Condition Orange

On Monday in the House of Commons, questions to the Home Office occupied some of the afternoon. Mental health questions came up and I’ve re-produced two brief exchanges from Hansard for that day. The purpose of doing so is to document the lack of specific understanding that exists on these topics. The question and the Government response is incoherent – none of the three responses below actually address the public policy question implied by the preceeding question, but the question is poorly framed. I’ll let you read the exchange and will then outline some of the issues –

Preet Kaur Gill (Birmingham, Edgbaston)

How many people have been unlawfully detained for more than 24 hours while awaiting a mental health assessment in each of the last three years.

The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins).

Provisions in the Policing and Crime Act 2017 ban the use of police cells as places of safety for under-18s, restrict their use for adults and reduce the maximum period of detention to 24 hours. Information on the length of time for which people are detained under the Mental Health Act 1983 pending an assessment is not held by the Home Office, but we are seeking to ascertain the scale and nature of this issue and we are reviewing the available information that we were provided with last month by the College of Policing.

Preet Kaur Gill

Under the Police and Criminal Evidence Act 1984, the police have just 24 hours to hold someone with a mental illness. The College of Policing shared with the BBC last December the fact that 264 people were held for longer than this, including a mentally ill child who was held for five days. Is the Home Secretary aware of this report, and what steps have been taken to remedy the situation?

Victoria Atkins

Very much so, and I thank the hon. Lady for raising this important issue. We know that there is an issue in this area, and she will be pleased to know that her constabulary—the West Midlands—in fact does very well on this. It did not use police cells at all for such detentions last year; indeed, since 2013 it has used them on only 14 occasions. Of course, however, any such occasion is one occasion too many. She will I am sure join me in being pleased that the use of police stations as places of safety nearly halved last year, but we need to do more.

Mike Wood (Dudley South)

Does the Minister agree that a police cell or a police station is not a suitable place for an innocent person suffering from mental health problems, and will she support initiatives such as the mental health triage projects in the West Midlands to make sure that people with mental health problems get the medical support they need when they need it?

Victoria Atkins

Very much so. My hon. Friend will be pleased to know that health places were used as places of safety in more than 26,000 cases last year, compared with 1,029 cases of using cells, but we are determined to try to sort this out.

CONDITION ORANGE

For all the use it was, the minister may as well just have said ‘condition orange’ to all three questions because her replies are answers to different questions, that simply weren’t asked.

  • Firstly, how many times were people unlawfully detained? – the answer to that question is a number. It either happened zero times, or ten times or a thousands times, etc. We need an integer. In fairness to the Minister, we don’t accurately know because police forces don’t know this figure accurately. But the point here is, no matter how few or how many people are taken to police custody as a Place of Safety under the Mental Health Act 1983, such people are NOT people detained unlawfully for more than 24hrs – condition orange.
  • Secondly, the College of Policing data referred to and quoted by the BBC came from some work I did in 2016 – it related to people brought in to custody under arrest for offences who are then subsequently ‘sectioned’ and diverted from the justice system, albeit after many days in some cases. The ‘zero’ figure being referred to is the number of people detained by West Midlands Police under s136 MHA which is nothing whatsoever to do with how many criminal suspects were diverted from arrest under the MHA – “How many people were unlawfully held?” – condition orange.
  • Finally, street triage isn’t an inherent way to reduce the use of police custody for ‘innocent’ people suffering mental health problems. Some forces had managed to eradicate the use of custody or reduce it to truly exceptional levels before street triage was ever invented and in some areas where they had street triage, use of s136 (and its potential to lead to custody) continued to rise. “We don’t want vulnerable people with mental health problems in custody unless they’re accused of offending so how shall we do it?!” – condition orange.

(Interesting use of the word “innocent”, there – because all people under arrest are innocent until they’re proven guilty, even where they are arrested for murder, so ‘innocent’ means literally everybody.)

It doesn’t matter how few people are taken to police stations under the MHA as a Place of Safety, there will continue to be a large number of people taken to custody under arrest – and that is partly the delivery result of the Government’s decision to re-affirm that the police service in the UK should not have powers that almost all other police services have got: a s136 type power in private premises. So where offending behaviours are involved and where risks of further harm exists, officers who cannot lawfully use s136 MHA will resort to other lawful powers to keep people safe – that is only human instinct kicking. As a consequence, we need to understand the different dynamics that exist for the MHA-Place of Safety cohort (who are encountered in places which are not dwellings) versus how things work differently where people are arrested for offences and still taken to custody.

As Hansard shows, we obviously don’t know the difference.


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

Winner of the Mind Digital Media Award.


Since this blog began, the law of England and Wales, including the Codes of Practice to the Mental Health Act 1983 have been updated, several times. Always check the date of publication, displayed below; and cross-reference to current legislation and guidance when using this material as a reference guide.


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Much Less Blogging

You guys seemed to use the BLOG a lot last year, way more than any other single year since I started in 2011 and that was really encouraging on one level. However, I couldn’t help but notice the vast majority of the increased use was down to two things —

  • The series of posts which related to the Policing and Crime Act amendments of the Mental Health Act 1983, introduced in to law last December.
  • A series of posts in which I just said again the same things I’ve said for years, only in light of new events, seeking to ram home the same point as before.

There are now well over 700 posts on here – many of them saying the same thing over and over again and I don’t under-estimate that dripping like a tap is actually a necessary part of drilling home a message, particularly one that doesn’t always sit easily or appear straight-forward, but the essential messages in this blog are simple:

THIS BLOG – KEY ISSUES

  1. We need to take responsibility for understanding the law of the country as it actually is, rather than as it’s rumoured to be.
  2. We certainly need to know medical risks associated with any work which involves the compulsion of those of us living with mental health problems.
  3. We need to get on with our work knowing that organisations and their partnerships are not perfect, that we haven’t had enough training – we never, ever will have enough for the range and the complexity of stuff.
  4. We need to know how to police amidst uncertainty and contradiction, in light of all of the above.
  5. We must learn the lessons of history and, where necessary, teach them to others – one situation at a time, if we must.
  6. Police officers need to know how to police: regardless of context, training and partnerships. In fact, history shows the latter may confuse you and get you in trouble – you need to get your own head around this stuff from source material.

I’m going to be doing much less blogging this year: a very deliberate decision because a) I’ve actually run out of things to say, really and b) I actually do have other things I want to do with personal my time and I owe it my family – stuff mainly focussed on my own health and wellbeing, to be fair. Although I work on this now as a full-time job, most of the blogging remained exactly what it is right now as I type these words: personal effort in my own time after my family are in bed with the dog next to me on the sofa, listening to music as I do … my ‘Top Songs 2017″ from Spotify, if you must know – the Verve, if you want to be precise.

BORING MYSELF WITLESS

There simply isn’t much more to say for now – there is only the issue of whether we are going to stop talking about things as much and start doing things some more; examine whether we’re doing the right things and actually bringing solutions to problems – or not. That’s not something I can directly influence by blogging the same material over and over again and something as informal as blogging loses impact with repetition, making the same point again and again – so, feeling that I’ve done my bit, I’m going to try a bit less before I bore myself to tears.

I was told today that it looks likely my secondment to the National Police Chiefs’ Council and the College of Policing will be extended again so what I will be able to commit to doing is working my socks off at work, as I always have and on here, I will do something I briefly tried before a few years ago: a monthly update blog. Apart from that, I will probably restrict myself to particularly interesting developments or cases, any new legal issues that emerge and some stuff around the Wessely Review of the Mental Health Act 1983 as it unfolds during 2018.

I suppose you can sum up where I am with this stuff by the flippant sounding truism: “I can explain this to you but I cannot understand it for you.” I think that’s where my head is, although without any problems flippancy. There’s not much I’m ever asked to explain that isn’t covered on here already – so fill your boots with what I’ve already done.

Best wishes,
.

Michael./


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

Winner of the Mind Digital Media Award.


AND / OR

Compare and contrast the following two pieces of law –

  • Section 136(2) says someone removed to a Place of Safety may be taken there to be examined by a registered medical practitioner and interviewed by an Approved Mental Health Professional; and of making any necessary arrangements for his treatment or care.
  • When you read section 135(1), it says someone may be removed to a Place of Safety with a view to the making of an application under the Act, or of making other arrangements for his treatment or care.

The bold is my emphasis – does it matter that the apparent purpose of one of these Place of Safety orders is interview AND arrangements, whereas the other is interview OR arrangements? … is this a distinction without a difference, or could it be crucial to something?! Both seem to represent the purpose of removing someone to a Place of Safety and we often think of 135(1) as being “like s136 but after a court warrant in someone’s own home”, but does this pedantry amount to any kind of distinction that has a real effect?

Since the MHA amendments took effect at the end of last year, it has become possible to use s136 MHA in police custody. For example, if officers have arrested someone for shoplifting and it only becomes apparent that the person may have serious mental health problems after they are detained in custody, the custody sergeant could now take a view on whether to bring the criminal investigation to a halt (temporarily or otherwise), and use s136 in the custody area before removing someone to a Place of Safety. The question has arisen about whether this is lawful IF the person in custody has already been assessed under the MHA is, for example, simply waiting a bed. Does the detaining officer have to have it in their mind at the time of using s136 that both parts of the ‘purpose’, as outlined in s136(2), are required?

THOUGHT THINGS

Imagine a situation in someone’s home where services had assessed them under the MHA and decided that admission was required. If they had entered the premises under a s135(1) warrant, made their decision and then hit a problem that no bed was available, the warrant would allow removal of the person to a Place of Safety, whilst that bed search is carried out – this is “with a view to making an application”. That phrase not being a part of s136 does this change anything?! Maybe … this linguistic precision (or pedantry – depends on your view!) has certainly been deployed before to suggest that once an MHA assessment has occurred, police officers cannot then use s136. I’m not sure it’s as simple as that; so let me show why.

Imagine our assessment in private premises had not involved a s135(1) warrant or the police … an AMHP, two DRs and a CPN had attended a patient’s home without the police where either they have been allowed to enter and an MHA assessment has occurred. The view has been formed that an application will be made and they bump up against the ‘lack of beds’ problem. Let’s imagine an all-too-real development, which I’ve experienced several times: the patient becomes concerned at the prospect of admission and leaves their home, implying or even openly stating they will harm themselves. We then see a 999 call to the police, to report an immediate high risk missing person. Are we seriously saying that if police officers find him, no bed having yet been found or MHA application made, they cannot use s136 MHA to immediately safeguard someone who is at immediate risk because they happen to know an MHA assessment has already occurred?!

Of course, not. Apart from anything else, enough may have changed because of that missing person event to change the necessary outcome from the assessment – it could have been the intention to admit the patient on a voluntary basis, but now it may be necessary to admit them on a compulsory basis.

I realise, obviously, there are differences between my almost-hypothetical missing person and someone in police custody who has been assessed and is awaiting a bed, but each gives rise to the same legal question: is it unlawful to use the power outlined in s136(1) because of the supposed purpose of the section, as outlined in s136(2). If the answer to that is yes, then it is also yes for our hypothetical missing person; if not, then it is still no in custody – it’s the one, or the other.

PACE DETENTION

The difference in reality tends to be, that in the missing person situation, everyone is agreed on the urgency of acting and that takes priority over supposed legal pedantry; in the custody scenario, the person is safely under arrest – so what’s the urgency?

Remember this: there is no power under the Police and Criminal Evidence Act 1984 – and there never, ever has been – to detain someone in police custody pending a Mental Health Act assessment OR pending the identification of a bed, to which a Mental Health Act application may be made. This may well have been what we did for decades, since PACE was created, in fact – but it’s not what the law says, nor has it ever. Whilst someone who is mentally unwell is in custody, s34(2) and s37(7) of PACE continue to apply and once we reach a decision that the original grounds for detention no longer apply, we must make that decision about whether to release a person (pending further enquiries or without further action) OR to charge them with an offence. To the extent that MHA processes may be relevant to determining whether there is sufficient evidence to charge someone, you may countenance all that happening in parallel with an ongoing investigation.

But it has always been true, that if someone in custody who is thought to be unwell reaches the legal positions outlined in s34(2) PACE or s37(7) PACE, then it applies to them and their liberty, notwithstanding their health issues. If this point is reached before MHA assessment has occurred, people seem quite comfortable that the newly amended version of s136 can apply in police custody and I already know this has happened many times around the country since 11th December last year. But discussion about this happened in the north of England this week, after an MHA assessment had occurred and a view was given to the police that they could not, legally, use s136 MHA because the MHA assessment had occurred.

Can that be right? – I’m not sure it is. The grounds for using s136 are those contained within s136(1), subject to the qualification now contained in the new s136(1A). Because apart from anything else, nothing actually prevents a person who has already been assessed being assessed again after being safely detained. You might question the point of that, because it may seem fairly ridiculous to suggest it, but we know that many patients are assessed twice during their admission process, for a variety of reasons and sometimes it’s as simple as the passage of time since the original assessment.

URGENCY ISSUES

But go back to the urgency stuff: where a custody sergeant has quite properly concluded on the basis of evidence and public interest that a person should be released from PACE detention, if they are thought to be very unwell and even a serious risk to themselves, if released, then this just creates a new legal problem: it doesn’t justify excessively or even unlawfully depriving someone of their liberty under PACE when we accept the grounds are exhausted.

Section 136 may be used “if a person appears to a constable to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons” remove that person to a Place of Safety, etc.. Nothing in here at all, or in subsequent sub-sections, which qualifies this, except that s136(1A) provides the power under s136(1) can only be used in any place which is not a “house, flat or room where the person, or another person, is living; or any yard, garden, garage or outhouse” connected to it.

I think we’ll learn more about how this new aspect of s136 is going to be relied upon increasingly to get mentally unwell people out of police custody, even though they may not have been brought in under s136 in the first place. This will create problems some people haven’t thought much about yet and whether the NHS has capacity to handle this, we’re still not clear. But we should remember, if we check Hansard, that the purpose of the amendments overall is to reduce the number of people going to or staying in police custody when they are mentally ill. What appears to be an unintended consequence of the reform, helps take us further down that route than ever before, but we’ll need the understanding, the infrastructure and so on to cope with it.


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

Winner of the Mind Digital Media Award.