This blog is part of the series which will cover, in detail, the amendments to the Mental Health Act 1983 within the Policing and Crime Act 2017.
For background to the series, see the introductory post which outlines why I’m doing this and what other specific issues will be covered concerning laws that will come in to effect in the next few months. Current Home Office estimations of timescales suggest late November / early December – but this is subject to a number of factors and may change.
One specific amendment to the Mental Health Act 1983 which will be with us shortly: it will no longer be lawful to hold children in police stations as a Place of Safety under the Act – ever! The legal amendment in s81 PaCA on this is a simple one: the MHA will read, “A child may not, in the exercise of a power to which this section applies, be removed to, kept at or taken to a place of safety that is a police station.” (Section 136A MHA, as it will be amended.)
Here are two particular points on this amendment –
- A child is anyone under the age of 18yrs – someone who is 17yrs and 364 days old is a child – see section 136A(5)(a) MHA.
- The size, strength and presentation of the child are completely irrelevant – if they are under 18yrs of age it means they must be removed to a non-police station location.
- End of debate! – at least as far as age is concerned.
- The amendment is a ban on the use of police stations – any child detained under ss135/6 cannot be accommodated in any part of a police station. It’s not just a ban on the use of police custody.
- Therefore, front office interview rooms, the more comfortable interview rooms sometimes used for vulnerable or serious crime victims … all of them will be out-of-bounds for children where they form a part of a police station.
There are few issues arising from all of this, some of which I hadn’t expected to see, quite honestly. Others were fairly predictable —
Resistance and aggression – it doesn’t matter if your 17yr old is “a 2m tall rugby player” who is really resisting detention for whatever reason. The person simply cannot be lawfully detained in a police station if the officers have only detained them under s135/6 of the Mental Health Act. It therefore means, all CCGs and LHBs need to think about their Place of Safety provision and ensure it matches up to the Royal College of Psychiatry Standards on s136 MHA (2011). This document makes it quite clear (p8) that PoS provision should be able to handle those of us who are detained for assessment and exhibiting challenging behaviour. Although it’s not true of most people detained under these provisions, the management of resistance and aggression is a quite predictable part of the s136 pathway for just some people. Infrastructure in future will need to cater for that. Local policy may dictate whether or when the police may have to remain in the PoS to support that assessment process, although p8 says it shouldn’t normally be required.
Arrest for crime – something that did surprise me in social media discussion about these changes, was the idea that officers should therefore consider arrests for other legal reasons where significant resistance or aggression is encountered. As Baroness Hale observed in her 2010 textbook on mental health law, it is usually possible to consider another legal basis for intervening, such as public order law or preventing a breach of the peace. But I keep coming back to this: the whole point of s136 is about offering the ability to intervene without resort to criminal law where the main concern within an incident is someone’s welfare and wellbeing – and in this context we’re talking about children, where diversion from the criminal justice system is even more of a bedrock principle. How is it going to help by detaining them in police cells whilst in distress and implying they are a criminal by a spurious arrest for a public order offence?! Indeed the whole point of the PaCA amendments is to reduce reliance upon police custody and avoid criminalising young, vulnerable people. Suggestions by some (who should know better) that the police get ’round this by using other laws are highly disingenuous and a clear affront to the will of Parliament. << I’m trying not to sit on the fence so I hope I made myself clear on that one!
Commissioning – prior to Christmas, a Chief Constable sought some advice after officers had detained a child and removed them to an Emergency Department under s136. This was mainly because their local NHS PoS did not and would not accept anyone under the age of 18. Preferring the idea of ED to police custody and backed by the Code of Practice to the MHA which clearly states (para 16.38) that police stations are the last resort after other options are considered, the officers asked ED to support the child. A discussion broke out which led to escalations and emails flying back and forth. Not withstanding those historical arguments documented elsewhere on the BLOG, the point is this: the argument, that the child should be taken to custody, is an argument that will be calling for unlawful action, once the amendment takes effect. So CCGs and LHBs need to be looking from a commissioning point of view what will be necessary.
There you go! – that should be enough to get thinking about on PoS provision for children. CCGs and MH Trusts need a clearly identified PoS for u18s, whether or not that is the same place as they will take adults (bearing in mind, most areas only need provision for one or two s136 detainees at a time – there is scope to think about how to use existing PoS facilities for u18s without those children coming in to contact with anyone other than the vetted professionals supporting them whilst detained, and possibly their parents or guardians.). The obvious warning to sound here, is to wonder what police officers would do if there is no available pathway for a child, or that pathway is temporarily unavailable? If the arresting officer cannot access the identified place and cannot lawfully use a police station, they will be forced to improvise. In reality, EDs are going to be high on the list of places to try and they are far from ideal. So EDs need to think about this and get in on their local commissioners’ conversations about this.
We need to think about this amendment and ensure we grasp its implications in each of areas – because this one is black and white. It will become unlawful to use police stations.
The next post in the series will focus on new powers of search under s135/6.
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