A couple of weeks ago I attended a free legal seminar in Birmingham put on by Weightman’s, a top law firm who have a number of lawyers specialising in mental health and capacity law. It speaks to their experience they decided to pay for two barristers and also gave up two of their own solicitors time to run an event with breakfast and lunch provided, to get organisations in the same room and talking to each other. Yes, I’m sure they were interested in the potential for work to be generated as a result, but I really think it was more than that – the topics during the day were many and various from the Right Care, Right Person programme to issues around mentally disordered offenders and those with learning disabilities who present distinct challenges and eventually, powers of entry for emergency mental health situations. It was extremely interesting and well attended by police, mental health trusts, local authorities, etc..
I attended with my good friend @asifamhp from X-Twitter and we sat at the back, less well dressed than everyone else because he’s a AMHP and I’m now just a private individual, but we threw in a number of contributions on the various sticking points across a dysfunctional system before repairing to the bar and drinking diet fizzy water. It was slightly weird for me that day, because West Midlands Police were in the room – and I disagree with them about a large number of issues in policing and mental health and of course am now free to say so.
During the day, the topic came up about prisons and the transfer of mentally disordered prisoners from the custody estate to secure mental health care. You can read more about the transfer orders under sections 47/48/49 MHA elsewhere on this website, but for our purposes here that discussion gave rise to the idea of police officers being asked to use s136 MHA at the gate of the prison when those in need of transfer to hospital have to be released, in range of legal circumstances. Ian Brownhill, top chap and one the barristers leading the discussion, seemed quite amazed at the idea. Once upon a time, it was suggested by a particular prison and mental health trust a joint protocol should exist between them and their local police force to enable them to call upon officers to utilise section 136, almost directing them to do so, in conjunction with mental health professionals. I was asked by a senior police officer what I thought about the very idea of it and having the read the draft policy document, advised against signing up.
GATE ARRESTS
By the sheerest of coincidences, my very first arrest as an officer was at the gate of Winson Green prison, now HMP Birmingham which stood smack, bang in the middle of the Winson Green policing “sector” to which I was posted when I joined, a great place to learn my craft. My tutor constable and I were told a man was due to be released that morning and we were to attend and arrest him because it had recently come to light he was wanted in London for burglary and the Metropolitan Police had requested his arrest and this was an ideal, simple arrest for a probationer. So down we went and did the honours and I must say: I felt a little sorry for him, being young and naive – as the massive metal door opened he saw two officers stood there and our police car parked right up against the gate at an angle to ensure he couldn’t run and I arrested him.
He was absolutely livid!
From just across the road came a young woman in a short skirt with a carrier bag of alcohol as the handcuffs were going on. He’d obviously planned his release day and been met by a female companion with a view to drinking and enjoying each other’s company that afternoon but we’d put a spanner in the works and shipped him off to police custody from where he was taken to London for interview.
You never forget your first arrest!
Should or could this sort of thing be done at the prison gate using s136 MHA? Well, why not? – if the grounds are met for use of the power, it’s not unlawful to do it but we’ll need to talk about planning and preparation for release, the lack of secure mental health beds and the way in which release comes up because it’s very obviously far from ideal, isn’t it?!
136 ON RELEASE
I’m given to understand some people think 136 at the prison gate should be a “never event” – proper planning and preparation for release should mean the situation never emerges where someone is booted out of the door when they are so mentally vulnerable they require admission to hospital. After all, the mechanisms exist in law to transfer people so if a switch across the systems is required, sections 47 (transfer of convicted prisoners) and sections 48 (transfer of remand or other prisoners) allows for it, and s49 allows the Ministry of Justice to restrict the circumstances in which hospitals can make decisions about discharge, leave and transfer to other hospitals.
So why not use those mechanisms?
Well, to move someone requires a bed – the age old problem. There is often just as much difficulty finding a suitable placement, if not more difficulty, than when AMHPs in non-prison contexts are trying to section someone. We know of examples where the urgency and obvious dangerousness of someone’s imminent release has caused extended action in the High Court to attempt to compel a solution that prevents a vulnerable, dangerous child who is a risk to herself from simply being booted out because the prison has run out of law to hold her. In that ruling the Judge said of a situation where no bed was found –
“We should be left with little but the hope that the police would have had occasion to take X into custody before she was able to cause herself irreparable harm.”
This doesn’t necessarily mean s136 gate arrest, but I submit that must have been a part of his thinking if the concerns were so grave as to be causing not 1 or 2 but 3 (and then eventually 4) High Court hearings about this young person’s release, the idea of gate detention to prevent serious harm would probably emerge as people started to panic about the inevitable untoward event.
Of course, ideally, planning and preparation should prevent situations like this emerging: mental health in-reach services can assess people in prison and make recommendations for transfer, but as the case of ‘X’ makes clear, the beds don’t always exist. Some might reasonably point out that if officers were to pull up to the gate on release and use this power, at best it buys 24hrs of time to find the bed which in that case was already known to be unavailable for months ahead. The obvious counter-point is to observe that s136 detention could then get in to the regrettable and difficult territory of the mental health system improvising its way through the problem – for example, by closing the 136 suite and turning it in to a makeshift CAMHS bed for the patient. We know this has happened in the past, far from ideal though it is.
Would you rather be explaining all that or in Coroner’s inquest facing a family to explain why it wasn’t best practice so you didn’t try or, as argued by some police officers, that none of this is any business of the police to use that power in that circumstance? Might be worth asking who else has a power to act in these regrettable circumstances and I’ll quickly help you out with this to save you time: no-one does.
SUDDEN RELEASE
The real world is that planning and preparation doesn’t always work: if you read the judgment in the blog above for the RE X (A CHILD) No 3 (2017), you’ll notice a comprehensive Annex which explains all the efforts made by authorities to avoid the situation before the court – it’s not as if nobody had tried to do anything. But even if you’re not convinced by this situation, there are others in the real world which mean it’s perfectly possible to foresee a situation where use of s136 may be both justified, unavoidable and the only way to mitigate risk:
I recall a situation where a remand prison was released quite unexpectedly. He had been in prison on remand for a few months, charged with a serious offence and pending trial in the future, several months away. During his detention, his mental health problems were formally assessed because of an extensive mental health history, previous psychiatric admission and concerns about him from prison officers. Prison in-reach services had assessed him formally and determined he required transfer to hospital under s48 and the relevant application had been made to the Ministry of Justice who had authorised the transfer in principle and a bed was being sought, albeit without success.
All of sudden and quite unexpectedly, the CPS then notified the prison the man should be released because an evidential review of the case against him had occurred and it was decided on new information there was insufficient evidence to continue with the prosecution and no likelihood of a conviction – I don’t know the circumstances but it could be an important witness had refused to give evidence of new forensic or other evidence or information had come to light. The important point for this post was the CPS had directed his release from prison without any notice (because that’s how the process works and it could hardly be otherwise) and he was seriously mentally ill.
Essentially, they now had, at best, an hour or so to release him and no legal authority to hold him because the MoJ authorised transfer couldn’t happen because a) there was no bed AND now b) because he was no longer a prison on remand, for the purposes of s48 MHA.
CALL THE POLICE
Someone rang the police
Could officers gate arrest him under s136 MHA because of this unexpected development beyond everyone’s control? The prison and mental health services provided decent information about why the situation had come about, how they couldn’t have planned around this and they needed to take him to a Place of Safety to have an AMHP and DRs assess him for admission under Part II of the Act, with the bed search now ongoing because of urgency, with only 24hrs to sort it before a different kind of nightmare hit everyone.
I don’t see how you plan around that – it’s all beyond their control.
The CPS lawyer who has to sit down and do an evidential review, for whatever reason that took place, can hardly say before the review is completed that release will be necessary and even if they could say they were doing a review that morning so it may be the case by the afternoon that release is required, this is still insufficient time to plan and prepared you way around the release – it’s still just hours of notice rather than minutes and that makes no difference when bed searches have been going on for weeks or months.
The fact is: use of s136 at the gate of a prison is lawful if the grounds for doing so are met: mental disorder, immediate need of care or control in that persons interests or for the protection of others, etc., etc. I don’t see how any police force preference that it never happen or policy direction that it should not happen holds any water. It might just mean you end up with a call-handler denying deployment when a prison rings up to request it, only for the person to be released anyway because the prison has no other option and we’re then in the position feared by the High Court judge in RE X case: that the person causes themselves (or perhaps, others) irreparable harm.
And if I were a call-handler, I’d be making sure I ask lots of questions about the circumstance, considering each request on its merits and referring the matter to a supervisor for a decisions. It’s too massive call to make for 25-grand a year plus shift allowance when one outcome from getting wrong is someone’s death.
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 am not a police officer.
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.
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