The Metropolitan Police has today published its response to a Freedom of Information Act application for data about use of s136 of the Mental Health Act 1983 and the use of police custody. It’s a curious release which begs a number of question I want to go through here but be aware, I don’t think I’m going to be able to make this make sense by the end. The purposes of the post is to highlight the confusion and / or contradiction going on here.
Firstly, you may want some hyperlinks to data so you can check for yourself. They are –
- Home Office data – on use of s136 MHA for the financial year 2022/23.
- Home Office data – on use of s136 MHA for the financial year 2021/22.
- The Freedom of Information data release – covering usage in the calendar years 2021, 2022 and 2023.
So first thing to note is we’re not going to be comparing like with like when we contrast this data – the Home Office publishes financial years (April-March) and the Met have been asked by the applicant to look at calendar years (January-December).
The FoI question No 1 of 2 asks “the number of people placed in police custody after being detained under Section 136 of the Mental Health Act 1983.” It also asks then for those data to be broken down by ethnicity, No 2 of 2. The Metropolitan has only partially answered the second question, claiming a legal exemption in case it accidentally identifies people and important through race is in policing and mental health, it’s not the main focus of this post so I won’t dwell on that. I actually think claiming an exemption is fair enough.
USE OF CUSTODY
Police stations can only be used as a Place of Safety for adults and even then, only in certain circumstances. These are outlined in the Mental Health Act (Place of Safety) Regulations 2017. It states three criteria must be met –
- The person detained must pose an imminent risk of death or serious injury, either to themselves or another.
- No Place of Safety in the force area available which can manage them.
- Use of a police station is authorised by an officer not below the rank of inspector.
If any one of those three things is absent, detention in police custody should not be occurring because it would be unlawful. So, how many times did the Met do this, according to the data?
- In normal reporting to the HO for 2021/22 (see the links, above), it reported just ten occasions in the 5,971 detentions which took place.
- For 2022/23, it reported just two occasions in the 6.093 which took place.
- In the FoI release, the first table (which answers question one of the application about total numbers in police stations), it stated it was 873 for 2023 and 55 for 2022 and there appears to be no data for 2021.
- Table one breaks down the detentions by race, even though the question was not about race and that data is partially redacted, in accordance with the FoI exemption claimed.
- In the second table, which purports to be about race and is also partially redacted, the numbers are different, but it doesn’t explain why. It talks about offences and s136 MHA, whilst it is an arrest in law, is not an arrest for an offence, so presumably, table two is referring to people who were detained under s136 and also under arrest for an alleged offence, whether it occurred in that order or the other way ’round.
- But when we go back to the Home Office data for s136 in both calendar years, we can see (on table MHA_05b of each edition) how often a police station was used as a Place of Safety after use of s136 MHA because of a substantive offence being involved.
- Those data are five for 2021/22 and zero for 2022/23.
WHAT’S WHAT?
So where does 873 for 2023 and 55 for 2022 in table one of the FoI come from, in terms of use of the power? … and exactly what are the numbers being cited in table two of “30, 86 and 1,069” for offences even though the FoI question No 2 was about simply breaking down s136 detentions by race and didn’t ask about offences?! In fairness to the Met sounding utterly confused, the Home Office data also tells us about 136 where “substantive offences” are involved and that’s not fully explained either.
I’m utterly confused, quite honestly and social media suggests I’m not the only one. Regardless of what is really going on here it seems somewhat obvious that even if we allow for the financial year / calendar year thing, the data submitted to the Home Office and the data released under FoI are contradicting each other to a considerable extent and we presumably now have to distrust both sets until we have it clarified what exactly is going on here?
Having written the blog post up to this point, I went back and tried again – staring at this for another hour. I admit it; I really do have no idea at all what these data are telling us and I’m wondering if the FoI applicant feels their question was answered? The explanatory notes on the FoI release don’t illuminate it any further for me so I’m wondering how they got on?!
Best of luck untangling this – if anyone gets further than me, drop me an email won’t you? My head hurts and I’m off to lie down.
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
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 