In these last few weeks, I’ve been getting to talk more about police approaches to mental health incidents with a wide variety of people. Far more than once I’ve found myself being asked about street triage and how we can reduce the usage of section 136 MHA. It seems in the minds of many, that this is a worthy objective in its own right, but it also seems important for various other reasons – making it easier to ensure health based place of safety when the power is invoked. It is my strong view that we do need to look more closely at how section 136 of the Mental Health Act is used – there is too much unexplained inconsistency that seems likely to arise from unintentionally varied approaches to its use.
This post is longer than the average – I’ve decided to run with it anyway because it’s such an important issue, in my view.
To be fair, we’ve known for some while that police forces use section 136 very differently – the IPCC report (2008) showed this to us all and I’ve seen it again in the last two weeks. How else do we explain two police forces using this power roughly the same number of times per year when one of those forces is three times the size of the other?
Her Majesty’s Inspectorate of Constabulary released their report “Core Business” last week in which they featured a couple of pages on mental health issues. This reporting was amidst a section that focussed upon reducing inappropriate demands on police officers to free up their time. The report highlighted street triage in Nottinghamshire Police, mentioning that between January and October of a given year that force used s136 a total of 909 times. So at 91 uses per month we could very roughly estimate usage per annum at around 1,100 times. This is roughly the same as West Midlands Police (before they introduced street triage) and so I looked up how big the resident populations and officer establishments were.
West Midlands = 2.8m population with c7,200 officers
Nottinghamshire = 1m population with c2,500 officers.
And yet, similar usage of section 136 of the Mental Health Act. So are people in Nottinghamshire almost three times as unwell as those in the West Midlands? – of course not. Is the West Midlands a bastion of affluence, wealth and employment in a way that Nottinghamshire is one of poverty, deprivation and destitution? – of course not. There will be differences – perhaps in the funding for mental health services, or the way in which those services have evolved; and those police services will have evolved practices of how they discharge their responsibilities – but that surely can’t account for such a differential use of this one legal power?!
In the conversations I’ve had this week, it seems that we do need to do more work on how police officers approach the decision to detain, where they encounter people and think about the potential of the Mental Health Act to provide that intervention. We need to break this down according to two specific problems, as I see it –
1. What to do when someone is intoxicated and threatening suicide or self-harm. (Probably more important to think about this the more drunk that person is.)
2. What to do when someone is also committing a criminal offence whilst intoxicated.
Do you remember the BBC Panorama programme from September 2013? It is unfortunate that it’s no long available on iPlayer but it involved the BBC filming in Hampshire Police custody for a whole week in order to focus on cases where ‘mentally ill’ people were brought into custody. They were ostensibly attempting to highlight how bad it was that people could not access a health-based place of safety (PoS) and to be fair, there were some fairly unusual, highly disturbed behaviours shown amongst those detained by the officers that week. But the programme showed a succession of people who had been arrested for various substantive offences like assault, criminal damage or public order offences.
So firstly, the premise of the programme was massively undermined by the examples they chose to make the point. People arrested for criminal offences do not ever go to a health based PoS – they go to custody, which is exactly where Hampshire Police took them. Various behaviours that caused officers on that programme to effectively plead that it was ‘obvious’ the detainees were suffering from mental health problems, were behaviours that were wholly absent once drugs and / or alcohol had worn off. Indeed, various detainees were shown the next day leaning on the cell door, drinking coffee and making remarks of regret about the previous evening in a fairly sober way, somewhat surprised at what they’d done.
This was true even for some of those arrested for assault who were known patients of the local mental health trust. It seemed that behavioural disturbances occurred for many after ingestion of substances – a point that has been made for many years by mental health professionals I’ve known. Attempts to identify causative, contributory or coincidental factors during crisis incidents is bedevilled where substance use or abuse is involved.
IMPLICATIONS FOR SECTION 136
Imagine you are a police officer on patrol: you are called to a bridge where a young man is described as having climbed onto the adverse side of the barrier and appears to be threatening to jump onto the road or railway line below. The first officer there tries to engage him in conversation and others started blocking roads or requesting traffic or trains to be stopped. Someone starts trying to find out what we can learn about the individual concerned. The officer talking to the man infers intentions towards self-harm or suicide and this triggers considerations around potential use of the Mental Health Act – if they can talk him back over the barrier.
Eventually, the man is persuaded back over the barrier and the officers now have a decision to make. Do they detain the man under any legal authority and if so, which one? For those who are not police officers, here are the options —
1. Do nothing in law – provide help, signposting or any number of other things that may help, but don’t invoke the law to detain him.
2. Detain the man under the Mental Health Act, because he was threatening to jump so he must be or may well be mentally disordered, right?
3. Detain the man for an ‘on or over’ offence? – it is an offence (s22A of the Road Traffic Act 1988) to put yourself on or over a road, causing a danger to road users; it is an offence (s34 of the Offences Against the Person Act 1861) to endanger railway users.
4. Detain the man for a ‘public order’ offence – this could include drunk and incapable, drunk and disorderly or drunk in a public place; equally it could include disorderly, threatening or violent behaviour under the Public Order Act 1986 depending on which of those were appropriate, if any.
How do you make good decisions in ambiguous, uncertain circumstances?!
Can we agree that Option 1 is out-of-order? – we’re not going to do nothing, because we can perfectly well anticipate that if we don’t detain him, we’ll end up back here in half an hour doing the same thing or that if he were merely sent on his way home – even in the charge of a friend or relative – he may still come to some other form of harm. Enough examples of both exist to mean I’m certainly not going to choose nothing – if you’ve brought a major road or railway line to a halt, you’re going to be detained to make sure it can’t just (immediately) happen again.
So we now have to choose from Options 2-4: between detaining him under the MHA or detaining him for something else. I have the sounds of mental health professionals I’ve known ringing in my ears here: the fact that he is on the wrong side of a bridge barrier and appears to be threatening to jump is NOT enough, on its own, to decide whether or not someone is likely to have a mental disorder. Remember, plenty of people who are not mentally ill and never have been, take capacitous decisions to end their lives. We need to see wider context and this includes consideration of drug or alcohol use as well as any other background information that may be accessible. Not easy on the top of a bridge at 11pm, but what is available should be considered.
So imagine that this young man tells you his name and it’s obvious he’s slurring his speech quite considerably. You manage to contact the CrisisTeam and ask whether he’s known to services – the answer you get could and should really influence things here. What if he’s not known at all and has never been seen or assessed? – or; what if he’s an established patient who recently missed an appointment with his CPN?
How does this alter the decision?
Well I would argue, that if you establish that he’s well-known to services and he recently missed a care appointment, section 136 is now well in play because of the overall context. I would think this whether the man is intoxicated or not – he’s known to have mental health problems and is on a bridge threatening to jump. All of that fits the definition of section 136 without difficulty. The only practical problem, will be something that’s not relevant to what I’m getting at in this post – where do we keep this person safe until such times as the alcohol has worn off and the assessment can occur? – that’s another problem for another post.
If he’s not known to services and there is no other objective information to hand suggesting a mental health problem, I would argue that the considerable intoxication is a barrier to s136 being appropriate. I would be detaining that man for the substantive criminal offence and subject to any immediate medical needs, be taking him to custody. Once the alcohol is worn off, he can still be seen by mental health services if the police healthcare staff feel he needs an MHA assessment. Panorama suggests – and my experience and other feedback tells me – that this will be the case only very rarely.
Of course, situations vary – you could have the one where a man is carrying a knife or possessing small amounts of drugs when encountered after reports of someone ‘acting bizarrely’. Should he be arrested for the possession offence, or detained under the Mental Health Act? Well in these examples – assuming he’s not waving the knife around and threatening people with it – we have what you might call a victimless offence. If officers suspect a mental disorder or have good information to that effect, nothing prevents his mental health being prioritised and section 136 being used. Should that assessment reveal to an officer’s surprise that the person is not mentally disordered, then when section 136 is brought to an end, criminal justice considerations can still arise around the original offences.
So what am I saying here that I suspect is not happening in areas with high rates of section 136 usage, and which have low rates of correct identification of vulnerable people with unmet mental health needs? I’m saying that you do this, whenever multiple detention options arise –
1. Arrest the person for the criminal offence, unless –
2. The offence is victimless or trivial;
3. The victim has not called the police to report a crime but to secure help for someone at risk;
4. In all the circumstances there are good reasons to suppose mental health is the most important issue to address first.
5. A greater leaning towards the MHA rather than an offence wherever children are involved.
And if officers keep in mind that behaviour is often best by drug or alcohol use where that is known to have occured it is probably best to stay clear of assumptions about mental illness – unless they have objective, corroborating information suggesting a history. Apply this approach to detentions and you will find you’re not ignoring woundings, robberies and rapes by using the MHA; you’re not criminalising vulnerable people for minor offences when health and wellbeing should be prioritised. It also means you’ve stacked your deck in such a way that means if this approach has given rise to the few cases where it isn’t appropriate, you can still reverse your decision when more becomes known.
The old Code of Practice to the Mental Health Act (1999) said section 136 was not a substitute for the use of substantive police powers. This was wise advice, something I regret was removed from the latest Code (2008) and which I’ve suggested should be reinstated in the new one (2015). But meanwhile, the above approach is something that every police officer in England and Wales could apply now – and in some areas, I’m convinced based on my experience and my research, it would significantly lower the use of section 136 and ease pressure on our mental health system. It would make it easier for the NHS to provide those services we want to see, like health based place of safety and street triage services.
So why don’t we just do it? – by briefing and leading our staff to this effect? Every police officer could choose this approach today.
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