I’ve just read one of the weirdest High Court judgments I’ve ever read and it raises a point of law about the detention in police custody of someone who was originally arrested for an offence, but is mentally ill to such a degree they require admission to hospital under s2 of the Mental Health Act 1983 (MHA). As you read through the post, keep in mind the events in question took place in March 2016, before the law was changed on the use of police stations as a Place of Safety under the MHA. The judgment itself is quite long and a lot of it is taken up with legally rationalising why things not relevant to civil jury trials are dismissed on appeal, so I’ll start off by summarising the police / mental health specific points, to save you the long read!
You’re welcome.
On 08th March 2016, Victoria Clark was assessed under the MHA by two psychiatrists and deemed to require admission to hospital under s2 MHA and the doctors provided written medical recommendations for that purpose. She was however, sent home because there were no inpatient beds available and on 12th March, she was seriously mentally unwell at home and an incident occurred where she assaulted her mother and then attempted to harm herself, leading to the police being called. She was arrested for the alleged assault and taken to a police station – in case anyone is wondering, the police cannot detain someone under the Mental Health Act 1983 in a private dwelling (either then or now) so arresting for the offence in order to protect her and others, was the only viable option open to the officers who attended.
Upon arrival in custody, she was displaying some extremely challenging behaviours and there was concern about her mental health in addition to questions about whether she was under the influence of drugs or alcohol. She was taken to a cell and her clothing removed from her, during which time it was further alleged she assaulted a Detention Officer, firstly by biting her and then be grabbing her ankle. Force was used to stop the biting and to release the grip on the DO’s ankle. She was then held in custody overnight and on 13th March, she was “sectioned” by an Approved Mental Health Professional at around 5pm and admitted to a psychiatric intensive care unit.
CIVIL CLAIM
Victoria Clark subsequently brought a civil claim against the Chief Constable of Merseyside Police, alleging a number of things. There was then a civil trial with a jury who heard the various claims and long story made short, none of them succeeded. The High Court then heard an appeal against that finding, albeit on just a few of the claims. It was alleged (in summary) —
- The use of force on Victoria in police custody was unlawful per se; and that if it weren’t it was excessive – and this focussed mainly, but not only, on the use of force by the DO who was bitten and grabbed.
- It was then alleged two reviews of detention by the night shift inspector on 12th March and the early shift inspector on 13th March amounted to unlawful detention.
For those who are unfamiliar with police custody procedures: where someone has been arrested for an offence and detained at a police station, the authority of the custody sergeant to detain lasts for just 6hrs in the first instance. Prior to that, an officer at the rank of inspector must review the detention and make further decisions about necessity. Every time an inspector grants further authority to detain the person, it gives a further 9hrs of detention time from the point where the review was conducted. When making the decision to detain, the sergeant and all the subsequent inspectors are addressing the same questions —
- Is there sufficient evidence to charge with the offence for which the person was arrested?
- If so – you must charge the person and decide whether they are granted bail to appear at court, or denied bail to appear at the next hearing.
- If not – you must decide whether detention in the police station remains necessary to secure and preserve evidence for the offence and / or to obtain evidence by questioning the person.
- If you believe it is necessary, you can authorise the further 9hrs of detention and if not, you must release the person, with or without bail.
APPEAL CLAIM
Victoria Clark’s appeal to the High Court is more complicated than the summary I’m giving here, so feel free to read the judgment if you really want detail. But my summary is that her appears about excessive force was dismissed; and in her appeal about the two reviews of detention, one of them succeeded – the one completed by the early shift inspector at 0959hrs on 13th March 2016. The court held that the night shift inspector, who had seen her disturbed behaviour on arrival and who did not know about the previous recommendations that she be “sectioned” was quite entitled to take the view that a period of rest overnight may see the situation calm down and she may reach a point where she could be interviewed about the alleged assaults on her mother and the detention officer. The inspector also authorised a drugs test, to her understand why her behaviour may have been as it was.
However, the early shift inspector had more information available and the High Court took a different view of the second review. By 0959hrs, a mental health professional in custody had seem Victoria and established that she’d been recommended for admission on 08th March, a request was put in for an Approved Mental Health Professional (AMHP) to consider the case and potentially finalise that admission. It was also known by then, her behaviour had not, if you like, calmed down by the morning and she was still presenting in a way that would make an interview about the allegations quite unrealistic. For these reasons, the High Court ruled that the inspector’s decision to authorise detention “to secure and preserve evidence and obtain evidence by questioning” was unreasonable, irrational and not lawful.
This is where it gets weird, for me.
OTHER ISSUES
There were other reasons I found this judgment weird to read —
- Early on (paragraph 6), the judgment refers to the Mental Health Act 2003 – I can only say, “Eh?!” … what Mental Health Act 2003.
- It subsequently refers to the AMHP as an “approved mental health practitioner” – I can instantly name AMHPs I know well who will be crawling the walls at this inaccuracy.
- The ‘P’ is for ‘professional’ – now you may wonder if this is a petty observation, that it doesn’t really matter because we do know that AMHPs themselves have made this mistake.
- However, at paragraph 30, the judgment tells us that AMHP “only completes the paperwork” if the doctors have concluded the detainee needs to be admitted – this seems to misunderstand the role of the AMHP because they don’t just do the doctors’ admin.
- The AMHP coordinates the MHA assessment and is the ultimate decision maker about admission. They are perfectly at liberty in law to decide against “completing the paperwork” and to decide on another course of action.
- Depending on facts and circumstances, this could involve sending a patient home or discussing with the police whether immediate prosecution for the alleged offences is appropriate.
- By coincidence, I was having a conversation only yesterday about something else entirely where someone wondered why the police / CPS would immediately prosecute a person who had been recommended for s2 MHA admission.
- The answer in the case was, “because this offence alleged is more serious and it implied ongoing risk to people that needed mitigating” – AMHPs absolutely can be a part of discussion where an offence is serious enough to justify it to ensure good communication about whether the MH or CJ system is the way to go.
- They are most certainly are not there “only to complete the paperwork”.
But it is the stuff about common law detention that has already caused questions on mental health law forums I read and use. The court ruled the second inspector’s review was unlawful because it was “irrational” to suggest detention was necessary to secure evidence and obtain evidence by questioning and that the police had a common law power to keep the person detained until they could be transferred for treatment.
COMMON LAW
“There was a raft of submissions from the Defendant about the right of the police to detain the Claimant under the common law for her protection and for the protection of the public if I were to find that the actual reason for detention, under the PACE 1984 and the Code, was unlawful, as I have. It was submitted that even if the wrong reason had been given by Inspector Forsyth, because the common law power existed the arrest would have been lawful in any event. I asked both counsel for written submissions to be delivered the day after the end of the appeal hearing on this because I was unclear about the authority for that submission.” (Para 64.)
So the police argued that ‘common law’ would have justified ongoing detention but didn’t give the legal authorities for that claim, hence the judge asked for written submissions because he admitted he was ‘unclear about the authority for that submission’. He goes on in paragraph 65 to state —
“(1) The Claimant needed to be kept in a place of safety and the police were entitled to detain her under their common law powers. (2) There was no evidence that the police could have obtained any faster authorisation for her to be transferred to the Priory. (3) The Claimant was unaware of the reason for her detention, she was detached from reality. (4) No medical or psychiatric evidence was proffered or called to support any additional suffering by the Claimant from the wrong power being used to detain her until she was transferred to a mental treatment establishment. (5) It was right and correct to detain the Claimant until she was transferred for treatment and would have been dangerous to her and others if the police had released her.”
So having said in paragraph 64 that he was unclear about the common law power available, the judge goes on to state “the police were entitled to detain her under their common law powers”, without specifying what they were! No mention of the relevant case law and no qualification to this power. It should be born in mind, at 0959hrs on 13th March, the claimant was under arrest for an assault, it was known two medical recommendation had been provided five days earlier and no AMHP had yet attended to complete the MHA assessment (this occurred somewhere between 2pm and 3pm). An AMHP in such a situation may decide not to apply for admission or could again face the situation faced on 08th May – no bed.
Yet the judge is stating it is lawful under common law (unspecified) to hold someone at a “place of safety”, despite the fact that the police station was not functioning at that time as Place of Safety under the MHA (because Victoria was under arrest, not detained under s136 MHA).
QUESTIONS AND ANSWERS
I will admit, I’m more confused now than I was before I read this judgment and it begs more questions than it answers, for me. Amongst them are —
- Most importantly, what is this common law power and what is the case law on it? – I’m amazed that is not specific in a judgment which admits the judge was unclear.
- For how long does this common law power last? – in this case, the AMHP attended no earlier than 2pm and Victoria transferred out at 5pm. Even for 2016, that’s amazingly quick – some PICU bed searches last many days so is the judge saying “common law” can be relied upon for whatever period is involved or is it time limited?!
- Bearing in mind the law on police stations as Place of Safety has now changed, no mention is made of this and it severely restricts the ability of the police station to be used in such a way so whilst accepting the judge is ruling on 2016 events according to 2016 law, I was wondering about whether a caveat was needed about applicability of this to 2023 and beyond.
Genuinely, a weird one — I hate to think how ruling may be cited in future to justify or encourage ongoing detention of a vulnerable person in the cells until beds are found. It’s precisely the place vulnerable people should not be, for a range of reasons. In these situations, once an MHA application has been made (which it hadn’t, when the inspector conducted the second review), I’d be left thinking the detainee should be released and if doing so was considered “dangersouly to her and others” (para 65), then the grounds under s136 MHA would be met to justify removing the person to an actual Place of Safety under the MHA.
Just my view – discuss!
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2023
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
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