It is now a requirement of the new Code of Practice to the Mental Health Act that police officers should, where possible, ring a mental health professional before initiating their use of section 136 of the Act. Whilst that process is going on, there is a very interesting legal situation in play! –
Is the person detained whilst the phone call is happening and free to walk away? – or not?!
It could conceivably take many minutes to get through to a mental health nurse on a triage or crisis team, to explain the circumstances and form a view or exchange information relevant to the officer’s decision. If the person walked away before the phone was answered or whilst the conversation was ongoing then the officer would have to decide whether or not to legally detain the person –
- If they would legally detain that person, were they not, in fact, detained from the start?
- If they would not detain the person, why were we ringing the mental health nurse as an alternative to s136?!
In other parts of police law, it is demanded by Codes of Practice that people are told whether they are detained (for example, for a s1 PACE ‘stop and search’) or free to walk away (voluntary interview at a police station). This information is vital both to a person’s understanding of their legal position and to their ability to draw upon the rights and supports they are entitled to.
DE FACTO DETENTION
The last time I had an encounter with the police service as a private person, it was in relation to someone else’s mental health incident – I’m obviously not going to describe what was involved or why I was but this grey area of whether someone is detained against their will or not became important. I remember saying to the police officers, ‘This person is either detained or they’re not – so they can either walk out right now or you should inform them of why they are not allowed to do so, that they may exercise the legal rights you haven’t explained to them, if they wish.’ Stoney faces all round.
That was not a street triage, avoidance-of-s136 type incident because there are various versions of de facto detention in policing and mental health, as there are in mental health care more generally. In case you are unfamiliar with the term, it relates to circumstances in which someone is, in fact, detained without having been held by law,. informed of them fact and having had their rights explained to them. So less possibility of fuss being kicked up by the individual, who has been disempowered, or by relatives or solicitors on their behalf.
The various versions include –
- Officers ‘voluntarily’ assisting someone to A&E – and then remaining there to ensure the person doesn’t leave. Was this person not, in fact, detained to A&E but without resort to legal niceties? How often do we see officers signposting people to A&E and then staying with the person because there is a potential risk and the officers know that A&E won’t detain the person?! In what sense was that person not detained?
- Holding someone whilst waiting for street triage – it could take fifteen minutes to half an hour for a street triage resource to turn up at an incident where frontline officers are waiting with someone. What if that person didn’t want to stay – did we make it proactively clear that they didn’t have to? What if we had made it clear and they walked, only to then be detained under s136?! Trust and confidence taking a hit, I suspect.
- Holding someone in custody after PACE expires for an inpatient MHA bed to become available – we can estimate that this situation occurs every day in England and Wales, under what laws we’re not quite sure. Yet we are sure that they were able to leave the station because a custody sergeant with no grounds to detain the person will have been told by an AMHP or psychiatrist that they can’t be released.
- Falsely using other legal powers as a proxy, in private premises – we know that stories still abound about officers detaining people to prevent a breach of the peace; or to remove someone outside a premises where s136 is then instigated; or relying upon the Mental Capacity Act. In fact, what has been interesting about street triage is the extent to which mental health nurses think these things can be done, too!
So this is a post about rights, in essence. I like to exercise mine from time to time because they are my rights – the things I don’t have to justify or explain to anyone when I’m making important decisions about myself.
I’ve had this niggle from the start about this aspect of street triage, because it sits alongside the other kinds of de facto detention we’ve seen in the past. There is no statute I’m aware of that allows someone to be detained by the police for the purposes of the police contacting someone else – and this is a frustrating part of the job, on occasion. More than once in my career I’ve approached someone for a discussion and found that they ran immediately. Maybe they were wanted on warrant by the courts or missing from somewhere and keen that I didn’t do a PNC check to discover which. What I do know is that in some of those situations I had legal grounds to grab them as they started to run and in others, I didn’t. So some got grabbed and we invariably learned something surprising a few minutes later, but others were left to it.
To avoid complaints, unnecessary detentions and assaults, it’s important we’re clear about the grounds upon which we start interfering in people’s lives. Some people, notwithstanding the problems in their lives that arise from trauma, illness and distress, don’t want to engage with mental health services and unless and until relevant laws are instigated by those who feel people should be compelled into assessment or treatment, these are decisions they are free to exercise, just as people can with other kinds of healthcare. The law requires us to assume people have capacity for such decisions, until otherwise determined. So there are additional ethical questions that arise from the role of the police as gatekeepers to our coercive mental health system and this is a discussion we don’t hear much about at the moment.
Winner of the Mind Digital Media Award.