“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

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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

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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