The BBC used Freedom of Information laws to secure access to a 2018 report by the Cabinet Office Implementation Unit about unlawful detention in police custody, for those of us who are deemed to require hospital admission under the Mental Health Act 1983.
The report estimates that between 3,900 and 4,500 people were then unlawfully detained in police custody in a year because of delays in accessing a mental health bed. As you read on, please remember three kinds of situation which can lead to hospital admission under the MHA and which we’ll come back to at the end —
- MHA assessment and hospital admission after arrest is just one route to hopsital care – and its not even the most common route (scenario 1). << This is what the Cabinet Office report is about.
- Some of us are assessed in a Place of Safety under the MHA after being detained by officers under s135/136 MHA (scenario 2). << This is what the Cabinet Office report is *not* about!
- Some people are assessed by mental health professionals when subject to no legal restriction by the police at all – in fact, this is the most common situation (scenario 3). << Again, the report is *not* about this.
The BBC article being about situation 1, not situations 2 or 3, it means what we’re hearing about in response to today’s BBC coverage is confused for reasons I can neither explain nor understand. The legal background to all three of these things may seem a little complicated but grappling with just some of it will help us understand why the reaction to the report is what it is. I make no judgement about the confusion in reaction, I’m just saying it’s very incorrect and it doesn’t address what the Cabinet Office were actually examining. Final opening point: it should be borne in mind that reference to this specific legal problem is within Sir Simon Wessely’s Mental Health Act Review (2018) and the review of the whole MHA was published after the Cabinet Office work.
BACKGROUND
When someone is arrested for an alleged criminal offence, they are removed to custody by officers who have 24hrs to make legal decisions about whether to charge someone with a crime and detention in custody can only continue subject to laws outlined in the Police and Criminal Evidence Act 1984 (PACE). This mandates that ongoing detention can only be predicated upon investigative considerations about the offence – detention after may not occur or continue, just because the police or any others have concerns about someone’s mental health. Whilst someone is detained under investigation, healthcare professionals can be requested to undertake medical or mental health assessment of anyone thought vulnerable, but the legal basis for their liberty being temporarily removed is always going to remain the investigation itself. Section 34 of PACE demands someone’s release if the original, evidential basis for detention ceases to apply and if that creates a mental health related safeguarding situation, other ways to ensure safeguarding must be identified.
Where someone under arrest is thought to require admission to hospital under the MHA, they may remain in police custody only where that ongoing investigation justifies it. If the investigation does not, then the law says the person must be released from PACE detention, either with or without bail. The person can only be further detained by the police if the Approved Mental Health Professional has made a written application to a hospital for that patients admission under the MHA. If, for whatever reason, the AMHP has not done that, the law says the person must be released because the investigation no longer requires them to remain under arrest.
This is where the unlawful detention thing occurs: we know from court cases that there are sometimes very real concerns that if someone is simply released from custody when they require admission amidst a difficulty identifying a bed, there could be a serious untoward event and immediately the question will be asked why someone was released. In the MS v UK court case, a man was deemed to need admission after use of s136 MHA (scenario 2, above) and dispute over the kind of bed required meant he spent over 3 days in police custody and he successful argued an Article 3 ECHR violation. We’ll also come back to the ECHR later.
BEDS
The MHA requires AMHPs to make applications to a named hospital – unless and until that application is made, patients cannot be detained pending the bed being found unless they are under arrest (scenario 1) or detained previously under ss135/136 (scenario 2). This is why we have seen scenario 3 cases which end before admission can be organised. In Leicestershire in 2017, David Stacey was assessed under the MHA in his own home in a situation where he had committed no offence so could not be arrested (scenario 1) and because he was in his own home, could not be detained under s136 (scenario 2). MH services did not / could not apply for a warrant under s135(1) so he could not be removed from his home to a Place of Safety pending a MHA assessment. He was left along at home by the team who assessed him under the MHA and died in a road collision before the bed could be found and the admission organised.
Back to custody matters … it was immediately suggested that the extent of the problem highlighted in the 2018 Cabinet Office report is no longer valid because shortly prior to the report, the law was changed and police forces would far more often use s136 MHA at the point where an unlawful situation was about to occur. This would then allow officers to move the person from being under arrest for an offence to being detained MHA in a Place of Safety, pending the bed being found – effectively, switching someone from scenario 1 to scenario 2. We do know this happens and it will mean some of the scenario 1 unlawful situations do not become unlawful at all, or at least now as quickly.
We know, however, that some bed searches take many days, sometimes weeks to be resolved so it’s unthinkable to suggest the s136 law reform has fixed this. Don’t forget one more point: s136 is a power to detain someone in order to keep them safe and assess their needs and some have pointed out that scenario involves people who have usually been assessed already under the the MHA – usually the only outstanding question is the availability of a bed. Why detain someone for MH assessment who had a MHA assessment only hours earlier and when nothing else has changed?! It shows us that use of s136 is essentially just a fudge to get beyond the main problem that AMHPs are unable to comply with s13 MHA because the NHS cannot offer up a bed in a timely way.
SECTIONS 13 & 140
These are the underlying issues – they remain at play whilst we’re all distracted by discussion about use of s13 and remain almost entirely undiscussed and unresolved. When an AMHP and doctors assess someone under the MHA in a statutory assessment and decide admission is required, real laws govern that process and also what must happen after the assessment. Section 13 MHA states once the criteria for admission are satisfied, the AMHP “shall make the application”. Shall – not should. In order to ensure that AMHPs are able to do so in a timely way, section 140 MHA imposes a legal duty on NHS Clinical Commissiong Group (CCGs) to specify those hospitals in the area which are designated to receive patients in urgent circumstances – I have written about both provisions before and the hyperlinks just provided go in to detail, if you want more. Suffice to say, there is ongoing evidence that CCGs simply do not do this and that AMHPs often find the NHS unable to offer a bed in a timely way for any of these scenarios.
Of course, politics and funding play in to this – our NHS can only do a certain amount within a budget and we know that beds have been cut by 25% since 2010 whilst the number of people under the care of secondary MH services has risen enormously. I always have just two brief things to say about this. Firstly, its not the whole explanation for why there are difficulties – the NHS itself has reduced the proportions of its budget spent on MH care over the last 10yrs and these kinds of legal difficulties (all three scenarios) were problems way before 2010.
So when you’re reading that the extent of this problem has reduced because the police can use s136 MHA in custody remember this:
- The police only have to consider s136 in the first place because of the inability of the wider system to ensure AMHPs can comply with s13 when it becomes engaged;
- That inability, in fairness to our AMHP colleagues, is partly due to s140 MHA being something more honoured in the breach than the observance (s140 and the lack of an available bed has been mentioned in a number of inquests and in CQC reports).
- In one instance, guidance was published in November 2019 about the application of s140 MHA and it was mysteriously withdrawn from the internet only hours later – I secured a copy before it was taken down, but that’s for another day.
- To the extent that s136 in custody has helped, it only kicks the can down the road for 24hrs and we know that many scenario 1 detentions just become scenario 2 unlawful detentions a day later – some patients have been detained in a Place of Safety for weeks (literally), under laws that some mental health trusts were simply not prepared to explain.
- No doubt: 24hrs is sufficient can kicking to mean some beds are found within that time – it will reduce the number of unlawful detentions after a PACE arrest but it simply shouldn’t be necessary in the first place and it really doesn’t fix the underlying problem.
UNDERSTANDING THE ISSUES
Custody sergeants and inspectors were on social media today saying this sort of thing is still a “daily occurrence” and one of my recent working days ended with custody making a request for officers to attend and transfer someone under s136 to a Place of Safety for exactly this reason. I have no good argument to insist those custody officers are wrong – I see this for myself from time to time.
Finally, I have to note that some of the sources quoted by the BBC don’t seem to understand the issue. The un-named Government spokesperson states ”police stations should not be used as a Place of Safety for adults and cannot be used for children”. NHSE also thought the story was about how often police stations were used as Place of Safety and the Association of Police and Crime Commissioners response was all about s136 and Places of Safety. The legal concept of a “Place of Safety” is simply not relevant to the scenario 1 being highlighted! To think it was is to profoundly misunderstand and such responses are reactions to a question question that simply wasn’t asked and to a problem that wasn’t highlighted. Unfortunately, it’s a response we’ve seen widely – you’ll have to decide for yourself why the actual issue hasn’t been grasped or why it’s potentially being ignored.
I’m not sure where this leaves us … even after a Cabinet Office report based on a dip-sample of 7 forces chosen to be representative of England, we still see resistance to what is being seen by police officers daily and who are seeking to ensure the safety, the dignity and rights of vulnerable people who have been deemed to need hospital admission. Section 6 of the Human Rights Act 1998 provides that it is unlawful for any public authority to fail to ensure someone’s Convention rights and every time this sort of thing happens, it begins to engage one or more of articles 2, 3, 5 and 8, in various kinds of ways — I’m not sure what more can reasonably be done or said to evidence a real problem that should require attention from anyone who holds legal responsibilities on these matters.
But first, we’d need to actually understand what those matters are and what was being discussed and evidenced by this report. It’s obvious from reaction to this BBC news coverage that we simply didn’t.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2022
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 – www.legislation.gov.uk
Mental Health Cop 