This is the first of a couple of blog posts on a particular problem in police custody upon which I have worked for several years in my attempt to find an answer. A subsequent blog will get into the full legalities of police custody on this point, but let me test the water with this:
Where individuals arrested for substantive criminal offences are assessed under the MHA as needing hospital admission, it is occasionally the case that there is (apparently) no bed available in a psychiatric unit. The frequency of this varies from area to area; I know of some who report having this problem only very, very rarely indeed.
It leads to all manner of attempts to find other psychiatric units with availablo beds, sometimes out of the patient’s normal area; sometimes in the private sector. There is a cost to this and some NHS areas are very, very reluctant to go for out-of-area or private sector beds if at all avoidable.
Meanwhile, back at the police station and whilst the bed management nightmare is ongoing, the PACE timescales to which the police must operate when detaining people who are arrested but not charged with an offence start to expire. It brings about a legal urgency which tends to focus the minds of custody sergeants who must at all times be satisfied that there is a legal basis upon which to detain someone.
If PACE runs out, then the MHA must provide a legal basis for detention or the person should be released. Except that releasing someone who is profoundly mentally ill and by definition a risk to themselves, possibly also to others, is utterly unconscionable; whilst keeping them detained without authority could be argued to be one or more of several potential legal breaches, including false imprisonment and a Human Rights violation. You may be able to charge them with a criminal offence, but if you’re only doing it because you cannot immediately divert them to an NHS psychiatric bed, where is the ethical framework at play here?!
I have seen written legal opinion from a barrister and policy reports from the Mental Health Act Commission (now the Care Quality Commission) which says you solve it like this:
- The DR – not the AMHP – has a legal obligation to find a bed for an admission which has been identified as necessary;
- The AMHP has a legal obligation to make applications once the criteria of s13 MHA are satisfied.
- Notwithstanding the contents of Chapter 4 to the Code of Practice upon which AMHPs tend to reply when explaining that they can only make applications to hospitals who are making a bed available; the Code of Practice as we recall is “not binding instruction; nor is it mere advice – it is statutory guidance which must be followed unless there are cogent reasons for departure.”
- Could the cogent reason be, “This person can no longer be lawfully detained by the police, because PACE timeframes are expiring as we speak and the person is too much of a risk [to themselves or others] to be released.”
- This brings the AMHP and DR into a degree of conflict – “Which hospital do you want me to apply to DR?” whilst the DR is not ready to answer that question.
This scenario is addressed in previous reports of the Mental Health Act Commission (now the CQC). Refer to –
1. The 08th Biennial Report – para 4.45; and
2. The 09th Biennial Report.- para 2.49.
Although these documents date from the late 1990s, they have never been repealed or superseded from what I can establish. Remember, this is guidance from the statutory authority who oversees the Mental Health Act and their documents are legally reviewed before publication:
- They suggest that where this situation arises, a hospital is chosen from the ‘s140 list‘ held by the PCT and the AMHP makes the application anyway and then;
- Conveys the patient to the hospital where the bed problem is to be managed in a setting where the patient can start receiving (at least some) care in a context of legal detention.
- The ‘s140 list‘ is a list of hospitals who have been identified by the PCT to the Local Social Services Authority (LSSA) as being in a position to receive patients in cases of special urgency.
- PCTs are required to specify these hospitals by virtue of s140 MHA.
- I once wrote in a private capacity to nine PCTs asking them to provide a list under the FoI of the hospitals which they have specified to their LSSAs as being in a position to receive patients in circumstances of ‘special urgency’:
- I got one response and it made no sense at all to my question.
- NB: I am very aware, that the Richard Jones ‘Mental Health Act Manual’ states in the notes to s6 MHA that this approach is questionable.
- I notice he says nothing at all about the interpretation of s13 MHA and very little about s140 – I admit to finding this curious.
- What he stops short of saying, is that it’s wrong.
- What we can all agree is wrong – legally and morally – is a mental health patient in need of admission, being left in a police cell for days, whilst bed management problems are resolved.
Such a scenario unfolded in Greater Manchester Police in 2004 and led to a person who had been arrested for an offence being held in the cells for over 3 days, despite having been identified as ‘sectionable’ after approximately 6 or 7 hours.
That case ended with GMP instructing counsel to seek an emergency injunction ahead of a full Judicial Review for a failure to provide beds / make applications. Perhaps unsurprisingly, by the time their barrister was poised to enter the High Court a bed was found. The IPCC investigated this case and concluded that whilst many illegal things occurred and it was all outrageously unsatisfactory, this had been beyond the control of the police who had a duty to keep the detainee and the public safe – the situation had arisen from a failure within the NHS. The IPCC concluded that the amount of representations made by the police at all levels up to Chief Superintendent to all levels of the NHS showed they had done everything within their power to influence a different outcome.
THE LAW IS THE LAW
We must remember: legal duties are legal obligations and they are capable of legal challenge. Whether a private individual wishes to bring legal action in the civil courts or not – against the police or the NHS – public authorities which include the police and the NHS have a ‘positive duty’, ie a pro-active obligation, to protect European Convention Rights. Argubaly, the police should be thinking of things like this, to protect that person’s Convention rights. Such rights – under articles 2, 3, 5 and 8 – come into play when we are talking about the detention in the cells of someone suffering mental disorder, without clear legal authority, whilst the NHS are busy demand managing beds.
However difficult it may be, these background legal obligations come in to play and must be addressed without the police being left in the middle of a “damned if you do; damned if you don’t” scenario.
Final observation: these positions always seem to involve cross-border stuff: ie, police in Area 1 arrested a person from Area 2 in Area 1 for an Area 1 offence; the dispute about beds is whether Area 1 or Area 2 should have to provide it if neither have an obvious answer – more likely still if there’s more than 50 miles in between the two.
The Mental Health Cop blog won
– the Mind 2012 Digital Media Award, in memory and in honour of Mark Hanson.
The Awards celebrate the “best portrayals of and reporting on mental health in the media.”
– a World of Mentalists 2012 #TWIMAward for the best in mental health blogs.
It was described as “a unique mix of professional resource, help for people using services and polemic.”