Arrest For s136 or For An Offence?

Certain situations present police officers with incidents which could lead to an arrest for a criminal offence OR an arrest under s136 MHA(EW) / s297 MHA(S) / s130 MHO(NI).  It therefore raises the question, how does the officer make the decision as to which?

Some forces issue guidance on this; others don’t.  Amidst the possibility of doing either, or both, and it all being lawful, my view on how to tackle this very important decision – which often has to be taken very quickly and without the benefit of full information and background – is reflected in four bullet points; for reasons I will then go on to explain.

  • You arrest for the criminal offence, UNLESS: >>>
  • The offence is trivial, especially if it is ‘victimless’; or
  • The victim reporting the incident is not seeking a justice response, but is seeking help for someone they know to be suffering from mental-ill health.
  • that in the circumstances, the conduct is more likely than not attributable to mental health problems which should in the circumstances be prioritised.

On the second point: the police do get called to jobs where families or friends of patients have needed help to manage challenging behaviours and within that there is an offence.  However, whether they rang to complain of assault or to get help from a mental health point of view, is not necessarily clear.  Whilst remembering force domestic violence policies, it is important the police don’t immediately get it wrong from the family’s point of view.

Here is a scenario:

  • A man in standing in a car park, adjacent to a road with a bus-stop.  There are three or four people waiting for a bus.  The man is mentally ill and he is shouting in the general direction of the people, swearing a bit and being abusive towards them, he is dishevelled and clearly hallucinating.
  • The people are worried about what he may do and call the police.
  • This is an offence under s5 of the Public Order Act – threatening or abusive or insulting words or behaviour, likely to cause harassment, alarm or distress.
  • Do you arrest for the public order offence or under mental health legislation?
  • Mental health law: every day of the week.
  • No-one was being hurt, it is obvious he has a serious mental health problem and needs care and support.
  • Should that MH assessment conclude that he is not mentally disordered at all, he can still be then ‘dealt with’ for the public order offence, if that is deemed necessary.

Repeat the scenario again, almost exactly as above, but this except this time add in the obvious possession of a knife and make the threats a bit less generalised and more towards the individuals who are very fearful of what the man may do.

  • He would be committing offences by possessing the knife as well as more serious public order offences of threatening violence; or assault by using it if the incident escalated further before the police arrived.
  • Do you arrest for the public order offence or under mental health legislation?
  • Criminal offence for me: every day of the week.
  • Although no-one had yet been hurt and it is obvious he has a serious mental health problem and needs care and support; he is engaged in very worrying behaviour.
  • Mental Health assessment and if need be, full admission to hospital under mental health laws are available from police custody.
  • The decisions about the offences committed can then be taken in conjunction with decisions about his mental health care.

If the DRs and the MH assessment team in police custody conclude that immediate and compulsory admission to hospital is necessary, the man could be bailed by the police to re-appear after assessment and treatment in hospital.  Discussions about his potential criminal liabilities and / or any consideration of charging him with an offence despite his mental health problem then occur in light of fuller information about his mental health problem.  For example, if it is believed that a long stay in hospital under the Mental Health Act is necessary, bail could be cancelled.

What does this balance achieve:

  • It means that fewer people are criminalised for minor offences, when in reality their presentation was directly connected to their acute mental health problem.
  • It means that any patient who does commit a more serious offence – and this is comparatively rare – is still properly investigated for their liability, but this is done in conjunction with the NHS and in light of urgent MH needs.

This all links in the ‘diversion’ debate (oh, how I hate that word).  Getting it ‘right’ at the start saves time, effort, money and it manages expectations correctly across the organisations involved.  Remember, there can be up to 7 different organisations involved in a care pathway after arrest.

In some police areas, the difference between this kind of approach and a ‘Mental Health Act wherever possible’ approach, is a reduction in 40%-50% of the 136-type cases.  Such mental health powers were never intended as a substitute to substantive police powers to arrest for crime and a previous Code of Practice to the English / Welsh Mental Health Act used to say so.

It ensures a response to more serious offending which captures intelligence and in some rare cases will lead to prosecution – let’s not forget, the only route into some parts of the Mental Health Acts / Orders in all jurisdictions of the UK, is prosecution and via the courts.  To ensure that people who need such treatment and care after offences were committed, it is necessary to prosecute them.  I make no judgement about whether this is right or wrong, but that is the law of the UK as it stands today.

The police getting it ‘right’ at the start is important; but you’ll never achieve precise criteria to guide decision-making:  all cases on their merits in the judgement of the police officers attending.  It’s therefore important that we train them properly.

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2 thoughts on “Arrest For s136 or For An Offence?

  1. I agree with the second scenario , but what ever you do police are going to be called if a person is running around welding a knife or just running around being abusive in general even if they don’t hurt anybody and have obviously mental health issues the general public will call the police to come and deal with them AND Expect them to deal with them.

    I speak from experience having a mum who was a violent paranoid schizophrenic and we on many occasions involved the police especially to go and find her a few times when she went off on a mission to kill herself yet again and let me tell you at age 11 being told by a doctor he couldn’t be bothered to come out he’s fed up with dealing with her just isn’t good ! I’m not a highly educated person I’m not mental health expert I’m joe blogs on the street and my mother was at the extreme end of mental illness there was nothing anyone could do for her she had ECT treatment sectioned for 6 months and what came out of the mental institute wasn’t quite what we sent in they fried her brain and chucked her out the door job done really , she took so many pills you would of thought any responsable practictioner after her overdosing so many times wouldn’t give her such a large prescription at any one time , but this is over 20 years ago when prescriptions weren’t monitored like they are now.

    14 different tablets she took so easy when on a very down day no one loved her we all hated her day to just shut her eyes and take the whole lot , only for one of us ( there’s 4 of us ) to come home from school and find her and call up the ambulance .we had an APB out for her more than once and the police were very good I still remember the instances not their names just that they were there and they cared about what happened to me . Well I mean we all probably know the ending to this eventually she suceeded we had all left home I was 19 and married and I got the phone call from my dad I can remember exactly where I was at the time exactly how I reacted , I have to tell you at this point my mother did some pretty low things to me apart from the constant beatings she wasn’t happy with that she became very jealous of me I’ve no idea why and centred all her efforts on destroying my life so I had very mixed feelings when the news came the shocker was what she did to achieve suicide and how well planned the whole thing was and again involved the police who had to break the door down to get to her, anyway I strongly believe that family are key in the welfare of a mental health patient my sister is now suffering and has been for many years I took her to be sectioned for 3 months just recently , the care is out there but why is it do hard to get these organisations to do something ?

    If someone is just causing a bit of a raucous not hurting anyone do we have to arrest them ? And where’s the people who look after this people where are they ? Some are completely bloody useless …. Sorry … Swearing ( not all I know ) but people just walk out the door down the road from their carers and ??? DOH ??? What the hell ?? Arn’t they supposed to be in the care of this person /or home / or whatever , only my opinion not anyone else’s clearly if they have committed a bogus crime then I think they should be detained at this stage and the whole thing investigated RA appropriate adult FME the whole shebang and I’m pretty sure in the police doing all these things doing the great job that they do they recognise the problem and try and deal with it with the resources that they have and proceedures in place for them to do so the other organisations have to help to not being a politician I’m not going to debate on the ins and outs of who’s responsible for what but something’s clearly going wrong because we keep seeing the same thing over and over again I think every vunerable person should have an appropriate adult assigned to them or a card or something to say they have learning difficulties , autism, dyspraxia , whatever it is so if they are arrested the appropriate person came be called no arrest maybe a caution? I dont know I’m

    Not familiar with the law and recorded they come get them job done no need for detention only for the time taken for that person to arrive , just an idea ( could be useless idea but still ) I ward for my sister she doesn’t get lost go out and commit crime others are not so fortunate and some I believe really don’t know the difference when they walk into a shop and take something and get arrested I’m pretty sure someone with severe autism would have no concept of theft just it looked pretty and they wanted it ( not all just a example ) the question is what to do with this person …….from reading the blog it’s a fantastic piece of writing got my vote anyway.

    1. I meant that they should have someone anyway not just the designated one assigned at the station someone who knows them ……an ideal world I know, thankfully I think local police officers generally know everybody prolific offenders with MH issues not sure what the answer is one charity suggests people with learning difficulties should all carry a card stating their difficulties. It’s only my opinion @bainesy1969 no one else’s -:) my niece has ADHD dyspraxia and social and educational learning difficulties I deal with it everyday but she doesn’t commit crime she knows the difference parents play a big part -:)

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