It’s that time of year: new data released for the police use of section 136 of the Mental Health Act 1983, available in a Home Officer bulletin reporting of wider use of various police powers. It gives use various express clues, if you read the thing closely, that there is increasing pressure on the system, ongoing confusion about the ‘new’ legislation from two years ago and difficulties which could still yet manifest itself in untoward events gone awry, which would seem unjustifiable given the lessons we’ve previously learned the hard way from other incidents over the last 20years.
The headlines are –
- Use of s136 MHA is still rising year on year: it’s up 12% since last year to 33,238 – remember that in 2007 when the IPCC did its seminal report on the use of this power, they found 18,500 uses in a year.
- If it rises again next year as it did this, for example, the use of this power will have doubled in 13yrs.
- 81% of people detained were removed to a healthcare setting that was NOT an Emergency Department – last year 85% people avoided ED, so we need to know why this figure is falling?
- I must assume (because I see it) that as use of the power is rising, capacity to handle it is not, hence greater over-spill to ED – I saw an example of this last weekend.
- Use of custody has fallen which is great news – I had hoped we’d be down to double figures for those of us being taken to custody, but we’re still just above that at (ironically enough) 136 people detained in police custody under s136 MHA.
- However, this hides certain questions or potential problems:
- The Home Office data shows us that 62% of those detained in custody were ‘detained for a substantive offence’ – see below, because we need to know more about this.
- Compliance with statutory Regulations to justify use of custody was identified in just 16% of cases – as the Mental Health Act (Place of Safety) Regulations 2017 are issued under the authority of the MHA itself, they are the law. We should be compliant with it 100% of the time or just worrying about the odd case here or there.
- On occasions were police vehicles were used to convey someone, the officers had not requested an ambulance on 22% of those occasions – officers should ALWAYS ask, the reasons are explained elsewhere on this blog and should be obvious and uncontentious by now.
- Ambulance services were unable to provide a timely response to detentions on 40% of occasions where police vehicles were used – this figure varies by ambulance trust area (although the specifics are not published in this bulletin) so each area will need to examine this for itself.
- Fairly alarmingly, a police station was used as a Place of Safety for a child on four occasions. In the scheme of 33,238 detentions, this is a thankful low number, but the point is that detention in children (under 18yrs) is unlawful. It should be a NEVER EVENT, to use NHS language.
- 55% of those detained were men, 96% were adults.
- 85% were white, 7% black, 5% Asian and 3% describes as ‘Chinese or other’.
- Some data is missing around location used, conveyance, gender, race – so still work to do to improve the data.
We need to understand more what this 62% of people ‘detained for substantive offences’ means. Where someone is arrested for an alleged offence and removed to custody, their arrest / detention will not form part of these statistics. Only where s136 is invoked will it be included. There could be two scenarios that I’m thinking of –
- Someone is arrested for an offence AND detained at the same time under s136 MHA – it does happen, albeit I’ve always argued officers should make a decision one way or the other. So it could mean double detention, although I doubt it.
- Where someone is arrested for an alleged offence and then released from detention under the Police and Criminal Evidence Act 1984, they may be detained on release under s136, if ongoing Mental Health Act processes are required for assessment or admission.
I’m wondering whether most of these 62% of cases (which is 84 people overall) involve people arrested for offences, released from PACE and then detained under s136 MHA and kept in custody. If I’m right about this, we need to issue further reminders about the law because once use of s136 MHA is made, the law requires the person be “removed to or kept at” a Place of Safety and the Regulations set out the circumstances in which this can be a police station. It involves a situation where there is “an imminent risk of serious injury or death … where no Place of Safety in the force area can manage the risk … and where authorised by an inspector or above”.
So there should be no presumption after use of s136 in custody, that the person can stay there, just because they may have been there for several hours whilst under arrested and detained under PACE. The person should still be removed unless those criteria are met, including the inspector’s authority.
It should be borne in mind that this publication comes on the same day the Independent Office for Police Conduct announces their decision to drop directed misconduct hearings for officers involved in the death of Thomas Orchard in Exeter in 2012. Thomas was detained originally under the Public Order Act but debate occurred afterwards about whether he should have been detained under the Mental Health Act and whether he should ever have been in police custody. These debates play out in the real world, find tragically attendant circumstances to behold.
FRONTLINE POLICE OFFICERS
So if you are a frontline police officer on response or a neighbourhood type role, what should you take away from these data? —
- Make sure that after EVERY detention under s136 MHA, you call for an ambulance – whether htey come or not, is up to them and may be beyond their control, but it shows you’ve attempted to comply with the Code of Practice MHA and that you’re alive to the possibility that someone’s supposed mental health presentation may be attributable to or ‘comorbid’ with other healthcare conditions which require clinical skills beyond your first-aid certificate.
- Remove people to police custody ONLY where you have the express authority of an inspector above.
- If you are called TO custody in order to detain someone under s136 MHA, you should assume you will be removing them from custody to an NHS setting and remember: you cannot just keep the person in police custody on the say-so of the custody officer: you MUST, by law, have an inspector’s authority.
Two things to bear in mind, when you arrive in healthcare settings –
- You should assume that you will need to remain with anyone who you remove to an Emergency Department.
- You should liaise with staff at any MH unit Place of Safety about leaving the patient in their care after an initial and adequate handover period.
- If you find there is insistence that you remain there, unless that is justified by ongoing risk of violence towards NHS staff, you should liaise with your own supervisors if it is insisted that you remain.
- Officers and supervisors should bear in mind that nationally agreed guidelines support the approach that officers should leave patients in the care of NHS staff after no more than an hour, in most circumstances. Local protocols should reflect this and if they don’t, escalate that to your force mental health leads.
Any custody sergeant who has been responsible for the detention of a PACE suspect who is thought to be mentally ill and in the process of being assessed or admitted to hospital under the MHA as part of diverting them from justice, should bear in mind the various obligations that arise if they decide to release someone (no further action / bail / under investigation):
- You cannot hold someone in custody after the NFA / bail / RUI decision ‘under the Mental Health Act’ unless they are subject to an application under the MHA or detained under s136.
- If they have been detained under s136, they must be removed from your custody are unless the criteria in Regulation 2 of the Place of Safety Regulations are met and key amongst them is the requirement for an inspector’s authority.
- Without that authority, the person must be removed to another Place of Safety, either a mental health unit setting or, as a last resort, an Emergency Department.
Nothing more to add really! – it all just tells us what we broadly already know and highlights a few things that we still don’t know enough about. Perhaps most importantly, is the requirement to improve legal knowledge and to ensure that local partnerships have the capacity to manage the demand they are facing.
This stuff is not just debate about statistics, it attends to the essential safety, dignity and rights of those of us whose lives are affected by emotional and mental distress in contact with the state. There’s little more to say on all this stuff, just lost more to do, as ever.
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