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What Does ‘Sectioned’ Mean?

This post is mainly aimed at police officers and is intended to ram home what the term ‘sectioned’ means – every police officer in England and Wales needs to understand it, so they can adjust themselves accordingly, if necessary! … and if you know a police officer, please spend 60 seconds of your life in the coming days telling them to learn this point! It is as important as knowing ‘reasonable grounds to suspect’ and other legal matter you would expect to have to learn.

This post intends to keep you out of trouble: nothing more and it’s necessary because of the sheer number of tweets, emails and other communications I get where this point has been badly misunderstood. I accept this is occasionally due to the way some mental health professionals explain the legal position that may be in play at a given moment in time and it may be we need to check more frequently the precise position in which we are placed as police officers by asking a closed question –

“Have you completed a written application for this person’s admission to a hospital under the Mental Health Act?”

Being ‘sectioned’ normally refers to someone being detained under s2, 3 or 4 in hospital. It is informal language and not a legal term that you will find in the Act itself. In addition to referring to the point where someone is detained in hospital, it also relates to other situations: like a ‘sectioned’ patient being on authorised leave: they remain ‘sectioned’ whilst out of the hospital, within the scope of how their absence was authorised. It also relates to a certain period of time just prior to admission and officers need to know precisely where it starts –

WHAT YOU *MUST* KNOW

This is the crucial part – you become ‘sectioned’ at the point where the AMHP undertaking the Mental Health Act assessment concludes that no alternative to admission is appropriate and makes an application for a person’s admission to hospital based on medical recommendations from the Doctor or Doctors required. For an application under s2 or 3, an AMHP’s application must be supported by two medical recommendations; for s4 they need just one – but all we’re interested in as police officers, is whether the AMHP has made the application! … or not?!

If an application is completed, the person becomes ‘liable to be detained’ and is in (the AMHPs) legal custody by virtue of s137 of the Mental Health Act. The AMHP can then – and only then – detain and convey that patient to the hospital and they may delegate authority for this to others.  This tends to be where the police (and / or paramedics) become involved – by accepting an AMHPs delegated authority under s6. Once the patient is admitted to that hospital, they become an inpatient and are detained there.

Therefore this statement is also true – until the AMHP makes that application to a hospital, the person is not ‘sectioned’, they are not (yet) ‘liable to be detained) and s6 is of no application whatsoever. The situation that patient is in remains governed by whatever legal context was around them before they were assessed under the Act, which will often mean no legal context at all.

WHY AM I BANGING ON?

Officers keep contacting me – and they are very welcome to do so! Some of the questions or anecdotes show that these points are not widely understood.  Typically, confusion arises after a Mental Health Act assessment where an AMHP indicates that the person they have just assessed ‘needs to be sectioned’.  They could express this in any number of ways: including, “We’re recommending admission under section 2″ or “we’re going to admit this person under section 3″. It’s important that police officers understand these phrases and seek clarification, if in any doubt at all about what they precisely mean.

An AMHP may have conducted a Mental Health Act assessment knowing that a bed is available; on other occasions they may have no idea at all where the bed will come from. In the first situation, it is just a matter of filling in the medical recommendations and the AMHPs own application and then s6 kicks in. In the second situation the AMHP may insist on delaying the completion of their application until the bed is identified and this means that s6 has not kicked in – whatever legal situation prevailed before the assessment prevails after it, until the AMHP completes the application.

So, some examples –

  • AMHP and police officers doing an MHA assessment in someone’s home with no s135(1) warrant – let’s suppose, after the assessment, no application is made because there is no available bed and officers are asked to remain with the patient until the bed is found. If police officers choose to support this, it is important they understand the person is not yet ‘sectioned’ (by being liable to be detained) and officers have no legal powers at all. Therefore, remaining on that person’s premises is a question of seeking ongoing permission to remain and without such permission, officers have no lawful right to do so.
  • Person detained under s136 or a s135(1) warrant and removed to NHS PoS unit – let’s suppose, after the assessment, no bed is immediately available and the process to find one begins. Although the person is not yet ‘sectioned’ they can remain detained under s135/6 until a bed is found OR until the 72hrs expires.
  • Person arrested for an offence and taken to custody – where an MHA assessment concludes that admission is required, the person’s detention in police custody remains governed by PACE until such time as the AMHP makes that application. So all the normal rules of PACE apply – detention is a maximum of 24hrs (unless a superintendent extends it to a further maximum of 36) and even then detention remains subject to an ongoing need to review necessity in light of s34(2) of PACE. The custody sergeant must release someone from custody if a decision has been taken that they will not be prosecuted, either with or without bail.

SO WHAT DOES THIS ALL MEAN?

This should cause a lot of officers to reflect on their previous practice – how many times have you been at an assessment and the AMHP or DR says, “She needs to go to hospital under s2″ and you assume that from that point on, you can lawfully keep the person detained, using reasonable force and restraint if absolutely necessary?  How many times have custody sergeants seen AMHPs and DRs emerge from the medical room of the cell block and say, “We’re going to admit him under s3 MHA?” and assumed that they have lawful grounds under the MHA to continue detention?

The worst news in the world is: you don’t!  Nothing legally changes at the point where you learn of the AMHP and DRs intentions – it changes when you learn of the AMHP and DR having made the application to hospital which then renders the person liable to be detained.  So you need to be careful you’re not busy falsely imprisoning people and assaulting them, pending that confirmation.

And this makes things difficult, doesn’t it?! It begs more questions and complicated answers about what you do if you find that the mental health system has made you responsible for a person’s safety until the AMHP can find a bed. This aspect of our job, not to mention that of the poor AMHP and DR, is getting harder because there is a pressure on psychiatric inpatient beds. It is  the DR’s legal responsibility to find the bed, not the AMHPs, so go gently on the AMHP if the system is quite coming up with the goods – it’s not their fault but in reality the DR will have filled in the medical recommendation and left the AMHP with it, having delegated the bed responsibility to someone in the MH trust.

In those situations above –

  • Nothing prevents officers using s136 if a person leaves the premises of their own volition.
  • You can’t re-impose s135(1) or s136 on someone after the 72hrs has expired, so it is incumbent upon the system to reach a conclusion – although examples exist of where it hasn’t, like the situation in MS v UK [2012].
  • You have to ask the AMHP to bring pressure to bear on NHS managers to sort the bed arrangements, suggesting that there could be legal breaches of the Act going on (s13 and s140 MHA) – I’ve written about this more extensively elsewhere including how to handle the situation of having to choose between releasing a vulnerable person into harm’s way or illegally detaining them!

HELP ME SPREAD THE WORD

The single thing I want you to leave this BLOG with: knowledge of precisely when a person is brought under the purview of the MHA when ‘sectioned’, mostly because the misunderstandings all involve officers thinking it has kicked in when in reality, it has not.

Question what you are told to seek confirmation – the question I use is always, “Have you completed a written application for this person’s admission to a hospital under the Act?” and all I’m interested in hearing is “Yes” or “No”. The answer then determines what legal authority, if any, I then have in the situation I’m policing. If the answer is negative, it’s about making sure the AMHP and the DR fully understand the legal position that then exists until they make the application.

Just one last time! – a person is ‘sectioned’ when an AMHP completes a written application for a patient’s admission to hospital and until that time, normal policing powers apply, if they apply at all.


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

Winner of the Mind Digital Media Award.


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Breach of the Peace

It was in the Justice of the Peace Act 1361 that the foundations were laid for the common law complaint of a Breach of the Peace.  It is quite remarkable to comprehend that police officers today, dressed in kevlar and carrying CS incapacitant and in many cases a electronic stun device are still enacting powers that were in place before the battle of Agincourt, during the reign of Edward III.  It continued the tradition of parish constables who arrested ‘riotous and barratory behaviours’ that were a threat to the King’s Peace.  Most officers have, over the years, found that this common law authority allows for prompt action in all manner of important situations – it may be used to arrest someone who is committing a breach of the peace and someone who the officers reasonably anticipate will breach the peace in the imminent future. They may force entry to premises in order to do so and all without a warrant.

Where officers have arrested a person for a Breach of the Peace, the must place that person before the local Magistrates where the person will be ‘bound over’ for a certain sum of money for a certain period of time – let’s say £200 for six months. If in that period of time they are brought again before the Magistrates and convicted, that sum could then be forfeit.

Notwithstanding any apparent nostalgia on my part, this post is about the unavoidable point that Breach of the Peace provisions have, in fact, been modernised. Successive judgments in the courts have narrowed the scope of this power of arrest: defining how proximate any anticipation of a breach must be before a peremptory arrest; outlining the nature of a modern breach of the peace; bringing it into line with the European Convention on Human Rights. These cases all have limited what police officers can hope to rely upon. 

R v HOWELL

A breach of the peace is defined for our times in the Court of Appeal ruling in the case of HOWELL from 1982.  This judgment brought together in one binding Appeal verdict various other legal rulings, putting them in modern form –

“Behaviour that caused a constable to believe that a Breach of the Peace had or would occur had to be related to violence and such a breach occurred whenever harm was actually done or was likely to be done to a person, or in his presence to his property, or a person was put in fear of being so harmed through an assault, affray, riot, unlawful assembly or other disturbance.”

The court also confirmed that the police have a power to arrest without warrant wherever a Breach of the Peace is committed in front of the officer making the arrest, where there is a likelihood that the Breach would continue or be renewed and, where no Breach of the Peace had yet occurred, where the officer reasonably believed that it was imminent.  Outside of this, officers could be acting illegally, as they were found to be in the case of FOULKES v Chief Constable of Merseyside.

HICKS et al v THE COMMISSIONER

One of the biggest developments in a long whilse came in the case of HICKS versus the Metropolitan Police Commissioner, which reached the Court of Appeal in early 2014 but is already pending a further appeal to the Supreme Court. This is one of the most complicated judgments I have ever read – I think I did it three times, in full, before it started to sink in and although it is nothing to do with mental health law, it seems to have bearing upon how the police use this power as a proxy for them lacking powers under the Mental Health Act 1983 in private premises.

In the case of HICKS, protestors at the wedding of the (now) Duke and Duchess of Cambridge were arrested by Metropolitan Police officers whilst heading towards an assembly where the officers anticipated there would be a Breach of the Peace. They were detained in custody for a several hours and once the wedding concluded and the assembly dispersed, they were released without being brought before the Magistrate. It has been the case for many years that the police must release someone from custody if the likelihood of the breach recurring is eliminated. Civil action was brought against the Commissioner to argue that detention was incompatible with human rights law, specifically Article 5 of the European Convention.

The particular argument was that police officers cannot arrest under these Common Law provisions unless they have an intention to bring the person before the Magistrate.  I’ll let you digest the specific details of the challenge and judgment for yourself if you are more interested: suffice to say here that the Court of Appeal accepted that the police had such an intention at the point of arrest but the need for this dissipated once the Breach of the Peace was over.  The HICKS case is due to be heard by the Supreme Court in a further Appeal, later in 2015.

PROXY POWERS

So what’s all this have to do with policing, mental health and criminal justice?! The police have often found themselves using Breach of the Peace powers in various situations, but especially in private premises where they have no options under the Mental Health Act itself. This includes incidents where vulnerable people are harming themselves in their own homes or threatening to do so – Breach of the Peace has been seen as just one of several options with which to improvise your way through a difficult incident. One of the often-asked questions is whether a person in their own home, intent on injuring only themselves is committing a Breach of the Peace? The definition indicates a person being put in fear of violence: it has always been my view that Breach of the Peace doesn’t cover incidents of self harm where no-one else is put at risk.

Do you remember reading on this BLOG about the Ten Minute Rule motion put forward in the last Parliament by Sir Paul BERESFORD MP? – he had spent an evening working with the Metropolitan Police and found himself on the 14th floor of a Wandsworth tower block in the midst of a mental health crisis incident. His experience of seeing the legal difficulties faced in safeguarding a vulnerable person who was at obviously a risk to herself led him to walk into the House of Commons and propose changing the Mental Health Act 1983. His motion was, in effect, sidelined because of the Government were engaged in a formal review of all police parts of the MHA and his proposal was already under active consideration but in the end, the Government advised against changing either s135 or s136 to allow for intervention by the police in private premises.  So how did the Metropolitan Police resolve the otherwise unresolvable incident? Yes – by arguing that they anticipated a Breach of the Peace, which may or may not have been occurring. Subsequent to this appeal, the Code of Practice (2015) to the Mental Health Act stipulated (in paragraph 16.29) that officers should not use Breach of the Peace powers in preference to s135 of the Act. Good luck getting an AMHP at no notice to make that work!

So Breach of the Peace is actually a far narrower, much more limited power in the early twenty-first century than we might imagine; and you only have to search about on the internet to find solicitors who specialise in challenging police misuse of this provision. It has long since been noticeable that custody sergeants have challenged arresting officers about the breaches they bring to custody and what is really important is that unmet mental health demand is not masked by police officers improvising their way through an incident, fudging legal powers that have long since been clarified by the Courts. To do so, is to fail to do our utmost for vulnerable people who really need mental health crisis care and it is to ensure that mental health services never truly understand the nature and variety of their demand.


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

Winner of the Mind Digital Media Award.


Christmas getaway

De-escalation Techniques

Have you heard this phrase before? A concept quite often referred to in mental health care – it refers to an approach by mental health nurses to defuse situations of potential violence and resolve them without the professionals resorting to the use of coercion or physical force. De-escalation is something that is trained to staff who are employed in mental health units, an adjunct to training received control and restraint and to be preferred to it, whenever possible.

Last year, I gave evidence to the Home Affairs Committee during their inquiry into policing and mental health and I was directly asked about whether the police service needed to learn from the mental health system. After the tragedies we’ve seen in policing where officers are confronted with violent situations – vulnerable people exhibiting significant levels of resistance to lawful detention or a broader public threat – there are predictable questions if officers have resorted to the use of force and disaster has resulted. Did they have to use force? – couldn’t they have negotiated or persuaded to a non-violent outcome? These are understandable questions if someone has died under restraint and families in particular suffer acute anguish wondering if any more could have been done to effect a different outcome (and indeed, securing answers about what was, in fact, done). So the question at the Home Affairs Committee was whether police training is “adequate in terms of trying to de-escalate a situation where somebody suffers from a mental health condition?”

There are few things to say about all of this and my answer to the committee is something I stand by even after a year’s further reflection and work at the College of Policing.  I think we train police officers to de-escalate – emphasis on verbal communications which attempts to influence people without resort to force and to contain a situation where possible, to allow for negotiation and persuasion, as long as this is consistent with public safety. We can even point to incidents that made national news to demonstrate this: a couple of years ago, the M42 motorway (near my house!) was brought to a standstill on a Saturday afternoon whilst officers attempted to negotiate and de-escalate a situation where a man was threatening to jump. They worked hard at this for 27hrs before making a break-through without any use of force. When I first arrived at the College of Policing in September 2014 one very early meeting included discussion about the police use of taser, which is of particular concern to many mental health and human rights groups, because of disproportionate deployment where people are in crisis. It was replete with emphasis about verbal communications and tactics to de-escalate.

It’s just that the word de-escalate was NEVER used.

HERE’S THE PROBLEM

This is not language that the police use to describe what they train people to do, but we do emphasise de-escalation wherever possible and many of my colleagues are very good at it. I’ve seen some police officers at work and concluded that they could sell snow to Eskimos, such are their persuasive skills and like the M42 incident, I have seen individuals who are threatening serious harm either towards themselves or others and officers have influenced them to do otherwise, without a finger being laid upon them or force being threatened. Other police officers struggle in that regard – but to imagine it would be otherwise is ridiculous because this variance is also true within mental health services.

To an extent, it surprises me to hear that the police are being encouraged to look at mental health nurse training in the development of their own. This is for a few reasons. Firstly, mental health nurses work in very different environments to police officers and are often permitted and encouraged withdraw from certain types of situation the police are obliged to walk towards. It’s one thing to hope to influence a person who is unwell in a mental health ward who is threatening violence; another to do so in wasteland with a man who is covered in petrol and threatening to set himself on fire. Nurses and healthcare assistants do, from time to time, face people with weapons but their role in such a situation is different to that of a police officer – the dynamics change when you’re obliged to de-arm that person, whether by negotiation or otherwise. Secondly, if de-escalation training is a package of objective skills that have been designed on the basis of evidence and then taught to relevant staff, I do wonder why some things I’ve seen on mental health wards have involved what must only described as ‘escalation techniques’? – I’ve more than once been called to a psychiatric unit and seen nurses engaged in exchanges with the potentially violent patient they had called us about and seen things that took my breath away. Nurses stood in the personal space of a patient, shouting orders at them shortly after demanding a 999 call to the police. It does make you wonder: if you say this patient is potentially violent and ‘smashing the ward up’, why are you within arms of length of them and shouting loudly, therefore placing yourself at raised risk of assault?! I actually suspect if I were a patient and you did that to me, I’d exercise my legal rights to put distance between us (section 3 of the Criminal Law Act 1967 refers.)

Finally, these issues around techniques and training aren’t actually regarded as effective!  There is research from as recently as last year, that training in so-called de-escalation techniques is not effective; and there is other research that de-escalation techniques themselves are not effective.  Oops! – this goes someway to explaining the varying skill base you see in police officer and in mental health nurses. Some people are naturally capable in environments where it would be preferable to all concerned if threats and risks could be mitigated without the use of coercion and physical force. For every mental health nurse I’ve seen acting somewhat bizarrely by agitating and aggravating a patient, I’ve seen others who are very patient and restrained – I’ve no doubt there are countless incidents on mental health wards every day that the police are never called to because a nurse has calmly resolved issues by de-escalating a crisis, including some that will have involved weapons and other serious risks. I’ve also wondered whether de-escalation techniques been seen as a package of objective tools and tricks that can be taught is the reason why some mental health nurses have asked the police to move straight to a use of force when they arrived?

YOU’LL HAVE TO TASER HIM!

More than once in my career I’ve entered a mental health unit and been told, “You’ll have to Taser him!” or similar – only to then resolve the incident without touching anyone. It’s almost as if the nurse has thought, “We’ve done our de-escalation stuff and it hasn’t worked so now the police will have to use force” and there are two things to say about that —

  • Attempts by a mental health nurse to persuade someone to do anything and attempts by a police officer are two seperate dynamics – the officer will usually have instruments of coercion hanging off their utility belt, the skill to use them and a power of arrest and we cannot pretend this doesn’t alter the way in which persuasion is contextualised even if the two professionals have broadly undertaken the same tactics in hoping to influence. (This point is unaltered even in situations where nurses are attempting to administer medication without consent and have colleagues on hand to assist, if need be.)
  • The police are not just here to do as they’re told by the mental health system – in fact, history shows they would often be very unwise to do so. It is for police officers themselves to judge whether or not to use physical force and many will be aware that the presence of a uniform can often ‘promote compliance’ even after the best nursing efforts have failed. It’s back to that point about context and it is also about remembering what policing is *for*. The last time a mental health professional asked me to coerce a patient, I refused and I’d happily account for why I refused.

Taiichi OHNO (of Toyota Production System fame) used to talk about change thinking in manufacturing and said, “Don’t give it a name – people will want it to come in a box.” In other words, learning how to improve systems, lower costs and improve quality is about understanding the system you operate and improving it where it is; not in bringing to bear external, generic techniques that may not be as relevant as first thought. I think of that when I hear talk about de-escalation techniques because the interaction with an acutely unwell patient (or for that matter, a criminal who is attempting to evade arrest by the police) is a human interaction, not a systemic one – it is situationally specific not just to that patient and the professional (of whatever hue), but also to the context of its occurrence; like a bridge over a motorway, or a room in psychiatric unit. If training is not especially effective at instilling appropriate professional responses in nurses and if those responses are not especially effective to begin with, then we have to question the relevance of them to policing when we know that policing is qualitatively different anyway.

None of this should be construed to mean that there will be nothing of relevance, but what seems common across nursing and policing when it comes to defusing incidents that involve acute risks to human beings is that ability to build a quick relationship with someone and use it to persuade and accepting it won’t always work. The last time I was negotiating to influence by hoping to de-escalate a crisis, it failed spectacularly but the personal and legal position around that person made it extremely likely to fail. I know that I’ve been in situations where I’ve struck up a great relationship with some vulnerable people and influenced them; I also know that I have, from time to time, been seen by others as an antagonist and a colleague of mine has been far better placed to take the lead.

People are peculiar: whether patients, professionals or police officers. We need bespoke responses that reflect individuals – not standardisation.


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

Winner of the Mind Digital Media Award.