For an issue that is increasingly on the radar, the debate we’re enjoying about policing, mental health and criminal justice is all too often void of certain important details. I suppose it’s easy for me to say this – I get to do this stuff all day, every day and phrases have long since been thrown in my direction like ‘lives and breathes’ or even ‘totally obsessed.’ Fair enough, I suppose!
We see confusion in many areas, especially on anything connected to the ‘Place of Safety’ concept. I’ve said this before, but let’s take time to remind everyone:
A “place of safety” is a legal construct for those of us who are detained by the police under the Mental Health Act. It is nothing whatsoever to do with anything if someone is arrested for a criminal offence or detained under any other law – and it is nothing whatsoever to do any with anyone who is not detained at all. So whilst hospitals, police stations and so on may well be “a place of safety” there is no point having a conversation to that effect unless you’re referring to or dealing with someone is who is detained by the police under ss135/6 of the Mental Health Act.
We saw last year how confusing this can be: Panorama set out to show how dreadful it was that vulnerable people in Southampton were being detained in police custody by Hampshire Police when a place of safety should be available, only to demonstrate this point by showing a lot of individuals who had been arrested after allegations of offences. Even some of the officers in the programme bemoaned the fact that they had to take people to custody instead of being able to access health services yet the law says that the people featured absolutely should be in the cells. That’s what the Police and Criminal Evidence Act demands in this situation. The programme was saying, “Look at the police, acting just as the law says they should whilst being confused about it.”
We saw this again last week after a piece in the local media about a man in Norfolk who had been arrested for a Public Order Act offence. Questions had been raised about his mental health in police custody and after assessment he was in need of admission to hospital under the MHA – a lack of bed provision meant there was a wait before a hospital application could be made and the bed involved was 175 miles away, in Brighton. The piece starts with the normal narrative and then bridges a link to place of safety statistics by referencing the recent incident where a 16yr old girl was held in custody for two days in Devon. Of course, place of safety statistics are irrelevant here, except as general indicator of a related, yet totally distinct problem.
Then we have the issue of when someone is ‘sectioned’ – the Norfolk article just cited made this error, when it talked about someone being ‘sectioned’ when there was no bed. I’ve argued before that police officers misunderstanding when someone becomes ‘sectioned’ has caused more problems and illegal detentions that we realise and it appeared to happen in the Devon incident, also. To talk of someone being ‘sectioned’ is to use informal, non-legal language. In practice, it usually means that someone has been made subject to an application by an Approved Mental Health Professional for admission to hospital under the Mental Health Act. It will usually relate to section 2 or section 3 of the MHA, but it can relate to s4 as well. The informality of this term ‘sectioned’ is seen by the fact that occasionally, it is used by others to mean other things: I’ve heard of police use of section 136 be referred to in this way and mental health professionals often object because that is something only ‘they’ can do. The reality is, it is informal language that could mean any number of things.
But there is something really important about this term when used in its common context: the point at which someone becomes ‘sectioned’ is that point at which they may be detained against their will be others. It is initially the AMHP making the application who gives effect to the condition of ‘legal custody’ that follows the application to a hospital. They may then detain and convey that patient under s6 of the Act to hospital and may authorise others to detain and convey on their behalf. But until that AMHP makes that application to hospital no detention framework exists under the MHA. So where someone is arrested for a criminal offence or to prevent a Breach of the Peace, they remain subject to the legal imperatives that follow from arrests until such time as an AMHP makes a full, complete written application to a hospital. Where the AMHP has medical recommendations from a Doctor on which to base an application, but they have not yet made it because they don’t know which hospital has an available bed, the person concerned is not (yet) ‘sectioned’ under the MHA. If the person were already in police custody, they remain subject to the Police and Criminal Evidence Act 1984 or to the Common Law implications of detaining people who were occasioning a breach of the peace.
As we saw in Devon: arrested on Thursday evening, application made on Saturday afternoon or evening. The time in custody must firstly be justified without reference to the Mental Health Act. There is a potential that any police force who has done such a thing, may be able to rely upon s139 of the Mental Health Act to protect them from liability, but such circumstances have yet to be tested against this argument so we’re not fully sure! Ordinarily, someone arrested to prevent a Breach of the Peace would be placed before the first available Magistrate and three sets of Magistrates are normally available between Thursday night and Saturday morning. As we saw in Norfolk: a man was arrested for a Public Order Act one day and detained for over 24hrs until eventually an application was made. Again, s139 may protect a Chief Constable from liability arising from this, but that doesn’t render the actions legal.
We’ve seen in recent years a range of stated cases which demonstrate that police officers really, Really, REALLY do not have powers in private premises to manage mental health related incidents. We saw that the practice of arresting to prevent a Breach of the Peace and then detaining someone under s136 when outside the premises was unlawful in the Seal case; we saw in the Sessay case that relying upon the Mental Capacity Act in non-life threatening circumstances is not possible; and finally, the Hicks case has demanded that any arrest to prevent a Breach of the Peace must be made with an intention to place the person before a Magistrate. It is therefore possible to listen to people describing scenarios and, with reference to these cases, rule out coercive action unless the person is also alleged to have committed some kind of criminal offence, as in the Webley case.
So one night earlier this year, the police received a phone call from the ambulance service. A paramedic was in someone’s private home, that person was believed to have long-standing mental health problems and they were intoxicated. No-one was committing an offence, nothing seemed to indicate life-threatening risks and the police were asked to detain the man ‘for his own safety’. Under what law? I’m not really sure any framework of detention could be invoked by the police. On this occasion, the control room sergeant formed this very same view and said so. Whatever needed to happen, it wasn’t something the police could do on their own terms, so no officers were despatched. Two days later, after the man was found dead in his flat, an IPCC inquiry was launched into the decision-making of the sergeant in the control room. I can’t say whether or not the paramedics’ decision making was investigated on the same footing, but the Coroner’s Inquest found problems in how the NHS communicates roles and responsibilities. The sergeant was cleared of any misconduct, but what a way to have to spend 2014 – under investigation following the death of a vulnerable person because you (rightly!) asserted that you had no powers to act and did so knowing that another professional was in just as good a position as any police officer to ensure safeguarding.
This is the contradiction we see, that won’t be corrected anytime soon: the law states the police do not have all the powers in all of the circumstances to coercively safeguard people at risk. Some of those powers belong to others. When the police have historically tried to get around the rules, they have been taken to the civil courts and lost. When the police have tried to adhere to the legal frameworks laid down by Parliament, people look at them aghast for leaving people at risk and their decision-making is scrutinised with all the potential for gross misconduct hearings to follow. We also we see contradiction in the way we look at our police service to manage the most challenging of vulnerable people, those who are resistant, aggressive or violent – whether in public or even within mental health units.
Police officers and forces need to understand how to navigate these waters: how do you police incidents responsibly where you need others to do things they’re not willing or able to do? When the next 16yr old is in custody, do you release the person or keep them detained; when you feel you have to use s136 on someone to keep them safe and they respond with protracted resistance to detention – quite possibly because they are just absolutely terrified – do you take them to custody because the NHS haven’t commissioned services to manage their clinical needs or because it’s too difficult to manage them through existing services?
How do you write-up your notes, your incident log or your custody record in such a way as to ensure that if you do end up doing something for which you’re struggling to find clear legal grounds, you maximise the chance that those who look back in hindsight will find virtue and morality running through the decision-making and a clear absence of other options?
So this interface is about finding the least worst option amidst confusion, conflation and contradiction.
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