Do you fancy some light reading for the weekend? – I have a little 944 page report for you, that should keep you out of trouble and give you a load of excuses for procrastination or avoidance of domestic chores!
Scotland has produced the first significant review of Mental Health and Capacity law for around 30yrs and its scope is impressive. The Scottish Mental Health Law Review was chaired by John Scott KC, now a Scottish judge and it involved a number of specialists on the Executive Team of the review. I will freely admit, I haven’t (yet!) read all 944 pages because I only have 30yrs left to live if we work to average expectancy (and we should never forget only half of us will make it to the average!) … so as I usually do with big reports, I first skim-read the contents and the summary then searched the document for key terms. ‘Police’ was obviously the first I tried and it reveals a part of the review focussed upon section 297 of the Mental Health (Care & Treatment)(Scotland) Act 2003. This is the equivalent Scottish provision to s136 of the (English and Welsh) Mental Health Act 1983 or article 130 of the (Northern Irish) Mental Health Order 1986 — the wording of all three provisions is remarkably similar.
This post is therefore purely about the detailed commentary on s297 for its potential to help us to think more deeply about police powers under mental health laws, now the Scots have undertaken a lot of work and consultation. Feel free to read the report if you want to see more on other aspects of the Scottish MH Act or the Adults with Incapacity (Scotland) Act 2000 (equivalent of the (English and Welsh) Mental Capacity Act 2005 – Northern Ireland’s Mental Capacity Act 2016 is yet to commence, six years after Royal Assent).
SECTION 297
The Mental Welfare Commission have a statutory role in Scotland to oversee the operation of the Act and they have published material on s297 in the recent years. The Act states —
Removal from a Public Place
”Where a constable reasonably suspects that a person (referred to in this section and in section 298 of this Act as a “relevant person”) who is in a public place has a mental disorder; and that the relevant person is in immediate need of care or treatment; and the constable considers that it would be in the interests of the relevant person, or necessary for the protection of any other person, to remove the relevant person to a place of safety, the constable may remove the relevant person to a place of safety.”
Detention in the place of safety can last up to 24hrs during which time there is a need for the person to be examined / interviewed by a doctor and a Mental Health Officer (roughly, the Scottish equivalent of an Approved Mental Health Professional in England / Wales, or Approved Social Worker in Northern Ireland). The review has obviously considered the purpose and the practicalities involved in the demands police officers face, their role as an emergency service and the way in which this power can best fit in to that. It covers s297 between pages 374-381 but states in particular —
“We set out in this Report our view that the justification for any compulsory powers should be less on a paritcular diagnoses and more on ensuring that they are justified in human rights terms and on a non-discriminatory basis. We think it is reasonable for the state to intervene for a short period where there is evidence that a person may be unable to protect themselves from severe harm because of acute distress – provided it does so in a way which protects and promotes the person’s human rights overall.”
The report recommends (for several legal situations, not just s297) an “Autonomous decision making test” (see chapter 6) and it includes in its view that s297 should be considered in this light. This, at least in part, is because of the review’s aim to suggest how Scots’ Law can best discharged the UK’s obligations from the UN Convention on the Rights of Persons with Disabilities (CRPD) which essentially commits to minimising state decision-making for disabled people, where possible.
DIAGNOSIS
Given the review raising the question of diagnosis, which is not required when police in any UK jurisdiction are considering these emergency detention powers, it was interesting to note the raised the issue of alcohol (p378) and noted a distinction between people who were “‘only’ intoxicated” distinct from “someone who has other underlying issues”.
The review also considered, I was delighted to read, the issue of police intervention in private premises (p377), noting that s297 does not extend to dwellings (also in keeping with s136 and a130). The review notes that a lot of police demand occurs in private premises and involves considerable risk and complexity. This is something that was considered in the UK government review of police powers which led to the Police and Crime Act 2017 and again in the Mental Health Act review (2018). Ultimately, the Review was not convinced that legislative reform was required, something also echoed by the police and other services who were consulted during the review, but this begs the question about what should happen with acknowledged difficulties in police officers being called to private premises where lack legal powers to act. It’s noted here that it often leads to police officers using powers under criminal law, which is non-ideal for other, more obvious reasons.
What remains from the report, however is the question of what is to be done. It points out, as was found in England / Wales as well, that police don’t want powers extending to private premises, because they recognise they are not the best organisation to deal with people in mental health emergencies, potentially aggravating situations where they are present. Instead, the review emphasises the police view that necessary support for vulnerable people (and support for police officers facing difficult mental health situations) should be timely from those organisations and professionals best placed to offer that support.
JOINT PROTOCOLS
The review has various conclusions about the operation of section 297 as well as the operation of sections 292/3 and 303 which also relate to police powers – these provisions relate to Sheriffs’ warrants to enter premises and remove patients (similar to s135 in England / Wales and a129 in Northern Ireland); and to returning patients who have absconded (similar to s18 in England / Wales and a29 in Northern Ireland): the review highlights the importance of joint protocols and of inter-agency cooperation.
There area few things to note about this.
The first of them, is that it’s the obvious instinct – instead of relying upon the police or leaving officers in difficult, potentially unresolvable situations with vulnerable people, let’s make sure they are supported by professionals. This is highly intuitive stuff, but the problem is that’s what should have been happening throughout modern history, since we deinstitutionalised mental health care to the degree we did. Policing’s role around mental health as expanded for a number of reasons, but amongst them sit the inaccessibility or non-availability of timely community mental health care.
The second, more important point is less obvious and a little counter-intuitive – inter-agency protocols are far from being the obvious solution they are presumed and portrayed to be. Non-statutory in nature, they usually represent a service level agreement on cooperation between agencies and various inquests in England / Wales have been replete with examples of where joint protocols are absent, inadequate or simply not well understood by the workforce. In fairness to this legal review in Scotland, it recommends that Scottish Psychiatric Emergency Plans are reviewed every 2yrs – this would go some way to making sure the local protocols within remain up to date and valid, but of itself, that doesn’t mean that all nurses, police officers and Mental Health Officers will know their contents and have access to the resources which would bring those protocols and plans to life in complex situations.
HISTORY AGAIN
This review is welcome and impressive: I will certainly try to read more of it when time allows. On the policing issues, however, it is ultimately just re-emphasising the need for progress that we all agree is required, but which history shows is rarely made when it was previous called for and those with an eye to history might wonder about the notion of doing the same thing again whilst expecting a different outcome.
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 