You may have noticed in the BLOG published yesterday, I didn’t really address the question of what ‘correct’ use of s136 actually is, despite criticising throughout the lack of precision by others who raise the topic of correct use, or over-use of this provision. This was deliberate – I’ve covered the topic elsewhere on this BLOG for many years and I was forced to think really hard about it earlier in 2016 when a Coroner wrote to the College of Policing following an incident in Hampshire where officers arrested a vulnerable woman for an offence, rather than detain her under s136. It gave rise to the debate I’ve had many times, about when should officer detain under the Mental Health Act 1983 (MHA) and when should they arrest for an offence, if both options are available?
In yesterday’s BLOG, I argued that it would be necessary to look at data from police forces that is generally not available, when trying to reach any kind of assessment about ‘correct’ usage of section 136 – especially if various figures in mental health services and in Government are intuitively prepared to argue against the instinct of Baroness HALE, that s136 MHA is under-used. If an apparently suicidal person on a motorway bridge is threatening to jump, when – if ever – should they be arrested for the public nuisance offence or Road Traffic Act 1988 offence? We do know that some people who have mental health problems have been criminally prosecuted and that others have been diverted under the MHA: what variables influence this?
But I decided to re-address the question, for clarity’s sake and because someone on social medica accused me of ducking it, just as I was accusing others of doing! So here’s what I’ve previously said, amplified in light of where we now find ourselves in 2016 with things like street triage and legal reform –
ARREST OR DETENTION?
Well, this has been my standard answer for years, about how to make the decision between mental health criminal detention: I’ll get explicit about ‘correct’ usage, immediately afterwards –
- You arrest for the criminal offence, UNLESS: >>>
- The offence is trivial, especially if it is ‘victimless’; or
- The victim reporting the incident is not seeking a justice response, but is seeking help for someone they know to be suffering from mental-ill health.
- That in the circumstances, the conduct is more likely than not attributable to mental health problems which should in the circumstances be prioritised.
The idea here, is that police officers will prioritise the health of people who may have offended in a minor way and only criminalise those where the offence is more serious and where greater consideration may need to be given in light of more information as to whether diversion is the right approach. It often will be, but it’s hard to judge such things on a bridge over the M42 at 10pm on a Tuesday.
So what is ‘correct’ usage of s136 MHA? – in addition to thinking about any offences that may be involved, we also need to think about whether detention is actually necessary at all and we need to respect the limits of the powers that Parliament have afforded to various health and social care agencies.
ALTERNATIVES TO DETENTION
Avoiding detention of any description is connected to the ability to avail other options: and this shouldn’t come as a shock. Policing research from fifty years ago by Egon BITTNER, and then developed by Melissa MORABITO around 10 years ago showed that arrest decisions in mental health encounters are clearly linked to police officers’ knowledge of and ability to access alternatives. Common sense, isn’t it?! … but it means that alternatives need to exist, police officers need to know that they exist and they need to know how to access them. This is why I’ve often smiled at the feedback we hear about street triage schemes claiming that they are reducing ‘inappropriate’ use of s136.
I’m not saying that some use of this power isn’t inappropriate – it always has been and it probably always will be. But there are two points to make about this supposed, ‘inappropriate’ use: firstly, some triage nurses have been known to suggest ‘inappropriate’ use when working with the police as they find themselves jointly responsible for situations they cannot otherwise resolve in private premises! Secondly, a police officer using the power to take a patient (most people made subject to the use of s136 are known to mental health services) to services isn’t an example of ‘inappropriate’ use if that officer cannot otherwise facilitate an encounter in circumstances where they believe it is urgently necessary to safeguard someone. In fact, there’s actually a third reason that no-one seems to want to talk about, which is there is reason to question how appropriate it is to be making decisions about suicidal people during ten or fifteen minute interviews on cliff tops and in the backs of vehicles. Most police officers can tell you, that putting time and space between people and difficult circumstances can be a very effective way to alter mindset and diffuse emotionally charged situations.
So it seems to follow that ‘correct’ use of section 136 MHA is —
- Proportionate – detention reflecting the potential seriousness of any inaction.
- Lawful – hardly seems worth emphasising, does it? … but so many professionals – not just police officers – still seem to struggle with the idea that it is unlawful to manufacture someone’s presence in a public place so as to ‘allow’ use of s136.
- Appropriate – in terms of an inability at that time to access alternatives to detention; and in circumstances where it is not necessary to arrest someone for any offence.
- Necessary – in the opinion of the officer whose responsibility the exercise of the power is.
FOR THE AVOIDANCE OF DOUBT
The debate we hear on all this is still remarkably and surprisingly ill-informed: over the last two years I’ve challenged a lot of mental health trusts, professionals as well as political and journalistic commentators – without except, suggestions of ‘correct’ usage or allegations of ‘inappropriate’ use fold, as soon as you start challenging. We still hear people using the conversion rate argument about s136 – the idea that unless any detention by the police ‘converts’ in to someone being sectioned by an AMHP and two doctors it was ‘inappropriate’.
That sort of claim always makes me drag out my story about the bloke detained after being persuaded back over an M6 motorway bridge who was then detained s136 MHA and then sectioned by an AMHP and two Doctors under s2 MHA. Three days after being admitted for assessment, he suddenly became lucid as the temporary effects of pharmacy drugs and celebratory alcohol wore off. Was the use of s2 MHA ‘inappropriate’ just because it didn’t lead to a confirmed diagnosis? – of course not.
But as ever, as research has shown for years: whilst the trick to reducing s136 does lie partly in effective police training and more importantly in leadership, it lies more usually in timely access to appropriate crisis services both for patients and police officers in contact with them. The less of them you have, the more likely your local constables will be inclined to use this mechanism to bring together patients and professionals where urgent safeguarding needs indicate this is necessary and otherwise impossible to achieve.
So some of the variables you’ll need to understand if you’re going to look at the use of s136 across police forces, is the percentage spend by CCGs on mental health; the configuration and exclusion criteria of crisis mental health services; and the degree of integration that exists in that area across the health and social care organisations to prioritise mental health. We know that this varies across England – why wouldn’t it affect the decisions of police officers working alongside such dysfunctional systems given what research tells us about detention decision-making?
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