The most surprising thing about today’s CAMHS related incident in police custody is that we were surprised in the first place. We know that right across children’s and adult mental health care, there have been other, very similar incidents to this one before. MS v UK is a human rights case heard in 2012, which occurred in Birmingham in 2004 and saw a man detained in police custody for over three days, well beyond the statutory maximum period allowed. The bottom line in that case was debate amongst different NHS services about bed provision. I’ve recently heard of a young man detained for over five days, whose parents were very grateful for the undoubtedly illegal safety and care the police were able to give him, whilst the surrounding health and social care system worked out what was the best thing to do and I’ve previously flagged up cases in my own experience that looked similar in nature and were unnecessarily protracted because of bureaucracies that probably wouldn’t survive contact with a legal challenge.
What I know about this case, I know from the media stuff we’ve seen – so here’s as good a summary as I can infer from what I’ve read —
On Thursday 27th November, Devon and Cornwall Police were called to Torbay hospital where – for reasons we don’t yet know – they have arrested a 16-year-old girl who they contended was Breaching the Queen’s Peace. She was then detained in custody at a police station in Devon pending an assessment under the Mental Health Act. The police described her as having been ‘sectioned on Friday’ and problems were encountered finding a bed. Following considerable media attention subsequent to use of social media by a senior officer, a bed was identified and the young woman transferred under the Act to a hospital place on Saturday evening after two days in custody.
EUROPEAN CONVENTION ON HUMAN RIGHTS
There are three separate provisions of the European Convention on Human Rights that are potentially relevant to this type of situation and we’ve seen many of them raised in British cases.
- Article 2 – the right to life
- Article 3 – the prohibition of torture
- Article 5 – the right to liberty and security
We could touch on other aspects of the Convention, but these serve to make the point I’m trying to make, which I have made previously on this BLOG.
Let’s start with the arrest decision: I had wondered as the story broke what the legal basis was of the original arrest. Maybe officers had detained the girl under section 136 of the Mental Health Act? – two days of detention is certainly not edifying but that provision allows up to 72hrs to make arrangements for treatment and care, so at least it would have an initially lawful basis. Perhaps the original incident was police called to an allegation of a crime and only after arrest for that offence were suspicions raised or information given about the suspect’s background of mental ill-health?
A Common Law Breach of the Peace occurs where a person causes others to apprehend imminent unlawful violence. Using breach of the peace was challenged in a UK human rights case in 2014 which was nothing to do with mental health but which has relevance to situations where we might be tempted to think of it as a ‘proxy’ power in a mental health emergency. In Hicks v The Commissioner of Police for the Metropolis , protestors alleged within the British Courts that the Metropolitan Police had violated Article 5 of the European Convention by arresting them for Breaching the Peace when there was never an intention on the part of the officers to bring them before a ‘competent legal authority’ – a Magistrate, in the English judicial context. The case ended up with an Appeal Court ruling which made it clear that in order to lawfully detain someone for a Breach of the Peace, the arresting officer should have it in mind at the point of arrest, to place the person before a Magistrate as the competent legal authority. The Metropolitan Police was able to show this and won the case but arguably, it now means that where the police respond to a seriously unwell child in a hospital, it would be interesting to know the rationale for why the incident needed to find that child in a Youth Court at the first available opportunity and why an alternative mental health related diversion was not the preferred option. The details of this decision interest me greatly, I will admit.
A quick point on the language of someone being ‘sectioned’ – this is informal language that can mean various things under the MHA but most usually it means that an Approved Mental Health Professional (AMHP, pronounced ‘amp’) has made a written application to a particular hospital for a patient’s admission under either section 2, 3 or 4 of the Act. Unless and until the AMHP has made such an application, the patient is not ‘sectioned’. They remain detained in police custody under whatever legal provision brought that person there in the first place. Of course, a someone detained in connection with a Breach of the Peace should be released as soon as the breach is over, or placed before a Magistrate as soon as one becomes available. Did the breach really continue for two days? – three sets of Magistrates would have sat in the local courts between Thursday evening and Saturday evening.
This then comes to the protracted detention in custody: Aerts v Belgium  is not more often considered in cases where those of us who are seriously mentally unwell are detained in criminal justice settings. In this case, a man was held in a Belgian prison for seven months purely for reasons connected to his mental health. This judgement set down a precedent about the nature of the custodial environment being appropriate to the reason for detention. Clearly prisons are not built to detain those of us who are unwell when the only reason for detention is connected to poor health. This doesn’t mean that unwell people cannot be in prison if they have also been sentenced there by the courts after a criminal trial.
And of course, let us not forget the MS v UK  case, referred to above – this case arose in 2004 and involved a man spending over three days in custody in circumstances where he was seen quite quickly by NHS professionals who recommended that he be ‘sectioned’. The subsequent delay in arranging a bed for his admission amounted to a violation of his Article 3 rights and it was held to be inhumane and degrading. If this young woman was seen on Friday morning and spent a further day and a half in the cells pending identification of a bed – largely as a result of a Twitter campaign, it would seem – then how is that different?! What would be fascinating to know based on the known facts of the incident, is the legal basis for the original arrest and how that extended to two days, during which time Magistrates were available to hear the case.
Reality appears to be, that yet again, the police were absorbing legal and safety risks because the AMHP was not afforded the opportunity to make an application for admission.
SURVIVING CONTACT WITH THE LAW
Let’s widen this out, not least because the situation sounded very difficult indeed. A young person, seriously mentally unwell, needed access to the kind of inpatient service that is often in short supply and which doesn’t always have sufficient out of hours provision to cope with unexpected crisis demand. Of course, most of those things are arguments about resources. We saw in paperwork submissions for the MS v UK case, European caselaw cited about violations of the Convention which arise from resource decisions countries have taken based on economic factors. I cannot for the love of me find the full reference (any human rights lawyers in the house?!) but the shortened version from the (Ukrainian?) is that the economic or ‘resources’ argument doesn’t work. You cannot lawfully derogate from someone’s human rights and then say, “Sorry, we didn’t have the staff” … or beds.
I’ve blogged elsewhere about the ‘No Beds‘ nightmare – I honestly think English law is quite horrendous and out of date on this. The Mental Health Act itself says that AMHPs ‘shall make the application‘ when satisfied that one ought to be made and has taken account of any expressed views or other relevant circumstances. Nothing in this specifically about beds being available and / or hospital managers being willing. Quite separately, the Act also specifies that each area must identify those hospitals to which their AMHPs can make applications in circumstances of special urgency and which hospitals are designated for the admission of people under the age of 18yrs. The Code of Practice to the Act makes it clear (in chapter four) that AMHPs should not make applications under the Act until they have identified a hospital with an available bed. This is often cited by AMHPs as meaning that you cannot make a written application for someone’s admission unless a hospital with an available space is identified and agrees to accept the patient. They will often point out that Professor Richard JONES argues in his Mental Health Act Manual (seventeenth edition) that the advice given by the former Mental Health Act Commission is of ‘doubtful legality’ when it recommends that AMHPs should go to the ‘section 140 list’ and choose a hospital identified for the relevant purpose and make the application anyway.
Whatever the rights and wrongs of this very technical and exceptionally boring argument, I do know one thing about all of this conflict between the Act, the Code and guidance from the CQC’s predecessor organisation that may or may not still be in force and which is all hotly contested — no matter what an AMHP, police officer or assessing psychiatrist decides to do, it must be done in a way that reflects the positive duty on all of those professionals to ensure a vulnerable person’s Convention Rights. You simply CANNOT get tied up in conflation and confusion about what domestic legislation and statutory guidance might or might not mean, find that the inaction gave rise to a violation of the Convention and then just keep saying “We tried our best” or “we don’t have the resources”. I accept a lot of this is about commissioning and managerial decision-making, which is why I’m rather than hoping that senior health and CAMHS professionals in Devon will be discussing this case by 10am on Monday morning.
And of course, whatever our domestic and then European law may say about this situation, we’re into yet another ball-game altogether when you start to consider the wider international obligations the United Kingdom are part of. The United Nations operate two global frameworks that are relevant to this: the UN Convention on the Rights of the Child; and the UN Convention on the Rights of Persons with Disabilities, which includes mental health conditions. It is interesting to note that the United Kingdom is the first country to face an (ongoing) investigation into its record on the UN CRPD.
I personally think that ACC Paul NETHERTON, whose tweets on this matter set off a train of interest, outrage and activity, did exactly the right thing – he was the on-call ACC for a police force who had a fairly obvious human rights violation on his watch and a positive duty to do something about it. His decision to make it more widely known, without compromising the identify of the vulnerable young woman concerned, undoubtedly contributed to a kind of pressure that broke through the bureacratic barriers that too often emerge from the combined effect of our commissioning structures and our ambiguous legal frameworks. In other words, he did his job!
Winner of the Mind Digital Media Award.