There I was, enjoying a short break from almost two days of seige managing hundreds of emails like a real street cop and due to drive to a meeting when Nottinghamshire Police rang up with the question I have already declared to be the winner of the “most difficult legal question on policing and mental health – 2016”. The bookies have now suspended all other bets despite there being almost a quarter of a year left to go!
“We’ve got a bloke in Notts who is apparently missing from s113 of the Scottish Mental Health Act and we need to know whether there is a cross-border power to redetain him!?” Thanking you kindly, Sergeant HORSNALL (the Notts MH coordinator)! … what the hell is s113 of the Mental Health (Treatment and Care) Act (Scotland) 2003?! – I couldn’t freely recall it, if I’m brutally frank with you! I’ve read up on various parts of the Scottish MHA but for obvious reasons have far less knowledge around it than English / Welsh law. I once did commit to memory the provisions in Article 8 of the Mental Health (Treatment & Care) Act (Scotland) 2003 (Consequential Provisions) Order 2005 – it all just trips off the tongue, doesn’t it?! … this order allows for the police in England, Wales or Northern Ireland to detain a Scottish patient when found elsewhere in the UK. This mainly relates to patients who have absconded from mental health units where they were inpatients and obviously, that’s not what Nottingamshire were ringing about! You know when you feel you’ve got your head ’round stuff and someone throws a curve ball?!
First things first: the Mental Welfare Commission for Scotland is a great source of advice on all things around Scottish mental health and capacity law. This includes short guides and summaries in accessible language – worth checking out if you’re in Scotland or dealing with any issue involving Scots’ law.
My interim advice was – whilst I tried to look up the answer! – to consider whether or not the grounds exist for detaining the man under s136 of the English Mental Health Act; and if so, that would allow removal to a Place of Safety where people who know more about this stuff can unravel it all! It also has the advantage, being quite honest, that the person can be removed to a local health facility pending that unravelling and any decision about whether or how the person will be returned to Scotland. If we could latch quickly on to a specific and obscure legal power that we think allows re-detention, then a) we’re are operating amidst uncertainty; and b) Nottinghamshire Police have the problem that repatriation has to be negotiated directly with Scotland and local mental health services could resist becoming involved. Use of s136 obliges them to get involved sooner and may mean the patient doesn’t end up sitting in a police station for hours whilst things are sorted out. Let’s keep our eye on the ball!
In Scotland – as in England / Wales – they have a legal mechanism known as a Compulsory Treatment Order, covered by ss63-66 of the MHA(s). Whilst it has obvious similarities to the CTOs south of the border, they are different in other respects and legally distinct entities. They allow for an application to be made to a Tribunal in Scotland, based upon medical opinions and a report from a Mental Health Officer (Scottish equivalent, roughly speaking, of an Approved Mental Health Professional) to determine whether someone should be subject to legal conditions and restrictions to ensure their mental health and wellbeing. One of the main differences in Scotland, is that it can lead to hospital admission but the Tribunal can move straight to a CTO whilst the patient remains in the community. In England / Wales the person must have been a s3 or s37 MHA inpatient first.
The question that arose somewhere in Nottinghamshire early today, is whether a Scottish CTO patient who has travelled to England can be detained by English Police and returned to Scotland? Obviously, this could mean a patient who has not been an inpatient at any stage and who could be subject to any number or variety of conditions and restrictions on their CTO, detail of which might not be available at the point of decision making. It may not be as simple as whether they have or have not ‘absconded’.
Under Scots’ law, a Mental Health Officer may apply (s63) to a Tribunal for a CTO. The Tribunal then have the power to grant a CTO or an interim CTO, with various conditions. Those may include, detention in hospital or certain conditions connected to ongoing residence in the community to ensure the wellbeing of the person. The conditions could include a residence requirement, an attendance requirement (e.g., to an outpatient clinic for treatment) or other conditions as thought necessary. Under s112(3) and s113(4) of the Scottish Act, the ‘responsible medical officer’ (RMO) for the patient can authorise them to be taken to a hospital, for treatment if the attendance requirement or any other measure is not complied with and it is thought necessary to ensure that person’s health.
APPLICATION IN ENGLAND
So if we’re all now getting really interested in this(!) we can start wondering whether the conditions are considered breached and whether the RMO has given an authorisation under s112 (if there is an attendance requirement) or s113 (if there is a breach of any other measure applied as a condition). Of course, depending on the detail of the CTO, it may be that the person isn’t breaching any of that and has simply travelled to England when there are concerns, for whatever reason, about their health. Unless the police can access the RMO or someone who can communicate information on their behalf, we can’t be certain that s112 or s113 will apply. In any event, does that authorisation extend to English police officers?!
Well, if the person has breached a residence or attendance requirement on their CTO, they may be taken in to custody by a Scottish police officer. As such, they may be taken in to custody by an English, Welsh or Northern Irish police officer under Article 8 of the 2005 Consequential Provisions Order. So it therefore depends on whether we know that a CTO condition was breached. Without being able to contact anyone, we can’t know for certain, even if we had been confident of the law! – comes back to that old thing of information sharing across mental health and criminal justice and the legal knowledge of those who are communicating with the police. Nottinghamshire Police were emphatically told that Article 8 covered the situation, but no-one could confirm that the CTO had been breached – so that information may not have been correct and there could easily have been a false detention or a deliberate decision not to detain someone who could have been safeguarded. I could have flipped a coin at this stage – instead, I spent the money on ibuprofen to help my headache.
In the end – and this, right here, is my point! – there is a lot to be said for just dealing expediently with common sense with what is right in front of you and cutting through all of the garbage, above. Whilst I’m enough of a nerd about this stuff that I had to keep reading and researching until I understood the answer, guess what?! – my instinct was the right one based on what we could confirm and that even if I’d been wrong, the action recommended as interim advice sufficed to handle the policing dimension of the call and it would allow others who are better qualified to untangle it all! We’re not mental health nurses, lawyers or psychiatrists and we don’t need to be: we’re police officers and we have particular responsibilities – prevent crime, bring offenders to justice, protect life and property and maintain the Queen’s Peace – the end. He was detained under s136 of the English Mental Health Act 1983 – and quite rightly, too. Any criticism of not using appropriate powers under Scottish law comes back to mental health services being unable to clearly communicate the precise situation they were reporting.
Here is a document from the Scottish Mental Welfare Commission – ten pages of stuff about various kinds of cross-border transfers and absconders involving Scotland and other UK jurisdictions: it just shows how silly things can get, legally speaking!
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