I’m going to start with a disclaimer! – this post is thrown together to prompt discussion. I am not (yet!) putting this forward as a position or suggestion; I’m not even saying I’ve finished thinking this stuff through or that I believe every point made below. This stuff is not settled in my mind and is written purely to prompt discussion of a couple of things we seem to be taking for granted. All views very welcome in the comments section below.
On Monday of this week, I was asked to present to the PACE Strategy Board at the Home Office – this is a regular gathering of interested parties who oversee and discuss the issues that arise from the administration and application of the Police and Criminal Evidence Act 1984the Police and Criminal Evidence Act 1984. It is attended by the Police Chief’s lead on Custody, Chief Constable Nick EPHGRAVE (Surrey Police); Emeritus Professor Michael ZANDER, the UK’s top legal guru on PACE; and other representatives of bodies like the Crown Prosecution Service, the Law Society, and so on. The problem I presented on is one that will be familiar to regular readers of the BLOG: a person in custody for an alleged offence has been assessed by professionals under the Mental Health Act and is deemed to need admission to hospital but no bed is available and question arise about the legal governance of their detention.
There have been some high-profile examples of this –
- You may remember a Tweet by Assistant Chief Constable Paul NETHERTON which made national news headlines in October 2014 after a 16yr old girl was in custody for almost two days.
- An application for Judicial Review was made by Greater Manchester Police in 2005 and they referred themselves to the IPCC after a man was in custody for over three days.
- In 2012, a West Midlands Police case involving use of s136 of the Mental Health Act led to detention exceeding the 72hr permitted maximum in a case which was subsequently ruled by the European Court of Human Rights to have violated the Article 3 rights of the man involved.
Well, this morning I woke up to find a tweet had been sent to me and many others, highlighting yet another situation where a child was being held in custody pending the identification of a bed that didn’t appear to exist; and in a great piece of work by journalist Andy McNICOLL we seem to have information confirming what most of us working in this area already know: problems with timely admission to hospital are getting worse. That being the case, it seems highly likely that the number of police related problems will be rising too. That’s certainly what my emails tell me!
In case you haven’t seen the previous posts I’ve done or want a summary reminder, the legal problem is essentially this –
- When someone is in police custody under PACE for an alleged offence, they can only be detained to charge them with the offence for which they have been arrested; OR detained because it is necessary to allow for efforts to secure such evidence.
- Until an Approved Mental Health Professional (AMHP) makes a written application for someone’s admission to hospital under the Mental Health Act, PACE continues to govern the detention of the person detained.
These two provisions of PACE are absolutely crucial to this situation –
- Section 34 of PACE – general limitations on police detention: in particular, you should look at s34(2) –
“If at any time a custody officer (a) becomes aware, in relation to any person in police detention, that the grounds for the detention of that person have ceased to apply; and (b) is not aware of any other grounds on which the continued detention of that person could be justified under the provision of this part of this Act.”
- Section 37 of PACE – the duties of a custody officer before charge: look at s37(7).
“Subject to section 41(7) below, if the custody officer determines that he has before him sufficient evidence to charge the person arrested with the offence for which he was arrested, the person arrested shall be (a) (i) released without charge and on bail, OR (ii) kept in police detention for the purpose of enabling the Director of Public Prosecutions to make a decision under section 37B below, (b) shall be released without charge and on bail but not for that purpose, (c) shall be released without charge and without bail, or (d) shall be charged.”
PUSHING THE ENVELOPE
In previous posts on the ‘no beds‘ problem, I’ve alluded to the fact that worry about the legalities of detention on the part of the police only kick in when the PACE ‘clock’ reaches the 24hr mark. This is not strictly correct, though – as two provisions of PACE show us and they follow on from the custody officer’s duty to keep grounds for detention under constant review –
- If the person was originally detained because there was insufficient evidence to charge the person and the custody officer reaches a view that there is now sufficient evidence to charge the person, they must charge them or release them on bail (for CPS advice or other reasons, as they see fit) – this is in s37(7) of PACE.
- If the person was originally detained because there was insufficient evidence to charge the person and the person is held because it is necessary to secure evidence, then the custody officer must release the person (either with or without bail) once that necessity ceases to apply – this is in s34(2) of PACE.
Nothing in PACE itself provides grounds to detain someone for a Mental Health Act assessment – so a vital question is ‘does conduct of that assessment contribute to the gathering of evidence, relevant to determining whether someone should be charged? Unless the answer is that it does, it returns us to our quandary!
Obviously, PACE Code C covers the detention and treatment of someone whilst they are held in custody and it has various things to say about those detained whilst suffering a mental disorder. It covers the need for appropriate adults, amongst other things. However, in keeping with the legal issues for physical healthcare problems, there are a range of options for the custody officer to secure assessment from an Approved Healthcare Professional – an AHP is usually a doctor or nurse working for a contracted healthcare provider to assist the police with medical opinion about those in custody and shouldn’t be confused with AMHPs mentioned above! AHPs are generic healthcare staff who do fitness to detain / fitness to interview assessments in custody; AMHPs are (usually) mental health social workers who coordinate Mental Health Act assessments.
If someone in custody was arrested and then discovered after detention in the cells to have an injury, the police must either call for an AHP to attend custody and assess that person; or transfer the person to hospital (by ambulance if need be) should the situation not be something that can wait for the attendance of an AHP. So if the guy in the pub fight has possibly broken a finger whilst punching people, the AHP would assess that and may give him the option of waiting until release to attend hospital, having some painkillers whilst in custody or the arresting officers being asked to run him to the Emergency Department for an assessment / x-ray or whatever he requires.
If, following the call to the AHP or whilst that person was at ED, the grounds for detention change or no longer apply, the custody officer would act accordingly by ending or changing the grounds for detention. I’ve been the PC at the hospital who had taken someone there from custody and was told whilst waiting for treatment that the person was to be released from arrest for various legal reasons. Maybe the person arrested for assault is detained pending enquiries, statements and CCTV recovery and whilst waiting in ED, it is established that the victim of the offence does not with to complain of any assault and there is no other evidence? … the person is released from custody and he can then take his own decisions about his broken finger and whether to go to or remain in the ED.
PARITY OF ESTEEM
So is mental health any different, because of the potential that a person arrested may lack capacity to take their own decisions if released? We start from the position of presuming someone has capacity but we know the police encounter and arrest people in crisis and bear an obvious duty of care to ensure that person’s welfare to the extent that they lawfully can. But the PACE point remains: if the grounds for detention cease or change, the custody sergeant is obliged to act accordingly and then any subsequent questions about the welfare of a mentally vulnerable person become something that should be subject to other decision-making. So it is potentially quite possible that someone detained without charge for enquiries to be completed, could be released from custody if the grounds cease to apply notwithstanding that they are mentally unwell to an as-yet unassessed degree.
Imagine, for example, a young adult who lives with a relative: the police are called to a crisis incident in the home they share and upon arrival it is obvious the person is unwell and has assaulted the relative, quite seriously. They are also in immediate need of care and because officers in private premises have no powers under the Mental Health Act itself, they arrest the person for the assault and take them to custody. MHA assessment is requested by the AHP because of the concerns about their health and the relative is giving information that supports the need. However, the relative is merely grateful for the police turning up and safeguarding the person, refusing to make any complaint of criminal conduct because they believe this has only happened because the person is ill and in need of help.
What are the grounds for detention now? – on what basis is the person detained for MHA assessment?! Assuming there are no further enquiries which could realistically be done to ensure there is evidence for an offence, s34(2) applies and the person should be released, either with or without bail. What happens around mental health assessment will depend on circumstances and goes back to the same kinds of considerations as officers would apply if the first encountered the person where there is no criminal allegation.
I re-stress the point: this is a thought-piece and I’m still thinking this stuff through after two very separate conversations following the PACE Strategy Board forced me to think about some stuff that I realised I’d assumed or taken for granted. But all this begs a lot of interesting and potentially complicated questions for me, I must admit – and it does appear to have rather major implications, I’m afraid! – if PACE obliges the custody sergeant to release someone (under either s34 or s37, for whatever reason), should the officers then consider the need to rely upon s136 MHA after release?!
I can already hear objections to this: and I’ve acknowledged them myself in the discussions I’ve had before writing this BLOG with an AMHP friend of mine, some force mental health leads, etc. The objection is normally, “How would you regard that person has having been ‘found in a place to which the public has access’ if they are only in that place because the police released them from custody. There are two points to immediately make here –
- If this is a problem at all, it will only be a problem for about six months or so – the Policing and Crime Bill will change s136 to ensure it can be used in any private place that is not a dwelling. So it will be able to be used in police custody in the near future and the person can then be removed to a Place of Safety for the assessment, assuming other aspects of the definition for the use of s136 are satisfied.
- But it may not be a problem! – some argue police custody is a place to which the public have access because it is expressly set up for receiving the public and lots of other locations are still such places despite access being controlled or restricted – like the ‘airside’ in airports. And even if it’s not, the circumstances of someone being in the police station front office or road outside are not because of any subterfuge by the police to create the situation – they were obliged to release the person from arrest!
And if this point is right: what would that mean for the use of s136 MHA, especially when the law changes next year? But then what this does do – if it’s even vaguely right! – is ensure that people in police custody thought to be mentally unwell are not detained in police custody, where that is not necessary in terms of the criminal justice process. So this is an argument about de-criminalising the process of ensuring the health and wellbeing of people who do not need to remain in police custody, for reasons around investigation and prosecution.
Of course, there will be some situations in which conducting a Mental Health Act assessment is a part of the overall criminal investigation and relevant to issues around securing evidence and potentially interviewing the suspect. I would suggest these will tend to be the more serious cases where there may be a need to prosecute someone in the public interest notwithstanding how unwell they may be. It is occasionally the right thing to do.
As said: this is a discussion piece – all views welcome, below.
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