Your Mental Welfare Commission has recently published a snapshot report about Police Scotland’s use of ‘place of safety orders’ under the Mental Health (Treatment and Care) Act (Scotland) 2003 – the MHA(S), if you prefer. Section 297 MHA(S) is the equivalent power to section 136 of the Mental Health Act 1983, the MHA(EW), if we’re being consistent. The report is just a three-month snap shot but it raises several questions which the Commission themselves are openly asking. It is precisely because they have made a direct comparison and reference to the use of Place of Safety orders under English and Welsh law that I thought a short blog may be helpful, flagging some learning we’ve gone through in England, but also contrasting certain parts of England to help think through how culture and evolved practice affect the police’s use of powers.
It’s worth reading the report – it’s only 13 pages long and that includes the cover and a blank page as well as plenty of tables and white space!
Unlike English and Welsh forces, Police Scotland has a statutory responsibility to inform the Mental Welfare Commission of any occasion these powers are used. Notwithstanding that requirement, over the last five or so years, it seems likely that reports haven’t always been made accurately – either that, or there has been a very steep and highly unusual rise in the use of the orders. The report tells us that s297 was used on 130 occasions in 2006/7 – but that rose to 795 occasions in 2015/16. The Commission themselves put some of that rise down to better recording and reporting which is fair enough: we know recording quality improved south of the border, too. In the snapshot report over a three-month period, the number was 295, which might imply a further rise – something to keep an eye on.
That said, what struck me most about Scottish figures when I happened to look them up a few months ago, was how LOW those figures are. Let me explain why this was my instinct:
Scotland is a country of over 5 million people – and let’s round things off by saying they use this power 800 or even 900 times a year. Contrast this with Northumbria Police or with Leicestershire Police – they are areas with around 1 to 1.5 million people and yet each of those forces was using section 136 MHA(EW) before either of them introduced a street triage scheme. That’s a significant variation when you remember that Glasgow itself is a larger city than either Newcastle or Leicester and – so is Edinburgh! This is very low by crude comparison, so what’s going on.
REGIONS OF ENGLAND
Use of s136 in England, however is not consistent and it’s obvious there are local variations not easily explained by differing need amongst populations. Prior to street triage, for example, West Midlands Police and Nottinghamshire Police used s136 roughly the same amount. This is interesting because one force is three times the size of the other, based on officer numbers and resident population. So is one force over-using s136 and the other under-using it?! It’s probably a bit of both, but there are certainly differences here that need unpicking. After these forces introduced street triage, Nottinghamshire’s use fell to around 500 from 1100, whereas the West Midlands initiate reduced by approximately 250 and gradually returned to normal levels. This attests to something about the appropriateness of usage that probably needs some more unpicking – what does it tell us about s136 that in some areas street triage reduces s136 significantly and that sustained; elsewhere it has a temporary affect on usage and regresses to the mean; in other areas, like Lancashire, it has no effect on the usage and the rate continued to climb, unaffected.
Try comparing Nottinghamshire to Humberside – these forces are not identical in terms of size but are similar in terms of officer numbers and population … and yet one is using the power ten times more than the other. These places are different! … but are they really that different?! I sincerely doubt it; and so it immediately begs questions about how individual police officers take their decisions around mental health calls and the extent to which evolved cultures and practices in given police force areas affect those decisions. We’ve had to get in to some detail about this England because discussions about the provision of health-based Places of Safety often do demand that we address the question of whether s136 MHA(EW) is being over-used? Remember, when street triage was introduced in England, it first appeared in Cleveland and was a direct response by the local trust to what they considered to be ‘inappropriate 136’ (see a screenshot of their website, left). Elsewhere, during discussions about ‘inappropriate 136’, it turned out this was a perverse assessment by health professionals about what ‘appropriate’ actually means. Some psychiatrists have been known to say that unless someone is ‘sectioned’ after the assessment, then the use of the power was wrong!
But it’s not enough to look at s136 usage and think about whether it is over-used or under-used – in all areas, it will be simultaneously involve both of those things – and more besides. What about encounters where officers arrest for a criminal offence or a Breach of the Peace, which centre on someone who is suspected to in mental distress and where mental health law might have been the better option. What about encounters which don’t end in the use of any kind of detention but which arguably should have done. It is a common complaint, I’m afraid, that A&E staff see the police turning up in their departments with vulnerable people who are under a form of restraint, sometimes in handcuffs and the officers then attempt to explain that the person is there on a voluntary basis. An AMHP recently queried the number of people detained under s136 who turn up in Places of Safety in pyjamas, wondering how many were in fact, encountered in their own homes which are off limits for s297 / s136.
GETTING IN TO DETAIL
So the things you’re probably going to need to look at are numerous –
- How many uses of s297 MHA(S) are objectively wrong – for example, people removed from private premises under some subterfuge or other, only to be detained under s297 once outside. There is caselaw on various versions of this in England and Wales and all of those practices were regarded as unlawful.
- How many people detained under s297 were, in reality, just drunk and doing ‘odd’ things or verbalising non-specific threats of some kind? – without some objective evidence of any background of mental illness, behaviour by drunk people is usually best explained by alcohol. So safeguard them in whichever other way and once sobriety returns, they can still be assessed, where concerns permit.
- How many people arrested for a Breach of the Peace in Scotland are people in distress encountered in a public place where s297 probably was the way it should have gone? – some people refer to this as a ‘proxy’ arrest. Of course, in private premises where s297 does not app[ly, this may be needed and justified. But in public, this might need looking at.
- How many people arrested for a substantive crime, like assault or criminal damage and thought to be mentally ill? – this one is a touch tricky because public policy tends to demand that people who are seriously mentally ill and diverted from the justice system and s297 is a way of doing this at first contact if the crime is minor. But how serious do we allow the crime to get before we should prioritise the arrest?
It’s complicated stuff: my only point is, there are things that England and Wales have discussed and learned from, which suggest at least some answers and ideas for the questions posed in the Mental Welfare Commission’s report. And if you use social media, especially Twitter, you will see the most important answers of all: the Scottish public have their experiences of police contact when they are unwell and several have said they’ve found themselves in police cells for a Breach of the Peace after a mental health crisis in public. Sometimes, they have been told by officers involved that it’s easier and less time-consuming to deal this way, which raises important questions about the s297 process, if that’s true.
What does seem possible, is that there is scope to look at whether or not mentally vulnerable people are being criminalised unnecessarily and whether there is scope to issue guidelines or training that would re-dress any problems you may uncover.
We hope this helps!
England and Wales.
Winner of the Mind Digital Media Award.