I said about eighteen months ago, that once the Mental Health Act was amended to unambiguously allow the use of s136 of the Act in any place that was not someone’s home, we’d see police officers considering its application in police custody areas, for a range of reasons. This post is mainly for police officers and mental health professionals working in or around police custody during criminal investigation. If others want to understand some of the legal issues within the post, see some of the other resources on the BLOG to understand the Police and Criminal Evidence Act 1984 (PACE) or the amendments to the Mental Health Act 1983.
This post is about when, if ever, a criminal suspect should be released from detention whilst under investigation, in order to be diverted to the mental health system. There are two scenarios I have in mind, broadly speaking –
- A way of safeguarding someone who suddenly and unexpectedly indicates an intention to end their life just as they are being released from custody as part of an ongoing investigation.
- It could be used where PACE grounds to hold someone have expired (see s34 and s37) but where there is an ongoing need for some form of MHA process – either an MHA assessment by an AMHP and DR; or where someone is awaiting admission.
There are a few version of this second idea, varying by way of timing – at which point should a decision be taken to suspend PACE and implement s136, but for the ease of initial explanation, let’s just take the broad idea.
For what it’s worth, I think there is merit in giving the consideration to these things, because they do have the potential to offer a form of solution to certain historic problems, even if it is a short-term solution. But that’s not what this post is actually about! – this is about the problems opened up, especially where officers are too quick to push for this; and especially where the grounds for doing so are actually not met.
The majority of people who are taken to police custody who are then identified (on whatever basis) as having some kind of mental health condition are not then assessed under the MHA for potential admission to hospital. So first things, first: the fact that someone is thought to have some kind of mental health condition should not mean we suddenly start issuing urgent bail from custody, suspending criminal investigations and shouting for a Place of Safety. Apart from anything else: the grounds for using s136 in these circumstances would usually not be met; and for most people, it would be a complete waste of time anyway: they’d soon be discharged with little more than a letter to the GP.
The number of people assessed under s136 who are then identified as requiring specialist mental health services (which would include any admission to hospital), is a usually less than half. Most people assessed under the MHA are not admitted to hospital and any mental health care they require can be organised by Liaison and Diversion Services (LaDS) in custody – 85% of the population of England is covered by a LaDS. So for those who are arrested and taken to police custody and may be lawfully detained there under PACE, a good LaDS can ensure the healthcare needs of people under arrest are met unless the person needs to be ‘sectioned’, in which case they would need to call upon an AMHP and Doctors to undertake the statutory MHA assessment,
There is also a practical reality here: if the police start shouting for s136 for any arrest where the suspect says they have depression, the Place of Safety system will soon grind to a halt, because in some areas it isn’t exactly free-flowing to start with! Areas usually have a finite capacity in their PoS system and police forces do need to be aware that the history of s136 is a perception by many that the power is over-used already, this could potentially make that even worse. Section 136 isn’t about getting complicated suspects out of custody, not least because that suspect may indeed be criminally responsible for the offence they are alleged to have committed and natural justice may demand there still be the kind of CJ disposal that anyone else would receive for similar conduct.
THE DECISION TO 136
First obvious point: if you are going to even think about an approach that means someone is released from police custody and detained under s136, you need to ensure a couple of fairly obvious things.
- Are there ongoing grounds under PACE to keep the person detained? – where PACE grounds continue to exist, nothing prevents an FME assessment, a LaDS assessment or even a statutory MHA assessment occurring in police custody, as it always has. So if we are still securing and preserving evidence and / or seeking to obtain evidence by questioning and where we have not yet reached a view about whether immediate prosecution will be required, why would we think of ending detention unless someone’s health was so bad that they were unfit for detention in custody? Nothing prevents the two processes running alongside.
- Are the grounds for use of s136 actually satisfied?! – this should be beyond obvious and barely in need of being stated, shouldn’t it?! But does that person appear to a constable to be suffering from mental disorder and to be in immediate need of care or control, in their best interests or for the protection of others? If the actual grounds for detention under s136 are not met, then this whole debate is a non-starter. If the kind of care that someone needs is available in custody whilst someone remains lawfully under arrest, what’s the point?
Putting the these things together, you will usually need a collision of the two circumstances: a genuine difficulty in further justifying detention under PACE; along with a healthcare situation believed to be sufficiently serious in its own right to justify the use of s136. The exception to this, of course, is where someone is so ill, it is a medical emergency, they are unfit for detention in police custody and need to be urgently transferred to A&E.
Otherwise, absent one or both of these factors: we shouldn’t, by law, be thinking of it. And what useful purpose would it serve, even if it were lawful?!
There is no easy dividing line between mental health and crime: not because they are the same thing, obviously not. But because the boundaries each are not easy to define and some behaviours at the edge of each are overlapping: simultaneously demonstrative of a serious mental health condition and a contravention of a country’s criminal code. Public policy tends to suggest we should approach the overlaps and in the UK this is by arguing that we should only criminalise people for more serious offences or where broader public safety is at stake.
So the police have an important role to ensure balance in the application of public policy:
- We don’t want the police to fail to bring to justice those who have offended where a mild or moderate mental health condition has in no significant way affected their liability for their conduct.
- We don’t want the police to criminalise seriously unwell and other vulnerable people for minor crimes that were situationally related to their condition and the context of an incident.
- We do want the police to protect the public from those who pose a much more significant risk to the public in order to allow the criminal courts to make thorough assessment of how we balance that patient’s right to treatment with legal frameworks to ensure public protection.
Does it get more interesting or more complicated than this in ANY area of public policy?! << I have to admit, I don’t think it does. As Professor Jill Peay says, professionals operating at the interface of mental health and criminal justice are undertaking some of the most complicated work of any individuals in those professions. But this also means is vitally important stuff: these decisions can be the sorts of things, in extremis, that contribute to suicide and homicide, so they should always focus the mind carefully and be subject to sober judgement.
We need to think REALLY carefully about the potential for us to take premature decisions: if we’re shutting someone out of immediate access to the mental health system because they are alleged to have offended, is that a proportionate response to the alleged offence and how detrimental may this be to their health? If we’re shutting someone of the criminal justice system because they have a mental health condition, is it one which is sufficiently serious to require urgent assessment ahead of any other consideration about an offence they may have committed and this risk this poses?
All cases on their individual merits.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2019
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – http://www.legislation.gov.uk