I’ve written about the issue of the Mental Health Act and hotel rooms before – focussing on the stated case of ‘Rosso’. I’m not hyperlinking to the old blog post precisely because it is now redundant and out of date – it was written a few years ago, well before the 2017 changes to the Mental Health Act which took effect in December 2018. Forget it – Rosso is now history and has been for a while. I want to go through how the police now need to think about hotel rooms and the Mental Health Act 1983, specifically sections 135/136 MHA. This post follows the desperately sad inquest in to the death of Dr Deborah Lamont who, the Coroner ruled today, died by suicide in a Cardiff hotel in March 2019.
It will be necessary and relevant to see the full PFD report from the Coroner to answer some of the questions I’m interested in, but a big issue emerges from this inquest in the immediate media coverage and which addresses a question I was asked only yesterday, during the delivery of training in my own force:
Is a hotel room a place where s136 of the Mental Health Act 1983 can be used?
My answer yesterday was, essentially “it depends – because all you can do is ask yourself the question posed by s136(1A) of the Act: is this place ‘a house, a flat or a room where that person or another person is living?'” All situations turn on their merits and it is true that some people do ‘live’ in hotels. I gave the example, somewhat ironically now, of the victims of the Grenfell Tower tragedy who are, to this day, permanently placed or housed by the local authority in London hotels. They are living there by anyone’s standards.
There is irony here because Dr Lamont was a highly-regarded university lecturer who also worked for the British Red Cross and was awarded the Henry Dunant Medal – the highest honour given by the Red Cross – after work in the aftermath of the Grenfell Tower tragedy. In March of 2019 she booked in to a Cardiff hotel for the night and sent worrying text messages to her boyfriend. Police officers attended the location and found an unsuccessful hanging attempt. The officer’s judgement about the relevance of s136 MHA was that it could not be applied in the hotel room, a view the Coroner described today as ‘probably erroneous’.
This legal question is something of a mess and I want to outline some history here; because I feel desperately sorry not only for Dr Lamont and her family and friends, but also for the police officers who attended and found themselves having to make a black / white decision about a legal question that perplexed the Home Office in their 2017 guidance and which has caused considerable debate on Twitter a number of times. Section 136(1A) is the sub-section which tells us where s136 MHA powers may be used —
Section 136(1A) MHA – the power of a constable under subsection (1) may be exercised where the mentally disordered person is at any place, other than —
(a) any house, flat or room where that person, or any other person, is living, OR
(b) any yard, garden, garage or outhouse that is used in connection with the house, flat or room, other than one that is also used in connection with one or more other houses, flats or rooms.
So, if you attend any location, the question an officer must ask themselves: “is this place a house, a flat or a room where that person or another person is living”. As a judge once said when advising a jury in another case about reasonable force, “these are ordinary English words, they have an ordinary English meaning”. And we must interpret them accordingly. When the Home Office and Department of Health produced guidance for the 2017 amendments to the Mental Health Act 1983, the guidance document contained no reference at all to hotels. That guidance states (in paragraph 2.5) that in most situations it will be obvious whether or not s136 applies, “however in other situations it may be less-clear cut”.
Hopeful, isn’t it?! The police officers in poor Dr Lamont’s case found themselves wrestling with this matter for real, in a life-threatening situation. I’ve no idea what training their force provided about the 2017 amendments or whether that force delivered the 2016 College of Policing training which arose from the Crisis Care Concordat, but the press reported the officer to have said he didn’t believe he could detain her because she was not in a public place. It should be noted, that media report is not quoting the officer, they are summarising or paraphrasing so allowances should be made for accuracy here. But the ‘public place’ concept in the phrase “place to which the public have access” disappeared from the law in December 2018.
It’s not about public paces – it’s about houses, flats and rooms where that person or any other person is living.
THE LAW AS IT STANDS
Clearly, some of the Grenfell Tower victims are living in hotels – the promise of accommodation and re-housing that were made as the building still smouldered did not manifest for everyone and people were indefinitely placed in various kinds of hotel. They are, by any standards, “living” there. If a mental health crisis incident took place in respect of such a victim and the police attended that hotel, it should be argued that person is not able to be detained by the police under s136 MHA – a warrant would be required under s135(1) from a Magistrate to remove the person to a Place of Safety and that would require an AMHP to get the warrant and attend the location along with a doctor and the police.
But that’s not what happened in Dr Lamont’s case – she booked in to a Cardiff hotel for one night and then sent concerning text messages implying she was suicidal. The police were called and attended the hotel around 6:15pm, forming the view that they could not use s136 MHA. Now, this next thing is really important, but it’s also why I’ll be very keen to see what the Preventing Future Deaths report says in detail. The officers liaised with the ambulance service and with a mental health CrisisTeam. It was stated in media reports that it was ‘agreed’ she was not in immediate need of care or control and she was allowed to remain in the hotel.
So there are two issues we need to think about here –
- The question of whether s136 MHA could have been legally used in the hotel room, if the officers thought that was necessary;
- The question of whether the officers did, in fact, think it was necessary after also taking advice from the paramedics and the CrisisTeam.
- These are two related, but distinct considerations – whether you could and whether you should.
- Even if the location was no barrier to the use of the power, were the other criteria met around an immediate need for care or control? – media reports suggest the clinicians didn’t think so.
When I was asked the geography question yesterday, I said I though you could argue that s136 is possible in a hotel room, if the person is not in any meaningful way ‘living’ there on an indefinite basis. When I worked for the College of Policing, I often travelled to London and stayed in a Travelodge for one night or sometimes for two nights. Whilst doing so was I living in a London Travelodge? No – I was staying there, temporarily, but my living arrangements remained in Worcestershire and if sometimes when I worked in London I was asked, “where do you live?”, I never, ever said “In the Travelodge in King’s Cross”. I suspect Grenfell victims would actually have to answer the same question by giving the name of their hotel.
What else would they say?!
LEAST RESTRICTIVE PRACTICE
The officers in South Wales obviously liaised with paramedics and a CrisisTeam – clinicians, both. The paramedic Olivia Horrigan is quoted as saying she “wasn’t happy” leaving Dr Lamont but felt she wasn’t at immediate risk. The CrisisTeam were also consulted and seemed to be a part of the decisions that Dr Lamont could remain in the hotel. Of course, even if no-one was going to give a view to the officer that s136 may well be possible, the option still remained to call for an urgent Mental Health Act assessment and, if necessary, secure a s135(1) warrant to allow for Dr Lamont’s removal to a Place of Safety for assessment. It’s happened before.
That course wasn’t pushed either by the ambulance service or by mental health services. At the risk of sounding very defensive, the focus here seems to be on a police constable getting a legal question ‘wrong’ which was dodged by Government lawyers in their formal guidance in 2017 and which is not universally agreed by the ‘expert’ mental health nurses who work in crisis teams (or street triage type services). So what standard are we holding this police officer to here?! –
Even the Coroner is equivocal, to a certain degree, stating the interpretation ‘seems erroneous’ and asking the College of Policing to clarify it. I’m not sure it is the College’s role to clarify ambiguous legislation, is it?! I know many people don’t agree on this legal question – just look at Twitter this evening to see officers telling me “if I pay for a room that room is mine – warrant all day long” and others arguing (based on other legal definitions around hotels used for short-stay) that they don’t think a warrant would be required or that there would be a barrier to s136.
THE AVOIDANCE OF DOUBT
But if there were doubt before, it now seems much less likely that hotel rooms are always out of bounds for the use of this power. But this is the big point for me: if you are in doubt about this stuff and asking in good faith, it is unlikely you’d be in massive trouble for making an ethical, necessary decision in the best interests of a vulnerable person how has been drinking, appears to have made an attempt on her life and where there is ambiguity and debate – and in this case #Team999 did take further advice.
If you’re a paramedic and you’re ‘not happy’ at leaving someone, then just ensure you don’t until you have no other legal option and have exhausted all other avenues. Remember: in some situations the only available legal option to safeguarding someone may well be to contact an AMHP and seek their support to convene an urgent Mental Health Act assessment. There are examples of where AMHPs have done this within an hour and urgently admitted someone under s4 MHA to keep them safe. How do you know this wouldn’t or couldn’t happen in this case, unless and until you’ve tried it?
And if you try this and it fails, then you’ve done your most and what more can you do? You must worry about and control those things you can control, but you can’t make other organisations do particular things! But the lesson from this very tragic case where a Grenfell hero has been lost, is that you can consider using s136 MHA in hotel rooms unless it is obvious the person is really ‘living’ in that place, on a permanent or indefinite basis.
Dr Lamont wasn’t living there – she was actually dying there and it must ache for everyone involved and affected, but especially her family and friends, to think mere ambiguity and misunderstanding of opaque legislation may have been all that stood between their nightmare and her safeguarding and surviving. We need to ensure this lessons is captured and disseminated widely. It’s the least we owe.
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 OBE, 2020
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