Three Days In Custody

I woke recently to find a story in my social media news-stream that caught my attention – such things happen quite a lot, to be honest, but the BLOG has now been going for so long that I don’t find time to highlight and deconstruct each one – there are well over five hundred posts to keep you occupied on the long winter nights and a story that raises issues I haven’t already covered is becoming harder to find.  Enter this story from Staffordshire which was publicly highlighted by the Police and Crime Commissioner, Matthew ELLIS in September where a man was detained in police custody for 64hrs, involving 22 officers and an estimated £20,000 in policing costs. For the want of an appropriate, timely and accessible mental health bed.

The police were called to a situation in which a 47yr old man in distress had pulled his trousers down to urinate in the street.  He was described in the article as ‘having absconded from a London hospital’ – I will treat this to mean he was a legally detained under the Mental Health Act in London and had left without permission or had failed to return from authorised leave.  (If he had been in hospital on a voluntary basis, then he couldn’t have ‘absconded’, legally speaking, because he would have been free to leave if he so chose.)  This means his re-detention in Staffordshire would have occurred under s18 of the Mental Health Act, the man being a patient who is considered absent without leave.

SECTION 18

This particular power is one that has featured in a few complaints and IPCC inquiries recently.  I have been asked a few times to advise Professional Standards or IPCC investigators to understand this law, to ensure they are correctly commenting on police duties and responsibilities.  Section 18 is not a subject that is covered in the national police training curriculum – it will be from early next year, but it was never mentioned to me when I joined the police and I think my third-ever mental health job was a situation in which s18 was the power in question.  I remember looking at the other probationary police officer I was working with and neither of us had a clue what to do … so detailed understanding of this power is not common and that is relevant to this situation.

Where a patient is Absent WithOut Leave (AWOL), section 18 allows the person to be taken in to custody and returned to the relevant hospital.  In this case, the relevant hospital is the one in London from which he had absconded.  So once Staffordshire officers have used s18 to re-detain him, the main question is in connection with how he is returned to the capital.  The phrase ‘taken in to custody’ in s18 does not mean taken in to police custody in the sense of the cell block; it refers to the patient being taken into a condition of legal custody by a police officer, an Approved Mental Health Professional or by anyone else authorised by the London hospital managers.  In that sense there should have been no circumstances whatsoever in which an AWOL patient should have been detained in police cells.  When I hear of it, I always think of the human rights case Aerts v Belgium which ruled that people who are legally detained should always be detained in locations which are relevant to the specific circumstances: patients detained in hospitals; prisoners detained in prison, etc.. Missing patients detained in police cells? … would be interested in legal views on that one.

The article refers to officers taking the person to a local mental health unit: I briefly wondered about whether the officers had initially used section 136 to detain the man and taken him to a Place of Safety? … some PoS services can be a bit funny about allowing their facility to be used for anyone who is not detained under either s135 or s136, even where they have been detained under other MHA mechanisms so perhaps the police holding powers were used first and his AWOL status only confirmed later? It may not have been possible at the point of arrest to know who he was  or to know his MHA status so perhaps that was uncovered at the PoS unit? Assume for a moment this is true: why not allow a s18 detainee to remain in a place of safety until arrangements could be made to return him to hospital or admit him locally, once this status became known? Nothing in law prevents this, yet the article insists that after seven hours in the local unit, “staff demanded police remove him.”

I’ll just leave that thought there: an known MHA patient was removed from an NHS unit which should, according to national guidelines, be designed and operated to manage patients with disturbed behaviours. Not the first time this has happened: indeed recently an inquest focussed upon NHS staff calling the police to a unit for someone who has not legally detained and demanding their removal.

POLICE CUSTODY

So bereft of other options, this man arrived in police custody around half six in the morning on a Friday and remained there until around 10pm on a Sunday evening. During that time, the man’s behaviour – because of his illness – was described as ‘so extreme’ that a whole wing of police custody was given over to him. I wondered whether nursing support was arranged in custody via the NHS – nothing prevents this, I’ve sought it and seen it many times as the NHS seek to rely upon custody as a ‘staging area’ for patients who are considered unmanageable in an NHS PoS.

This description also led me to wonder whether there were sufficient similarities with MS v UK [2012]? – a case which led to a ruling by the European Court that a patient’s Article 3 European Convention rights had been violated? The very point in hand in MS v UK was the protracted time it took to arrange an admission for a man who was in ‘dire need of psychaitric treatment’. We could also wonder in this case, whether Article 5 was engaged? – the right to liberty not only means your liberty not being removed except by a process prescribed by law; it also means that when your liberty is removed you are held in a place which is relevant to the reason for that restriction. As mentioned above: nothing in s18 or the MHA allows specifically for the detention of a patient in police custody for almost three days purely because the NHS are having difficulty returning someone to London or arranging admission to a local bed.

I’ve raised these kinds of issues many times for discussion with NHS managers – sometimes hypothetically, sometimes in light of specific incidents. We see one of the typical reactions in the response quoted in this article: that there is a lack of relevant services.  We may wonder whether the undertone to this remark is a lack of resources to fund services and in this case, a lack of psychiatric intensive care services in Staffordshire or conveyance services to return patients who emerge some distance from the place they were detained. I remember reading of a case cited in the MS v UK arguments (whose name I’m damned if I can remember!) but it was a human rights case in Ukraine which led to the European Court to rule that economic resource arguments are never a defence to admitted violations of the Convention. In other words you cannot say, “We unlawfully detained and degraded the patient but had no other option in difficult circumstances because we don’t have the facilities or resources to do otherwise.”

If any lawyers can remember than name of that case, I’d be very grateful to know of it!  I’ll leave these thoughts with you.


IMG_0053IMG_0052Winner of the President’s Medal from
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.


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8 thoughts on “Three Days In Custody

  1. It happened to me also.
    Went awol while on section 2 and was picked up by police about100 miles away. Was taken to a police cell where I remained in distress for about12 hours while there was an argument over who was responsible for transporting me back to my home hospital. Eventually 2 staff from my home area came down by taxi to retrieve me.

  2. Should we not also be training and equipping staff in the police enquiry centres, so the relevant questions can be asked as to what arrangements the caller has or will be making to facilitate the return of such absconded patients.
    By the police asking these questions as part of the at the initial reporting of a missing patient would allow the reporting agencies to provide details of how they intend to facilitate the return of any AWOL patients so an action plan can be put in place if the patient is located. Any lack of detail in regards to what steps the reporting agency will or has put in place should be resolved at an early stage. Any action plans agreed also need to be documented in detail, not just a phone number to ring.

  3. One would have thought the obvious answer was a brief admission to a local appropriate ward for the time taken (presumably hours??) to book an appropriate vehicle to take him to his hospital?????????? Struggling to see why there was any need for police custody ( or a 136 suite) once he had been identified……

    1. You would reasonable think would you!

      However u are assuming that there was a bed in Staffs that they were willing to let him have & that his bed in London was still available. Unfortunately when some one is registered with a GP elsewhere with a CCG contract with a different MH Trust, MH Trust are v reluctant to give up one of their own beds for preps from other parts of the country. Plus this seems to have been about the lack of a PICU bed & I suspect that the NHS was casting about the Private (for profit) provision who based on his disturbed behaviour used their own gate keeping assessment to say no thanks.

      It would also require a private (for profit) ambo to convey him.

      As AMHPs we think peeps should be admitted locally if required & then transferred. But this does not happen. I have personally had to coordinate MHAAs that have ended up with peeps being placed in the back of private (for profit) ambos a transported back to their home areas or to other parts of the country to private hospitals because that is where the bed is.

      Not all NHS PoS operate as you might hope or think. Indeed the lesson I learn most days is that this crisis MH stuff does not operate as we might reasonable expect it to.

  4. This Turkish human rights case may be relevant:

    Asiye Genç v Turkey (European Court of Human Rights, January 2015, Application No 24109/07)
    http://www.bailii.org/eu/cases/ECHR/2015/78.html
    http://eurorights.net/euro-rights-blog-emergency-health-care-and-article-2-echr/

    In 2004, a newborn baby died in an ambulance after being refused treatment for urgent breathing difficulties at three hospitals in the region; each hospital had said it had no suitable or available neonatal facilities and had turned the ambulance away.

    The Court found that the Article 2 ECHR right to life had been violated, and that the State has a positive obligation to provide a system of public health care and hospitals.

    It’s no excuse for individual hospitals and clinics to say they don’t have the facilities to take the patient; the state is obliged to ensure there’s a suitable system of healthcare in place that can accommodate what are predictable healthcare emergencies.

  5. But surely, if he was on leave then he was the responsibility of the London hospital and once he was found they should have paid for his transport back.!!!!! Does anyone ever stop to think how the poor patient feels when health services are so happy to make it clear that he is just an inconvenience to everybody.

  6. I merely describe the currently reality. I don’t defend it & I think about the impact of it a lot.

    On sec 17 leave or AWOL it was very definitely the responsibility of the detaining authority (aka the hospital managers in London) to sort a bed & maybe pay for the transport. I say maybe cause it mignt also fall to the CCG.

    If they didnt still have a bed in London or thought it no longer suitable, or couldnt secure a NHS PICU bed or one in the private sector this is all too often how it plays out.

    The currrent reality is sometimes (too often) very far removed from the rhetoric & while I agree responsibility sits with services an element of it also sits with politicians & those that choose where to spend the $.

    Again I dont defend it & collegues & I are sometimes overwhelmed by it & wonder how it has been allowed to get to this.

  7. Should the bed of a patient under section be allocated to another when they are on leave?
    Part of the process of sectioning a person involves securing a bed.

    But maybe if commissioning bodies (I’m looking at you, CCGs) actually ensured adequate provision, only the transport would be an issue.

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