Complusory Treatment Orders – Scotland

There I was, enjoying a short break from almost two days of seige managing hundreds of emails like a real street cop and due to drive to a meeting when Nottinghamshire Police rang up with the question I have already declared to be the winner of the “most difficult legal question on policing and mental health – 2016”. The bookies have now suspended all other bets despite there being almost a quarter of a year left to go!

“We’ve got a bloke in Notts who is apparently missing from s113 of the Scottish Mental Health Act and we need to know whether there is a cross-border power to redetain him!?” Thanking you kindly, Sergeant HORSNALL (the Notts MH coordinator)! … what the hell is s113 of the Mental Health (Treatment and Care) Act (Scotland) 2003?! – I couldn’t freely recall it, if I’m brutally frank with you! I’ve read up on various parts of the Scottish MHA but for obvious reasons have far less knowledge around it than English / Welsh law. I once did commit to memory the provisions in Article 8 of the Mental Health (Treatment & Care) Act (Scotland) 2003 (Consequential Provisions) Order 2005 – it all just trips off the tongue, doesn’t it?! … this order allows for the police in England, Wales or Northern Ireland to detain a Scottish patient when found elsewhere in the UK. This mainly relates to patients who have absconded from mental health units where they were inpatients and obviously, that’s not what Nottingamshire were ringing about! You know when you feel you’ve got your head ’round stuff and someone throws a curve ball?!

First things first: the Mental Welfare Commission for Scotland is a great source of advice on all things around Scottish mental health and capacity law.  This includes short guides and summaries in accessible language – worth checking out if you’re in Scotland or dealing with any issue involving Scots’ law.

My interim advice was – whilst I tried to look up the answer! – to consider whether or not the grounds exist for detaining the man under s136 of the English Mental Health Act; and if so, that would allow removal to a Place of Safety where people who know more about this stuff can unravel it all! It also has the advantage, being quite honest, that the person can be removed to a local health facility pending that unravelling and any decision about whether or how the person will be returned to Scotland. If we could latch quickly on to a specific and obscure legal power that we think allows re-detention, then a) we’re are operating amidst uncertainty; and b) Nottinghamshire Police have the problem that repatriation has to be negotiated directly with Scotland and local mental health services could resist becoming involved. Use of s136 obliges them to get involved sooner and may mean the patient doesn’t end up sitting in a police station for hours whilst things are sorted out. Let’s keep our eye on the ball!


In Scotland – as in England / Wales – they have a legal mechanism known as a Compulsory Treatment Order, covered by ss63-66 of the MHA(s). Whilst it has obvious similarities to the CTOs south of the border, they are different in other respects and legally distinct entities. They allow for an application to be made to a Tribunal in Scotland, based upon medical opinions and a report from a Mental Health Officer (Scottish equivalent, roughly speaking, of an Approved Mental Health Professional) to determine whether someone should be subject to legal conditions and restrictions to ensure their mental health and wellbeing. One of the main differences in Scotland, is that it can lead to hospital admission but the Tribunal can move straight to a CTO whilst the patient remains in the community. In England / Wales the person must have been a s3 or s37 MHA inpatient first.

The question that arose somewhere in Nottinghamshire early today, is whether a Scottish CTO patient who has travelled to England can be detained by English Police and returned to Scotland? Obviously, this could mean a patient who has not been an inpatient at any stage and who could be subject to any number or variety of conditions and restrictions on their CTO, detail of which might not be available at the point of decision making. It may not be as simple as whether they have or have not ‘absconded’.

Under Scots’ law, a Mental Health Officer may apply (s63) to a Tribunal for a CTO. The Tribunal then have the power to grant a CTO or an interim CTO, with various conditions. Those may include, detention in hospital or certain conditions connected to ongoing residence in the community  to ensure the wellbeing of the person. The conditions could include a residence requirement, an attendance requirement (e.g., to an outpatient clinic for treatment) or other conditions as thought necessary. Under s112(3) and s113(4) of the Scottish Act, the ‘responsible medical officer’ (RMO) for the patient can authorise them to be taken to a hospital, for treatment if the attendance requirement or any other measure is not complied with and it is thought necessary to ensure that person’s health.


So if we’re all now getting really interested in this(!) we can start wondering whether the conditions are considered breached and whether the RMO has given an authorisation under s112 (if there is an attendance requirement) or s113 (if there is a breach of any other measure applied as a condition). Of course, depending on the detail of the CTO, it may be that the person isn’t breaching any of that and has simply travelled to England when there are concerns, for whatever reason, about their health. Unless the police can access the RMO or someone who can communicate information on their behalf, we can’t be certain that s112 or s113 will apply. In any event, does that authorisation extend to English police officers?!

Well, if the person has breached a residence or attendance requirement on their CTO, they may be taken in to custody by a Scottish police officer. As such, they may be taken in to custody by an English, Welsh or Northern Irish police officer under Article 8 of the 2005 Consequential Provisions Order. So it therefore depends on whether we know that a CTO condition was breached. Without being able to contact anyone, we can’t know for certain, even if we had been confident of the law! – comes back to that old thing of information sharing across mental health and criminal justice and the legal knowledge of those who are communicating with the police. Nottinghamshire Police were emphatically told that Article 8 covered the situation, but no-one could confirm that the CTO had been breached – so that information may not have been correct and there could easily have been a false detention or a deliberate decision not to detain someone who could have been safeguarded. I could have flipped a coin at this stage – instead, I spent the money on ibuprofen to help my headache.

In the end – and this, right here, is my point! – there is a lot to be said for just dealing expediently with common sense with what is right in front of you and cutting through all of the garbage, above. Whilst I’m enough of a nerd about this stuff that I had to keep reading and researching until I understood the answer, guess what?! – my instinct was the right one based on what we could confirm and that even if I’d been wrong, the action recommended as interim advice sufficed to handle the policing dimension of the call and it would allow others who are better qualified to untangle it all!  We’re not mental health nurses, lawyers or psychiatrists and we don’t need to be: we’re police officers and we have particular responsibilities – prevent crime, bring offenders to justice, protect life and property and maintain the Queen’s Peace – the end. He was detained under s136 of the English Mental Health Act 1983 – and quite rightly, too. Any criticism of not using appropriate powers under Scottish law comes back to mental health services being unable to clearly communicate the precise situation they were reporting.

Here is a document from the Scottish Mental Welfare Commission – ten pages of stuff about various kinds of cross-border transfers and absconders involving Scotland and other UK jurisdictions: it just shows how silly things can get, legally speaking!

IMG_0053IMG_0052Winner of the President’s Medal from
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.



Individual Experience

What value do we place on personal experience, especially where it comes down to individual opinion? I’ve been struck recently by the number of attempts we make to infer from individual opinions and experiences, lessons which might influence our overall approach to things. Last night, I was interviewed by the BBC about policing and mental health issues to coincide with the College of Policing publishing new APP (guidelines) and training packages. North-West Tonight are running a two-part feature about the story of Neville, a young guy from Manchester who has mental health problems and who, we learned, was imprisoned for assaulting a police officer whilst they were dealing with him whilst in distress. Understandably, having been detained by the police, subjected to a use of force and taken to police custody, his recall of events was fairly negative overall. The line of questioning from the BBC was along the lines of “Don’t the police and criminal justice system fail people like Neville with mental health problems?” … “aren’t we unnecessarily criminalising people here?” … “isn’t there an institutionally ingrained problem with officers’ attitudes towards mental health?”

All from one story! Fair enough: many other people have got negative stories too, so I’m not suggesting this is an isolated example but it has to be seen against the background of incidents where the police have been found to be quite exceptional, in variety of ways. More realistically, the majority of encounters will be somewhere in between – officers ensuring a professionally acceptable response to situations where the option of doing the right thing may not always exist and where the time for an earlier, less stigmatising intervention by anyone is days or weeks behind the encounter.

The irony here is: this is just my opinion – which I fully accept needs broadening out with some theoretical frames of reference and some proper research! In the next life and / or after I win the lottery, I’m going to do research on this stuff because it’s quite badly needed and long overdue.


I’ve written about ‘criminalisation’ elsewhere: there are two general theories around what it means –

  • Processes which have the effect of making people feel criminalised around healthcare issues – if the police, custody blocks and the courts become involved in what are, in essence, responses to healthcare difficulties, are we not criminalising people?!
  • The nature of decisions when CJ professionals know they are dealing with someone who is mentally ill – are these decisions different to the decisions those professionals would take if mental vulnerability were not thought to be a factor within the incident?
  • So, if you like, it’s the different between the subjective and objective experience – small consolation to individuals, but relevant to looking at the impact of public policy. Of course, this is a false dichotomy: any sophisticated society would blend the two to understand the dynamics at play.

So, it probably depends on your perspective, your politics (small p) and the context of it all – if you have a health problems, have not offended in any way and can only access mental health services via the criminal justice system, then yes: you’re going to feel criminalised when compared to those with other kinds of health problems. If you have come to the attention of the police after members of the public saw you in the High Street in possession of a knife, then we need to think differently. People in public with knives are usually arrested and then quite frequently prosecuted or cautioned for the offence. If the outcomes for people with mental health problems are different, then we can take another view about whether they are more or less ‘criminalised’ than the norm.

In reality, once officers suspect or know you have mental health problems, you are less likely to be arrested and prosecuted for possession of a knife and more likely to be detained initially under the Mental Health Act or entirely diverted from justice. You could argue, as various academics have, that this amounts to people being less criminalised than would otherwise be the case – research over fifty years in various countries show that if diversionary mechanisms are made available to the police who are properly trained in how and when to access them, they will use them. So even by this yardstick, the extent to which we criminalise people is within our control.


This idea that police attitudes are culturally ingrained and in bad need of a sort out requires a few responses. Nobody doubts that there are attitudes in society around mental health that need challenging: we draw the police from society and then subject them to a very perverse perspective on mental health issues, so I think it would be genuinely stunning if we didn’t see examples in policing of poor attitudes. We see it everywhere else, including in mental health services, on the news and in politics – so why would the police be any different?! But look at last year’s CQC report on mental health crisis care: your police service were thought by patients who have experienced a crisis in their mental health crisis to rank second only to the ambulance service in exhibiting positive, patient and compassionate attitudes towards those in distress.

This is not that bad when you think the others who were rated by patients included mental health teams, GPs and A&E. The police has work to do, no doubt, but it’s hard to land a claim of ‘poor attitude’ when this recent research suggests patients themselves value their attitude more than most and despite the overall crisis care system often forcing officers to take decisions they’d rather not – like removing people to police custody as a Place of Safety, which still happens too far often.

Extrapolating conclusions about attitudes from individual actions is also fraught with worry. I’ve been known on occasion to authorise a ‘serial’ of officers in heavily protective equipment (riot gear), armed with tasers, batons and shields to detain a man under the Mental Health Act. This no more reflects my general attitude towards mental health issues than the colour of my car says anything about it but it would be stretching things to expect the extremely unwell man who was thereby safely removed to hospital to see it that way when he was no doubt, very frightened and unwell. I can’t rule out that if I was being spat at or bitten by someone with mental health problems, that I wouldn’t use force in order to protect myself from assault. The allowance that is often made for mental health problems is in the criminal justice outcome, rather than the immediate actions in ensuring everyone’s safety – which includes police officers’ safety.


One thing I’ve heard repeatedly throughout my decade of work in this field, is that people value the fact that they police are always there for them. Even where people can see that officers haven’t always been at their best, haven’t always done the right thing (for whatever reason), they have often valued the fact that they are, at least, there. Of course, the police have got improvements to make, lessons to learn and I hope that the new APP and training packages go some way towards ingraining those learned lessons. Of course, there are many examples of people’s we would probably all agree people were ‘failed’.

Your police service is responding to millions of mental health related events every year: using Mental Health Act powers over 28,000 times in England alone, over 50% more than they were a decade ago; encountering hundreds of thousands of crisis incidents every year. It’s easy to keep bringing out that half of people who died in police custody had mental health problems without remembering that many of those had other complications and complexities, like substance abuse and / or other underlying health problems. It’s a shame we don’t have a mandatory duty to refer incidents somewhere every time officers saved somebody’s life, often by risking theirs – I suspect the second number would dwarf the first; and I don’t say that to diminish to in any way the importance of ensuring all police forces learn the lessons from each death in custody. It’s vital that they do.

But credit where it’s due – and as national guidelines and training are yet to have effect, it’s mainly due to the tens of thousands of frontline, untrained operational police officers who police with common sense and compassion the vast majority of the time. If we want to talk about whether people are ‘failed’, we should look at the overall system within which those officers are required to make black and white decision, arising from endless shades of grey about what the ‘right’ thing actually is. And if we ever want to check their attitude, we need as a society to look at our own.

And this is just my individual experience and opinion – it probably does need triangulating with far better research!

IMG_0053IMG_0052Winner of the President’sMedal from the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award


Bed Management

There was considerable interest last night in a news story I tweeted – it generated way more than the expected number of replies, it was retweeted more widely than most news stories I circulate.  It related to an apparent ‘threat’ by the Chief Constable of Devon and Cornwall Police to ‘take the NHS to court’ around mental health bed shortages. From the 5th September, the Chief ordered a new process to apply to those situations in police custody where people are detained after arrest whilst awaiting an inpatient mental health bed. This usually relates to situations where there is difficulty for mental health services in identifying where a particular bed is available. Less often, I’ve known the problem to be disagreement about what kind of mental health setting is the appropriate one or disputes between areas where patients were assessed after arrest in area 1 when they are residents of area 2 – which may or may be nearby.

Either way, the problem is: Mental Health Act assessments of vulnerable people which conclude with a decision to admit someone but where the Approved Mental Health Professional (usually a mental health social worker, who is legally warranted to ‘section’ people) cannot complete their application for admission within the timescales which are available to the police. And even then, there is frequent misunderstanding about what those timescales actually are! … but that’s for another day.


First, we need to clear up some confusion, shown both in the article and in the response it has received in social media land. More concerningly, this confusion is also seen in the media response by healthcare managers to the Chief Constable’s action becoming known. Most of the incidents to which the letter relates will NOT be use of section 136 of the Mental Health Act 1983. Even when police custody was more widely used as a Place of Safety under the Act, there were very few incidents of bed searches taking more than the 72hr permitted maximum. The MS v UK (2012) human rights case was such an example, but they are very rare. It is far more frequently the case that bed searches are problematic for patients who were originally arrested for alleged offences where the subsequent decision is taken to divert them away from the criminal justice system. So talking about the reduction in the use of police cells as a place of safety is the straw man fallacy exemplified: it’s just not what this is all about, except very rarely.

Some social media respondents have also suggested this is the result of austerity and political decisions. It’s not for me to get party political about this, but I would point out that I’ve been banging on about this for well over ten years. There is an example from 2005 of a police force threatening and then preparing to commence legal action about this kind of situation. It involved a vulnerable man spending over three days in custody because of NHS arguments about beds. In that example, the force concerned referred themselves to the IPCC because they were so concerned they were acting unlawfully having taken a decision they would rather keep the man safe when it was obvious he was a serious risk to himself than release him because of an inability by the NHS to comply with our country’s legal frameworks.

So this is not just about politics, either – this was happening when the NHS was at its peak level of funding for the last few decades it’s not just a political point. It’s more probably linked by to the ongoing attempt to ensure that resourcing and obligation around mental health crisis care is transferred from health to policing; just as we transferred responsibility around institutionalisation from health to prisons – the project has been operating under the radar for fifty years or more. Even to the extent that the last two Governments have taken decisions about health funding, it also remains true that NHS England and Clinical Commissioning groups across England have often taken decisions of their own to disadvantage mental health. You may remember about five years ago, NHS England applied a lower level of uplift to funding of mental health services when compared to other services; you may be aware that in the last month, it has emerged that more than half of CCGs plan to cut the proportion of their budgets given over to mental health services. I could go on!


Last week I received an email from a police force Chief Inspector who had become embroiled in just such one of these situations and was seeking advice. I saw emails yesterday that show the discussion that was prompted by an attempt to review why a situation had occured in police custody that was almost certainly unlawful. What was most interesting about it, is that the senior health managers in that case made it clear that they did not see the situation as being unlawful at all.  They didn’t say why the analysis being applied by the police was wrong, of course. Just that they were wrong.  I’ve seen that done many times before.

So here’s the reminder –

  • A person under arrest at a police station is detained there subject to the laws contained within the Police and Criminal Evidence Act 1984.
  • A person who has been assessed for admission under the Mental Health Act is not ‘liable to be detained’ until an AMHP makes a written application for that patient’s admission to hospital.
  • Whether these two things work in effective conjunction will depend on the circumstances in each case, but they certainly weren’t designed to do so: PACE makes no mentioned of ‘diversion’ from justice; the MHA makes no special reference to circumstances where assessments occur in police custody.
  • Be default: no mental health services or professionals should rely upon the provisions of PACE to enable the detention in custody of someone who is thought to be mentally ill: that’s why we actually have a Mental Health Act, somewhat obviously!
  • The MHA contains provisions to enable the urgent admission to hospital of people who are in need of that; AND provisions to ensure that CCGs and Local Health Boards (in Wales) provide for it, where required.
  • It’s a question of how services are commissioned and delivered.
  • Detention of anyone outside these frameworks is – very straightforwardly – a violation of Article 5 of the European Convention on Human Rights. Ergo, it’s unlawful!

Just from my own perspective, I do admit to wondering why people are surprised a police officer is wanting to see the law upheld, especially where failing to do so could bring very real legal liabilities for individual police officers and, indeed, for him as a Chief Constable? He was to be able to explain to courts the legal basis for detaining people against their will and where such explanations are difficult-to-impossible because of decisions by other organisations over which he does not assert control, it strikes me that he has every right to secure his own position. We know the NHS does likewise, in lots of other situations!


Is this kind of thing a threat to partnerships and partnership working? – maybe. But what kind of partnership expects one party to take on board the risks, costs and liabilities associated with the other being unable to comply with legal frameworks that apply to them?! Imagine if the police decided they don’t have the resources to deploy officers to mental health units when disorders occur which threaten the safety and wellbeing of staff; imagine if the police failed to investigate allegations of criminal offending by patients against staff?! Of course, both of those things have occured, in the real world, haven’t they? Did the NHS say, “that’s OK, we appreciate resources in the police have been cut by 20% and that this is very difficult so we don’t mind and we’ll accept it whilst talking reassuringly about partnership working”?

No – they didn’t!

Partnership working is about far more than ‘getting on’ and / or appearing to get on. It is also about challenging each other to improve – challenge can, and does, take many forms in partnership land but the worst news for those who take a dim view of the Chief Constable’s decision to force the situation is this: in all my years of trying to highlight this particular problem, I genuinely regret to conclude that agitation towards ensuring compliance with legal frameworks; and threats or commencement of legal action are the only things that have secured the onward release from custody of vulnerable people who would otherwise have spent many more hours or days in custody than they did.  Power to change that rests with CCG managers who could ensure the legal responsibilities they have under s140 MHA (which I would argue 95% of them either don’t know about or aren’t complying with, even if they do) are adhered to. I don’t understand why they shouldn’t be accountable for any decision they’ve taken to disagree with those frameworks.

When our system of hospital admission was introduced in the 1959 Mental Health Act, Parliament did not have in mind the highly deinstitutionalised model of community mental health care that we currently see. But yesterday, the University of Manchester National Confidential Inquiry on Suicide and Homicide revealed again what the Royal College of Psychiatrists Commission on Acute Adult Psychiatric Care already told us earlier this year: the balance between community mental health provision and inpatient care is not right; too many beds have been cut; and there are consequentially risks being managed in the community that shouldn’t be. The police may be a legitimate part of handling the outfall of that, but there is a limit to what they can do – we should agree they have a right to raise their concerns formally if they are being directly invited to absorb the impact of those policy decisions by breaking the law.  I will freely admit I do struggle to see it any other way.

IMG_0053IMG_0052Winner of the President’s Medal from the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award