mental health detention laws (any where in the world) had not contimplated situations regarding callers to police who may be ‘Acting in Bad Faith’ and who are out to discredit another citizen by having them Institutionalized or simply detained/arrested by police under a Mental Health Act without having a Just Cause to do so. In B.C. Canada, police are not legally required to provide medical staff with a written MHA report outling the reasons for detention/arrrest, but some police do anyways.

    Some Provinces in Canada order police (by way of Legislation written in MHA’s) to provide MHA detainees with their Charter Right to contact a lawyer, while some provinces like British Columbia (where I reside) are silent on the issue, and some police departments interpret their own interpretation of the MHA.

    It only takes one time for a citizen to be unlawfully arrested and or detained under Mental Health Act/Laws to have a permanate mental health history on file with police. So any time police receive a call about the MHA detainee regarding their safety or the safety of others, then the police data may show you have been previously detained/arrested under MHA Law, and may then from that point on treat you as mentally ill.

    (I believe) that when police provide terrorist and criminals with a legal right to contact lawyer, and refuse to allow MHA detained citizens a call to lawyer, then the police (as I see it) could be discriminating against the detained/arrested citizen who is mentally ill or who is being treated as such.

  4. Hi,
    I am a police officer in the Police Service of Northern Ireland and I have just arrested a girl under section 130 MHO (NI). I am now sitting in a hospital where I have been waiting for four hours and will probably be waiting for many more until she is assessed. This is not fun. I was
    supposed to finish an hour ago and I missed my lunch. God damn the MHO!

    1. Poor you!!! How do you think she feels?? It is worse for her. No one would choose to feel that way. Must be soooo hard for you to be babysitting a loony rather than out truncheoning immigrants or the unwaged

  5. Robert you missed your lunch? Missed your lunch! Citizens (some capable) arrested/apprehended/detained under mental health law by police may be missing more than their lunch when authorities get through with them. The detainee may lose their home, job, family, and not to mention have a permanant mental health history.
    The sad fact is someone could have provided police with misinformation in order to discredit someone. Maybe it’s time for a carreer change, Just saying.

  6. I was wondering whether a search under S32 PACE would be legal following detention under S136 MHA and once again, blog to the rescue. Cheers.

    1. As long as the criteria for the search are met “reasonable grounds to believe” etc., then yes. Section 136 is a preserved power of arrest under s26 and Schedule 2 of PACE, so s32 applies to it, if those grounds in the section are met.

  7. Can the police “de-arrest” a person under 136 without the person being seen by medics or an AMHP?

    1. No – it ends when a DR says ‘not mentally ill’ or the AMHP has made arrangements as required. Police should only end it if it emerges it was illegally applied in the first place – whether deliberately or otherwise.

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