“Most custody suites are the last resort as a place of safety but are often utilised because most NHS facilities, certainly over the years, have been pared back and pared back.”
Is this correct? – well, no, it’s not. Not really … so let’s look at the law and the statistics which have bearing on it.
LAW
Several years ago, this statement was more-or-less correct in law and the term “last resort” was used in the 1999 Mental Health Act Code of Practice. I’d actually go a little further in some respects and say most custody suites were used in the past as the first resort, hence there was perception of a serious problem which eventually led to the law being revised. Prior to 2008, there were very few health-based Places of Safety outside London so in many police force areas, almost everyone went to custody unless they needed an Emergency Department for reasons connected to injury or acute illness. After 2008, however, many forces worked hard on this issue and over the subsequent five or six years, many new services started operating and reliance on police custody began to drop.
And then in 2017, the law changed (and it is proposed to change again, but that remains before Parliament) —
Since December 2017, a police station can only be used as a Place of Safety for adults and even then, only where specific criteria were met which are laid down in statutory regulations. There was a complete legal ban on the use of police stations for children and the criteria for adults are every tightly drawn (and I’m summarising the wording here – see the last link for full detail) —
- imminent risk of serious injury or death; and
- nowhere else available that could manage; and
- authorised by a police inspector.
If a police force believed as I do, that use of custody could never be justified, they could issue a policy directive to all police inspectors suggesting they decline to authorise use of a police station on the basis anyone satisfying the first two grounds could well be someone experiencing a medical emergency and they should be removed to an Emergency Department (ED). My own view of those two criteria when I first read them, was that they permitted only those who are least suitable for police custody to be taken there and that it pretty much describes all death-in-custody situations from the last twenty or thirty years. Someone presenting in such a way could very easily be experiencing an acute behavioural disturbance and if prolonged restraint has been required during detention or transport, then NHS guidelines issued after a patient safety alert anyway suggest clinical monitoring will be required for several hours, even after restraint has ended.
The substantive point here however, is that custody cannot by law just be used “as a last resort” – this has been true now for almost 6-years. ED is now the last resort, unfortunately.
STATISTICS
Also, in terms of reliance upon the use of custody, the numbers don’t really support the claim either. As far back as 2008, the IPCC found roughly 66% of those of us detained under s136 Mental Health Act 1983 were removed to police custody. In the better-quality statistics now published by the Home Office each year, the figures are more like 0.72% of those of us detained. In the majority of cases, police stations were used as Place of Safety, not because of the statutory criteria being met, but because the person concerned was (also?) arrested for a substantive offence – so if you forget those cases (and most of them were in just one police force anyway), custody was used as a Place of Safety just 0.55% of the time, most usually because the statutory criteria were thought to be satisfied.
During the time the proportion of of s136 detainees has reduced from 65% to 0.72%, the number of people detained under the power has massively increased – in fact, it’s roughly doubled in fifteen years. As 27.2% of s136 detainees are taken to an Emergency Department (for whatever reason that may be), this means over 70% of people are taken to a mental health unit, totalling over 25,000 people, well up on the roughly 6,000 figure given by the IPCC in 2008. ED is the last resort because it is the only building open 24/7 where there is no legal barrier to its use – this is very far from ideal, to say the last of it, as the Royal College of Emergency Medicine quite rightly emphasise.
A lot is wrong with systems, processes and training around police use of s136 MHA and the police end up in Emergency Departments far too often with people who really just need access to a health-based Place of Safety, for example in a mental health unit. The power is over-used and under-used, it is misused and misunderstood all at the same time and many areas are still deficient of proper joint protocols by which to ensure processes are governed and agreed. But what seems clear from the law and available statistics, is custody suites are not and can not be used as a “last resort” place of safety, because it’s legally prohibited and the statistics show this is largely respected. It’s also clear the NHS mental health system is now absorbing over four times as many people as it was fifteen years ago – however non-ideally by over reliance upon Emergency Departments – and they are doing this as use of the power has doubled during that time and whilst operating a 20% vacancy rate for mental health nurses and receiving a smaller portion of the NHS funding cake than they were fifteen years ago.
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
Mental Health Cop 