You may remember, I’ve been banging on for a number of years now about the problem of people being in police custody for many hours or even for many days, waiting for Mental Health Act assessment, or more usually waiting for a mental health bed in to which they can be admitted after assessment. This noise I’ve been making is now well in to its second decade, in all fairness and I’m bored of hearing myself talk about it. However, we’re starting to get somewhere in the sense that this matter has been raised with the Department of Health and the NHS at national level, who accept the premise that there is a problem. It has also been discussed with Government ministers and questions have been raised in the House of Commons. The BBC even did a news piece about it, just prior to Christmas 2017. So we may be getting somewhere, however slowly.
This post argues that custody sergeants and duty inspectors or superintendents are now much more in the driving seat of some of these issues that they’ve ever been before, because a) we actually understand this problem much more keenly; and b) the MHA amendments on 11th December have now settled a legal issue in a way which helps: section 136 of the MHA can now be used in police custody, where necessary. But first of all, a reminder from the Police and Criminal Evidence Act 1984 and a plea from me that where someone is in custody under PACE (or for any non-MHA related reason), we need to think much more carefully about the actual grounds for their detention in a police station. Remember this at all times –
- There is no power under PACE to detain someone in a police station for the purposes of a Mental Health Act assessment.
- There is no power under PACE to detain someone in a police station for the purposes of finding an inpatient bed.
So detention in custody MUST be justified under PACE itself, to allow detention to continue – and if it is no longer justified, PACE insists that the person be released.
There are broadly three situations where release must occur.
SECTIONS 34 AND 37
It’s worth re-reading these two sections of PACE in full and the bail amendments in the Policing and Crime Act 2017 have complicated things. But essentially, there are three circumstances where the detention of criminal suspects must end –
- Where there is not yet sufficient evidence to charge someone with an offence, where enquiries will need to continue but detention in police custody is not required for those enquiries to occur.
- Where an investigation has concluded, in evidential terms, but where the police and / or the CPS must consider whether charges should be brought in the public interest and it is not necessary to keep the person ins custody whilst they do so; OR
- Where an investigation is complete, there is insufficient evidence to charge anyone with an offence OR where it has been decided already that it is not in the public interest to charge someone.
Any PACE detention of someone who is mentally unwell can reach any of these points because even serious mental illness does not preclude investigation or prosecution; and the fact someone is considered or known to be mentally unwell doesn’t alter the imperatives in PACE to release someone from detention under criminal law – the person must still be released, either with or without bail if still under investigation (bullet point 1); pending a decision about whether to charge them with an offence (bullet point 2) or released with a written notice of no further action, if that was the decision reached (bullet point 3).
Now, this is absolutely crucial to understand why the preceding points make any kind of sense: if release then gives rise to issues of safety because of mental health issues, that is an entirely distinct legal issue, which cannot be addressed by prolonging detention in custody unlawfully under the PACE.
This is where the Mental Health Act needs to take over, in some way, shape or form.
MENTAL HEALTH ACT DETENTION
It would depend what stage we have reached of assessing someone’s health as to how the MHA might take over from PACE, once the person has been released. Firstly, nothing prevents MHA processes beginning whilst someone is detained, as long as that detention is justifiable on its own terms under PACE. Is the person’s detention in police custody without charge necessary in order to secure and preserve evidence or obtain evidence by questioning, as per s37 PACE? If so, because officers are still taking statements, securing CCTV or forensic evidence, etc., then nothing prevents the convening of a Mental Health Act assessment. And if the assessment occurs and admissions is indicated, the person can be ‘sectioned’ from police custody without any significant problem about the legal basis for detention.
But should the custody officer reach those pinch-points where evidential assessments occur about the ‘necessity’ of detention, the person must be released and PACE replaced by something else, if there are concerns about a vulnerable person’s safety and immediate wellbeing. So, if the FME has ordered an MHA assessment and a pinch-point is reached, nothing prevents the release of the person from police detention and their removal to a Place of Safety under s136 as long as it was genuinely felt that the criteria in s136 were satisfied.
- A person suffering from a mental disorder
- Immediate need of care or control
- In their own interests or for the protection of others
- Necessary, in the opinion of the detaining officer.
I am arguing, after listening to other views on this, s136 may be used at any stage after a MHA is called for; and indeed, it could be applied where someone remains under arrest because it is perfectly conceivable someone accused of an offence for which they must remain under arrest is “a person suffering from a mental disorder who is in immediate need of care in their own interests” and that removal of that person from a police custodial setting is considered preferable. I can’t be the only police officer in the country who has known Doctors to say, “This person being in here is doing them no favours at all and you need to get them out as soon as possible, because it’s traumatising.” You should also bear in mind the argument from the MS v UK (2012) human rights case: it can be inhumane and degrading to unnecessarily protract detention in police custody.
THE COUNTER ARGUMENTS
Now, as discussions have occurred about these points over recent months, there are always very quick objections! Let me try to despatch them one at at time.
- You can’t use s136 if a MHA assessment for someone in custody has already occurred and the outcome is known:The argument goes that the purpose of s136 is to arrange an assessment by an AMHP and DR and that’s already occurred, so it’s not possible to use the power.
- There are several things to point out why this doesn’t fly and I’ve written on this previously – my punchline was, the grounds for using s136 MHA are only those contained in sub-section (1), subject to the new sub-section 1A.
- The other major point is: nothing in the law prevents a second, further assessment! … stupid though that may sound, there are many instances where admission to hospital does involve more than one.
- Furthermore, there are other types of situation where an AMHP and DR would not do a full assessment after use of s136, regardless of what is said in s136(2) about the purpose of s136.
- Discovery after the use of s136 that a patient is already AWOL under the Act and simply needs returning to hospital under s18 MHA would be one; a patient who is subject to a Community Treatment Order, etc..
- You can’t use s136 in custody because the person is safe there and not in immediate need of ‘care or control’.
- It may be true that someone is not in immediate need of control whilst detained under PACE, because being under arrest by the police means you are ‘controlled’.
- However, it is perfectly possible that someone is in immediate need of care, whether or not they remain in police custody – and if this all arises as PACE is ordering someone’s release, control is also lost, should it be considered necessary.
- As outlined above, I’m putting the argument here that we previously held people in custody because of custom and practice when PACE didn’t allow for it, strictly speaking.
- As I acknowledged, above, if PACE grounds for detention exist, MHA assessments can still occur in custody whilst someone is under arrest – this post is only suggesting that such grounds didn’t always exist in the past, if we’re really honest with ourselves and we should start refreshing our approach.
- Finally, there was always uncertainty about using s136 prior to last year’s amendments, because questions would arise about whether someone was ‘found’ in ‘a place to which the public have access’. That’s now just a relic of legal history and no longer relevant at all.
In thinking through these issues and whilst discussing them with AMHPs, solicitors and other police officers and mental health professionals, I’ve re-imagined myself in the position of being the custody sergeant or the duty inspector in an operational role.
What would I do when discharging legal responsibilities now the law has changed?
BENEFITS TO CONSIDER
I would be using the new opportunity to get those of us who live with potentially serious mental health problems out of police custody wherever I thought they did not need to remain there for criminal investigation purposes. I would familiarise myself with section 34 and 37 of PACE and combine the new 2017 bail provisions with the new 2017 MHA provisions, in order to ensure this could always occur safely.
The final point to make here is that this is happening in police forces already and on Thursday I did a short input to a senior meeting in Lancashire Police arguing that this new approach has various benefits which include anticipating the situation where someone in police custody has been assessed as requiring admission to hospital under the MHA but is languishing in the cells pending a bed being found. Of course, it means they may be languishing instead a Place of Safety under the Mental Health Act but that in itself has benefits. They may well be more proximate to NHS staff and I would history shows, in my experience, the NHS will be more keen to resolve an unlawful detention in their own building than one in police custody, especially if the police are not actively objecting to the legalities.
Of course, such an approach may also mean that use of s136 rises, potentially sharply in areas where a lot of criminal suspects are assessed under the MHA. It may mean that NHS areas who were struggling, comparatively, have increased pressure upon them for access to a Place of Safety. That may mean, if NHS mental health trusts can’t match that demand, there is consequential pressure on A&E departments and on police officers having to remain in A&E or elsewhere whilst places of safety are found and assessments improvised. Difficult though we all know that is, it has one over-riding attraction that everyone – in the police and the NHS need to focus on: at least it means things are handled legally! We all have a positive, not a reactive, duty to ensure the Convention Rights of those who are detained in these circumstances, including Articles 3 and 5, amongst the others that could become relevant … and at least, if things go awry with someone’s health, as they all too unexpectedly can, the person is in some kind of healthcare setting where they may stand a better chance of rapid care, when compared to being held by the police in a small concrete room.
As I’ve said many times before: I didn’t write this stuff! – I’m just trying to explain it.
Winner of the Mind Digital Media Award.