A query from an east of England force today involved something referenced in brief across a few blogs but when I went looking for one to send across and explain the answer to their question, it was hard to find so an individual post is warranted, not least because the officer contacting me said they’ve had this twice in a week and I’ve known this situation a number of times.
Their situation involved a mental health patient who was encountered by police officers in some distress on the outskirts of town. Enquiries with the person manage to establish their identity and it’s discovered from a quick PNC check the person is a Mental Health Act patient who is Absent Without Leave (AWOL) from elsewhere in the country, almost two hundred miles away. The person is really quite unwell, very obviously vulnerable and officers feel they have no option but to detain the person for their own safety. The relevant power to use here is section 18 of the Mental Health Act, assuming we know enough about the legalities at the other end of things.
It’s a power for anyone who had custody of the person prior to them absenting themselves or for an Approved Mental Health Professional or police officer to retake the person in to custody and return them to the hospital from which they are missing but it needs to be borne in mind that some sections from which patients can be AWOL have an expiration period for re-detention so knowing the person was AWOL on a certain date when they absconded is not enough. If they are a s2 MHA patient (which probably is the most common example), someone can only be retaken under s18 MHA for the 28-day period after their admission to hospital. The PNC entry would need to tell you the date of admission for you to then confidently know section 18 could apply – I have a resources page with all the timescales for the various AWOL and absconder situations officers are likely to encounter and it’s important we don’t confuse AWOL patients with absconders – they are two different things.
So section 18 MHA it is – and the relevant hospital is many hours away involving a long motorway drive.
Now, for reasons covered in one of my other posts, the officers quite rightly decide they are not just going to pop the person in to their police car and commence the long journey north. You can read the detail if you require it, but the Code of Practice MHA cautions against transportation in a police vehicle by officers and it points out it is the responsibility of the hospital to arrange return of their patient. So the question naturally arises: where should the officers take the person, until such time as those arrangements are made?
It may take many hours, given the hospital will need to either identify staff and a vehicle and then travel to the patient’s location or arrange a private ambulance contractor to undertake the task on their behalf. This stuff can’t always be arranged on the same day the patient is re-detained.
So where are we going first?!
THREE BROAD OPTIONS
As ever with all police detention under the Mental Health Act, you have a few options –
- You could take the person to an Emergency Department and ask if they’re willing to help, just as officers sometimes do that for those of us detained under s135 or s136 MHA.
- You could remove the person to the health-based Place of Safety for those of us detained under s135 or s136 and ask if they would be prepared to help in this situation. Joint protocols about the operation of a PoS probably won’t touch on this subject, but nothing in law prevents the police from asking the question.
- And let’s imagine both of those options have been tried and failed or dismissed for some other reason, you could think about police custody or the police station more generally.
- Of course, nothing prevents you improvising something else in your local area, but you’ll know better than I do what that might be and whether it’s even viable.
At this point, I should imagine the officers reading this and the custody officers in particular will have gasped loudly and have alarm bells ringing.
Haven’t we stopped using police custody and police stations for people detained under the MHA? Well, only partly. The Mental Health Act (Place of Safety) Regulations 2017, which ban use of police stations for children and impose strict criteria on use for adults, only relate to s135 and s136 situations. This is not such a situation and the police station would not be in use as a “place of safety” as defined by s135(6) MHA.
Now, when the wording of s18 MHA states “… be taken in to custody and returned to the hospital …” this doesn’t mean police custody. It means the condition of being taken in to legal custody, ie, being detained. Nothing in the wording of s18 explicitly allows for someone to be taken to one place as a holding location, pending the proper arrangements being put in place to have them moved over a very long distance.
But nothing expressly prohibits it either if it can be justified as something better than the available alternatives.
WHY WOULD YOU?
The force which made the enquiry had encountered certain problems.
The health-based Place of Safety for s135 and s136 detentions was unable to assist because they were being fully utilised for local assessments of people already detained by other officers. The Emergency Department was reluctant to be used as a waiting room because they were very busy with ambulances already stacked and the officers were swith our AWOL patient were still in the original location where they had encountered and re-detained them waiting for control rooms, supervisors and NHS partners to sort out what was going to happen next.
With reluctance, the patrol sergeant had contacted custody and apparently had a very good natured exchange of views with no row involving use of words like “joking” or “kidding” albeit the custody sergeant did think it was a bad idea. In the first instance, she had said “We can’t use police stations or custody any more”, misunderstanding those 2017 Regulations which don’t relate at all to s18 MHA. In fairness, those Regs do give a clear hint in the direction of not detaining mental health patients in custody – it’s not a therapeutic setting and it’s a noisy environment, usually full of criminals screaming at the police.
However, what option do you have? – other than using a different part of a police station like a public or victim interview room which you might find adjacent to a front office or a room where video recorded interviews of vulnerable crime victims are completed in a space more comfortable than the front office adjunct? That latter idea would also require the room to be free, of course and it would put it out of commission to child victims or adult victims of domestic abuse or sexual violence for whom it was primarily intended.
None of this is ideal, is it?!
MAKE A DECISION
Meanwhile, amidst all of these considerations, the original hospital in the northern mental health trust has spoken to the patrol sergeant is trying to get some arrangements together but they’re stating it will be at least six to eight hours before they arrive to collect their patient and the police know the person is going to need food, drink and perhaps a clinical check to ensure they’re OK.
So where are you going to go?
- The power of s18 is to return the person to the hospital from which they’re missing and nothing expressly permits a holding stage somewhere else in advance of doing that.
- But there are good reasons in these long distance, out-of-force situations why you’re not just going to hit the M1 or the M6 and start rushing north without thought or preparation. How would you justify that if you had a serious event on the motorway network halfway there without clinical supervision of the patient?
- Nothing in law prevents you making a sensible decision to keep someone safe whilst better, more dignified and appropriate arrangements are made and which may also allow the person to get a shower, some food or drink and be seen by nurse or doctor to ensure their immediate wellbeing and confirm they seem medically fit to undertake a long journey.
None of this is ideal – few things in this area of business are and, to use a phrase I haven’t indulged on this blog for many years, sometimes the role of the police is to identify the least worst option from a suite of unacceptable or non-ideal options and run with it until a proper pathway can be forged.
I would say yes, it you believe you can justify it (and for me, that would include having tried, failed or ruled out all other local options), you could remove someone to police custody or police station as a last resort – by then, it would be decision between that or sitting in a police car at the side of the road for six to eight hours and that sort of thing hits the news headlines when patients end up sleeping under duvets or similar.
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 