The Inherent Jurisdiction

A very interesting new (and mercifully short!) judgment has been issued by the High Court after a debacle in police custody of the kind I’ve been writing about for well over a decade.  If you’re professionally involved in these matters, I do recommend reading all nine pages of the ruling, but I’ll summarise it here to get you going or if you don’t need the detail.  I’m not sure what this ruling is really telling us, ultimately – if anything.  It’s certainly telling us the courts are open 24/7 and they are positioned to intervene in difficult situations where systems are failing and perhaps that’s enough?

However, it doesn’t seem to be giving answers to the various conflicting legal opinions being offered up about issues I’ll highlight below … but then again, it is reminding us of the importance of Approved Mental Health Professional (AMHP) and local authorities in conducting or preparing to conduct assessments under the Mental Health Act 1983 (MHA), including putting the rights and wellbeing of those detained by the police in legally uncertain circumstances high on their list of priorities.

The legal nugget to think about as you read is something I’ve not covered on this blog, known as the ‘inherent jurisdiction‘ of the High Court.  This means, the scope the High Court has to intervene or control the issues which are playing out in a situation brought before it and this situation in Surrey was a mess, albeit a mess which, broadly speaking, plays out across England at least 3,900-4,500 times a year, as of 2018 (so the numbers may well be even worse now).

TIMELINE

Firstly of all, however: we need to know what happened.

• 23rd April 2023
• A vulnerable man – known throughout as “PC” – was arrested for criminal damage in the mid-to-late morning, the circumstances of which are not described at all in this judgment.
• The arresting officer had concerns about the suspect’s mental health and had considered whether he should be removed to hospital under (section 136 of) the MHA.
• An ambulance was called to the location but delay led to officers transporting PC to an Emergency Department in a hospital operated by the Surrey and Sussex Healthcare Trust – this is an ‘acute’ NHS trust, not one operating mental health services.
• At 1022hrs and 1047hrs, PC was given a dose of lorazepam and assessed by a psychiatric liaison team at the acute trust – he was described as “agitated, aggressive, shouting and swearing, flushed“.
• He was then declared medically fit for discharge from the Emergency Department, something about which the police raised concerns but it was argued by the NHS trust the correct ‘pathway’ for people under arrest was t o be see by the Criminal Justice Liaison and Diversion Service (L&D) in police custody.
• PC arrived in custody just after noon on 23rd April and spent the afternoon sleeping in his allocated cell – no further details are given about what occurred on 23rd April – no mention of L&D services for example, operated by the mental health trust, Surrey and Borders Partnership Trust.
• For the rest of this timeline “the trust” means the mental health trust, not the acute trust ED which played no further role.

• 24th April 2023
• PC was seen by L&D during the morning and an AMHP was contacted as it was argued PC was not fit to be assessed.
• The AMHP did not arrange a MHA assessment and suggested PC be kept in the police station as a Place of Safety under s136 MHA – it’s at this point in the judgment I started to speak out loud to myself whilst reading it.  Mainly, I was using the word “No!”
• Dispute had been about whether PC was intoxicated – although this was claimed by the local authority, it was disputed by everyone else involved and an important critique in this ruling is the AMHP did not satisfy themselves of that by seeing PC personally.
• PC was detained s136 MHA at 1044hrs and the judgment makes no mention at that point of the 2017 statutory Regulations for keeping someone in custody – we’ll come back to this point later.
• The police informed the trust the suspect’s detention timescale under the Police and Criminal Evidence Act 1984 would expire shortly after midday on the 24th April – PC could not be immediately transferred to a health-based Place of Safety because none appeared available.
• The judgment stated (paragraph 8) that after 1230hrs there would be “no legal framework to hold PC”, which I found curious if they had instigated use of s136 MHA at 1044hrs 24th April … hold that thought as well.
• The police continued to document their concerns about him remaining in a police cell, including that he was florid, delusional and “clearly having a mental health crisis”.
• At 2pm – after the point at which the police claimed to lack legal authority to detain but less than 4hrs after the use of s136 MHA – there was a meeting between the agencies where different accounts were given to the court.  However, it included the custody nurse continuing to make concerns known and the local authority (AMHP service) stated they had not been told PC was able to be assessed under the MHA.
• 7pm, an AMHP and two psychiatrists arrived in custody and both doctors stated PC could be detained under s2 MHA … but there was no bed, so the AMHP could not make an application for admission – the police continue to voice concerns about legalities and PC remained in the cell, around 30hrs after having arrived there.
• by 10pm, the trust informed the police there was no bed available for the “foreseeable future” and there would be a review the next morning.
• The police requested support for PC in custody and certain steps were taken to arrange to administer more lorazepam.

• 25th April 2023
• PC’s condition deteriorated further overnight. He was described as ‘out of control’ and was restrained by several police officers and a custody nurse gave that medication without consent.
• Several people will be wondering under what law – hold that though, as well.
• In paragraph 16, a custody sergeant is quoted as having documented PC’s detentions as “lawful and the only reasonable place for him to be held until the appropriate services facilitate their duty of care” – this is around 20hrs after use of s136 and after an overall period of 42hrs in police custody.
• Paragraph 17 outlines how further conversations took place during the morning between the police and the trust and a second, further period of s136 MHA was implemented.
• Of course, you can’t just impose a second period of detention because the first one has expired – that was the whole point behind Parliament reducing the 136 period of detention from 72hrs prior to 2017, to 24hrs thereafter – nevertheless, that’s what happened.
• There was dispute as to whether Trust managers had claimed at one point to tell the police they could rely on “the common law doctrine of necessity” … an AMHP apparently said a second period of s136 would be lawful, as did a police legal adviser, notwithstanding that it’s not “good practice”.
• It was at this point discussion began about a court hearing.
• The police made an urgent, out-of-hours application to the High Court to authorise deprivation of PC’s liberty in police custody, due to their concern that a second period under s136 would expire later that evening.
• You’re not the only one who is confused – if the first 136 began at 1044hrs on 24th April, I was presuming a second period would be considered to start at 1044hrs on 25th April, so it would run until 1044hrs on 26th?! … I can’t untangle that for you any further, I’m afraid.
• The High Court made certain immediate directions (see below) and listed the matter to be further considered on the morning of the 26th April.

• 26th April 2023
• The situation overtook itself by the identification of a bed and a s2 MHA application was completed at 0148hrs on 26th April and PC was admitted.

OFFICIAL SOLICITOR

Whenever proceedings are initiated in respect of a vulnerable person like PC, whether in the High Court or the Court of Protection, there is a role to be played by the Official Solicitor, to act in someone’s best interests if they cannot instruct their own counsel or represent themselves. One of the main takeaways from this judgment is the late involvement of the official solicitor.

The ruling makes mention of a “lack of urgency or significant concern” amongst the agencies, notwithstanding the very limited circumstances outlined in the 2017 Regulations about when police custody can be used as a Place of Safety for an adult. No reference is made within any of this ruling, for example, about whether a police inspector authorised the 136 detentions against the other two criteria that must be satisfied –

• Imminent risk of serious injury or death (and why on  would anyone detained someone in custody if we thought that was a possible outcome)

• No Place of Safety which can safely manage the person, which appears to have been the situation throughout – but both criteria must be satisfied.

Paragraphs 21-28 list a range of concerns voiced to the High Court by the Official Solicitor, once instructed. They will be of particular interest to AMHPs, I would suggest, as much of it rests on what the AMHP(s) did or didn’t do in this case and flagging the importance of Article 5 ECHR (the right to liberty). Of course, Art 5(1) ECHR guarantees no-one will be deprived of their liberty except in accordance with procedure prescribed by law – and much of this situation was a law free zone, notwithstanding what was being claimed.

Paragraph 29 is lengthy, but it sets out what the Official Solicitor had argued was a correct and fair process for dealing with situations which may need to come before the High Court or Court of Protection, as this case did.  The High Court judge endorses the Official Solicitor’s submission so it’s worth managers in local authorities and mental health trusts being familiar with these expectations. Not un-useful for police leads on this topic to be familiar.

The Official Solicitor offered criticism to the court of the local authority AMHP. The decision to defer MHA assessment without seeing the patient, the decision being influence by a lack of a bed, caused delay and some of those decisions occurred when PC had already been in custody for well over a day.  There was a big argument about costs in this case, not least about the costs for the Official Solicitor who had to instruct counsel out-of-hours.  Long story made short, the local authority was found liable for those costs for reasons set out in paragraph 39 – they were the more experienced agency, they should have taken a more proactive role in ensuring PC’s ECHR rights and compliance with relevant legislation.

“In the end, the police had little choice but to make the application because of the situation they found themselves in.” – Mrs Justice Theis DBE

SOME THOUGHTS

There are various things not explicit in the judgment which I’d have love to have seen in black and white so various zombie facts can be laid to rest.  An AMHP and a police legal adviser both gave views during this debacle that back-to-back periods of s136 detention were lawful – it’s not, but it would have been great to see that written down so it can be quoted in situations like this.

No mention at all was made of local authority duties under s13 MHA or the Integrated Care Board’s responsibility under s140 MHA to nominate hospitals which can receive patients in circumstances of special urgency – as an aside, there was an article(£) in last weekend’s Sunday Times about exactly this, Shaun Lintern reporting on links between the failures of urgent bed provision to hundreds of deaths across England and Wales. One might imagine the police in this case attempting to get beyond difficult questions of legalities to prevent similar kinds of outcome by keeping PC safe, however unsatisfactorily.

So this judgment is pretty tactical – the ICB who commission healthcare services in Surrey were not a party to this ruling and whether or how they discharge their responsibilities under s140 to ensure AMHPs are not placed in the position of having to put the police in this position, is unexplored. I wonder, for example, whether ICBs will be reading this ruling during this week and thinking, “actually, this reflects on us manly to ensure appropriate resources are afforded to the business of protecting the rights of vulnerable people and facilitating the responsibilities of agencies like the police, the AMHP and the trust to keep people safe within the law.

This situation was a total mess and I’m glad to see one of these situations highlighted in ruling with such detail. But as I said at the top of the piece: work I’ve done in the past ended up demonstrating there were between 3,900 – 4,500 unlawful detentions per year where MHA applications couldn’t be made for people who had originally been arrested for an offence but where there was no bed.  And remember: this is for people originally arrested – it doesn’t include those situations where officers reached immediately for s136 MHA and removed people to a Place of Safety where the timescales expired 24hrs later without a bed.

If you ballpark what that may look like and think about how situations have changed since 2018, you might wonder if that number is now over 10,000? – I’d need some really detailed convincing and evidence that it isn’t.

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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, 2024

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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