It’s been the fashion for a few years to suggest we need to reduce the amount of times the police service uses s136 MHA. No-one quite understands who made the unilateral decision that it was over-used and we know already that attempts to focus upon its reductions have been problematic. Once upon a time, I remember having a discussion with a senior officer (at their request) about street triage and having questioned the basis for suggestions that we should reduce use of this power was told that “section 136 is over-used and that’s just a fact!” Err … OK. The President of the Supreme Court seems to disagree with you, but fair enough. Baroness Hale has for many years produced an academic legal text on mental health law, currently in its sixth edition and for at least the last two editions has made the observation that s136 is potentially both under-used and over-used because in many situations where officers are contemplating the use of this power or detention, they would almost always have other legal options of arrest available to them as well.
The argument that section 136 is over-used tends to be based on the opinion of mental health professionals reviewing incidents to which the police were called and offering an opinion on whether they agreed with the need for the use of the power. Your alarm bells should be ringing already because a) they weren’t there; b) mental health professionals have knowledge and skills which are different to those of police officers, so will have different kinds of perceptions and bias at play, regarding necessity; c) we know from academic work and from professional discussion that the reasons given as to why s136 may not have been appropriate are not universally agreed, even amongst mental health professionals; and d) we know that mental health professionals are not always right! I certainly have no time to waste over-discussing the ‘conversation rate’ hypothesis – this is the idea that you judge the validity of section 136 use by whether or not it was ‘converted’ to hospital admission. I equally have no truck with the view that mental health professionals are the best judge or even the sole judge of whether an officer was ‘right’.
But even if those ways of looking at it were effective ways of assessing the use of the power, they still only tell you about situations where the power was, in fact, used. They tell you absolutely nothing at all about situations where the power was not used, but could have been – did the police get those situations ‘right’ by rejecting its use and going a different way? For example, if the officers attend a situation where someone is openly possessing a knife in a public place whilst seriously mentally ill, is it ‘right’ to arrest for the knife, or detain because of the concerns for that person’s mental health? In just one sentence, it’s impossible to convey specifics to help decide: one version of that may involved someone raising the knife to chest height, pointing it forwards whilst in the vicinity of a densely populated location; another may involved someone walking across Pen-y-Fan at 4am. Perhaps that context matters, but either way: what factors make the decision ‘right’ and have we reviewed all criminal arrests looking for situations where s136 was a lawful option but was not chosen and worked out which of those were ‘appropriate non-use’ of s136?
SO FAR, SO GOOD
Normally, in discussion of these matters, you get to this point about arrests and there is a realisation: “Ah, yes – this actually is about more than assessment of s136 use … of course, we’d need to look at false positive use and false negative use of legal powers.” But that’s not it either, at least not entirely – you also need to look at something even harder still (and emphasising this will also allow me to focus upon the decisions that may make it ‘right’): use of no legal powers at all. We know police officers sometimes deal with mental health related calls by suggesting a voluntary referral or pathway to a mental health or NHS service which the person then undertakes without the use of any legal powers whatsoever – I’ll call this voluntary attendance. It is absolutely FRAUGHT with difficulties and officers need to be very cautious when choosing it; but the choice is a valid one in appropriate circumstances. Thus begging the question, “when is voluntary attendance appropriate?” I’ll come back to that shortly, but I just need to bottom out why we must understand how this works, in order to understand whether s136 is being used ‘appropriately’ overall.
Where an officer attends a mental health situation, for example in someone’s private home where most crisis and sub-crisis calls are for officers, there is no legal authority to use s136, at all. Imagine such a situation where officers have concerns for someone who may be seeking help and where there is no (attempted) criminal offence involved – how do you ensure appropriate referral for someone who wants to seek help and where legal powers are not necessary or possible? Remember: the Mental Health Act’s (and Mental Capacity Act’s!) Code of Practice requires decisions taken by others to be done in the ‘least restrictive’ way possible – known as the least restrictive principle. If there is no legal or practical reason to do something MORE restrictive, then you shouldn’t do that thing or not do your thing in that particular way. This is an important aspect of ensuring autonomy, dignity and the minimisation of distress, where this is still consistent with human rights and health & safety.
Many cities and some towns now have available ‘walk-in’ services: most obviously, there are Emergency Departments, everywhere, for example. Much more recently, we’ve seen an increase in the number of mental health-specific services like crisis cafes and sanctuaries run by third sector organisations; as well as NHS walk-in centres. Not all of them are available 24/7, so it’s important forces make clear to their officers or control rooms what the options are; but this means we need to know when, how and why to choose those options, set against the statutory options of using s136, calling for AMHP-led interventions like s135(1) or MHA assessments, or making arrests under criminal / common law. Getting this wrong can have far-reaching consequences – it’s a near-miss type incident that prompts this BLOG post, so I’m not scaremongering here or being hypothetical: a doctor emailed me to ask whether or not officers got something ‘wrong’ and in the circumstances as presented by them, I have to admit I had a long list of questions!
LEAST RESTRICTIVE PRACTICE
So, you’re the officer (or paramedic!) at the mental health sub-crisis incident where someone is either asking for MH support OR they are open to the idea of going somewhere to get it when there seems little other available option. For now, don’t worry too much about whether this is in a place where s136 could be used or not – you have a person who appears to be exhibiting signs of distress arising from their mental health and they’re open to being conveyed somewhere for help. You need to have regard to the following things, in my view –
- Is this is a truly free choice they’re exercising? – if you’ve had to suggest that without agreement to be conveyed you may have to use the law to force the situation, then the person is not exercising a free choice. The Mental Capacity Act 2005 makes it clear (s6 MCA) that ‘restraint’ is not only the use of force but the threatened (and I would add implied) use of force. You need to be assessed and if you don’t agree, we’ll have to think about other options is an implied threat that compulsion will follow if agreement is not secured.
- Does the person have capacity to consent? – it’s also crucially important. There is a difference between consent and agreement, in law. Professionals suggesting something is required may be met with agreement because the person has previous experience that a failure to agree leads to compulsion. Think about someone dropping litter – off-duty I may ask you to pick that up and some may be inclined to ignore me or offer abuse. Perceived consequences of refusal are low. Imagine I’m on duty in uniform or following a refusal, I explain that I’m a off-duty police officer: without saying more, this now means something else because implied consequences are higher.
- What will you do when you get there? – if a person has exercised a truly free choice, with capacity to make that choice, to attend a safe environment for some support, will you be feeling the need to stay there with them throughout? If so, why? – if not, why is it OK to leave that person with the professionals or support volunteers in that location? If you fear a flight risk after you leave, in what sense is this really someone seeking help; if the risk is due to long delays in an ED, for example, what may be done to mitigate that – whether by police / paramedics OR by ED?
There will be other questions and considerations depending on the service, the person and the officers involved, but if you are minded to remain at that voluntary location because you would be keen to instigate some form of legal detention in the event the person chose to leave before it was considered safe, then you are edging in to de facto detention territory.
DE FACTO DETENTION
Those who have read this BLOG for a number of years will know I’ve focussed a lot on my concern around this. De facto detention is a term used (including by the Care Quality Commission) to describe a situation where a person is, in fact, detained without being detained in law. Imagine being told by an officer that unless you agree to attend ED, you will be detained under s136 or arrested and once you’re at ED the officers remain there with you because they are not comfortable in leaving fully autonomous choices about remaining or leaving to the individual concerned? That person is detained, aren’t they?! You only attended because of implied or actual threats of detention and cannot leave again despite being ‘at liberty’ because if you try, the officer will detain you. Detained in fact, but not in law – de facto detention.
How voluntary is this?! Yes, the person may have agreed on some level to attend, but a) the context of the agreement meant it wasn’t a truly free choice; and b) they’re ongoing agreement is contextualised by the implied threat of detention. So who wouldn’t agree?! Actually: I wouldn’t agree and I’d force a situation to occur where I was either fully granted my liberty to choose; OR detained so that I get some legal rights, including to a solicitor! By refusing to attend or refusing to remain without being detained, any individual in de facto detention is suddenly available of legal rights. The right to legal advice (whether arrested or detained s136); and the right to have more senior professionals (police inspectors or AMHPs) overseeing legal process to ensure my rights; and, perhaps just as importantly, to timescales of maximum detention. De facto detention could go on for days and days and what can the individual do about it? – if they are under arrest OR detained under s136, the law demands that whole thing be sorted out in 24hrs or less.
This is why voluntary attendance needs to be very carefully considered, indeed – unless it is done carefully, considerately and compassionately, it strips people of their legal rights; it tips power towards professionals when it should be tipped as far as possible towards people; and it means the agencies surrounding that person at a time of crisis are not putting the person at the front of decision-making.
And so if you really must argue about what is appropriate or inappropriate use of s136, you need to understand how voluntary attendance is working where officers (or paramedics) convey after contact to locations without formal use of legal powers. How many voluntary attendances are truly voluntary and not involving de facto detention? I’ll save you some time and trouble: we have absolutely NO idea – but we do know that the answer to this question is not, “All of them.” We hear from ED staff and other sources of officers bringing individuals to hospital in handcuffs and then arguing it is ‘voluntary’; we also hear of inadequate handover procedures where police ‘dump and run’, leaving vulnerable people with ED staff having not really referred them on a voluntary basis but then leaving this non-voluntary situation to NHS staff or security to handle.
This sort of thing is improving, in my view – but ‘m highlighting it because of an incident I’m not going to go in to detail about on here and because another force are looking at this. The Metropolitan Police have also introduced a voluntary referral form in London for such situations, precisely to ensure that after officers do leave vulnerable people in the care of NHS staff that it’s because of considered risk assessment of things like flight risk and further harm. A more careful process of consideration has significantly reduced the number of high risk missing patients who are reported by the NHS as having absonded shortly after arrival or whilst waiting assessment. Regardless of the noble instincts of operational cops to minimise police time spent sitting with people in ED, your duty inspector is probably not going to thank you for a high-risk missing person investigation consuming two, five or ten times the resources that it would have taken to ensure a proper assessment of what was the least restrictive approach consistent with safety; and a detailed, professional handover discussion with NHS staff on arrival.
So back to s136. Imagine an area using this power 1,000 times year, where the lead MH nurse thought 100 of them (10%) were ‘unnecessary’ leading to “section 136 is overused!!” type stuff. What if the police are also arresting 75,000 people a year, 10% of whom (7,500) are thought to have mental health problems sufficiently serious to require MHA assessment. If even 10% of those were vulnerable people arrested in places where s136 was possible (this number is almost certainly way too low – and that’s why I’ve chosen it!), that’s 750 people not detained under s136 who probably could have been. Most people are not arrested for indictable only offences so these numbers will probably be for middle to lower-order offences. You can easily see how the number you reach if you properly analysed this would be larger than 100. And then, finally, you need to understand your ‘voluntary’ attendances AND your situations where officers don’t convey at all and then leave. How many of those were ‘right’? – again, we know the answer is “Not all them!” because of systematic pressures at play.
Section 136 is over-used AND under-used! – and the balance of this varies by area; but on balance, nationally – I’ve always feared it is significantly under-used overall because we’ve built a system intent on criminalising people, not caring for them. To repeat a mantra I started using last year, “policing is not the problem here: over-reliance upon the criminal justice system is the problem.”
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions 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