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.
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.
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 ? – 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.
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