Policing, Mental Healthand Criminal Justice

Michael BrownAuthor – MentalHealthCop blog

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Section 136 Mental Health Act –place of safety pathways

s136(1) MHA 1983

If a constable finds in a place to which the public have access a person who appears to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in that person’s interests or for the protection of others, remove that person to a place of safety.

s136(2) MHA 1983

A person removed to a place of safety under this section may be detained there for a period not exceeding 72 hours for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an AMHP and of making any necessary arrangements for his treatment or care

Section 136

• Can only be started by the police …… can only be ended by a Doctor / AMHP

• No-one defines where NHS responsibilities start …… or where police responsibilities end.

• Many things MUST be done …… nothing defines who MUST do them.

Catch 22

• Loads of myths / folklore – too many• Police lack skills in recognition of mental

illness and training in the use of the power.• NHS lack legal knowledge.• Overlaps to acute medical problems• Complications because of substance use /

abuse.• Trust!

Myths & Folklore

• You can’t use s136 on someone who is drunk• Children cannot be detained in a PoS run by

adult services• Separate provision LD / CAMHS patients• Remove all aggressive / violent patients to the

cells.• An Emergency Department is NOT a PoS –• Anywhere can be a PoS!

Police Use of Section 136

• Section 136 and criminal offending• Specific considerations for alcohol offences

When do you use s136 and when you should prioritise a criminal offence?

“An offence is an offence is an offence, isn’t it?!”

Substantive Victims

• Prioritise the criminal offence and the victim’s rights, unless –

– A trivial offence, or actually victimless– The victim is not ringing about crime, but about support

for the person– In all the circumstances, suspected mental health

problems are the main issue in play

You can reverse a 136 decision; you can’t reverse an arrest decision.

Alcohol Offences

• Avoid the use of s136 where alcohol is involved, unless –

There is objective information, concerning a mental health problem, beyond an officer’s observations.

–Police records indicating a mental health history–Third party information at the scene–Broader context from the incident

CODE OF PRACTICE – 2008• It is important to ensure that a jointly agreed local policy is in

place governing all aspects of the use of sections 135 and 136.

INCLUDING:

• identifying and agreeing the most appropriate place of safety in individual cases;

• dealing with alcohol or drugs; • dealing with violence; • access to a hospital emergency department, where necessary;

[Para 10.16 & 10.17 CoP MHA]

IPCC Research

• First review of s136 across England / Wales

18,000 detained under s136 MHA11,500 detained in the cells.

Over 65% of the total.

• NHS Figures 2011 / 2012

50 / 50 split – there is a long way still to go.

THE s136 PROBLEM

• Some people arrested under s136 MHA are presenting both clinical and security risks:

CANNOT be managed by the police aloneCANNOT be managed by the NHS alone

Including where drugs, alcohol and aggression are involved.

ADDITIONAL CONSIDERATIONS

• ECHR requirements:

– Article 2 “right to life”– Article 3 “inhuman and degrading treatment”– Article 5 “right to liberty”– Article 8 “privacy and family life”

• Health & Safety At Work Act 1974• Police and Criminal Evidence Act 1984

WHAT WE NEED TO AVOID

POLICE STATION

EMERGENCYDEPARTMENT

PSYCH PoS

PATIENT

RED FLAGS ON ARREST

• Arrest under s136 Mental Health Act• Ambulance to EVERY arrest.• Assess for RED FLAGS

• RED FLAGS to the Emergency Department• NO RED FLAG to identified PoS provision • Consider improvised alternatives• Police station as last resort.

RED FLAGS (1)Dangerous Mechanisms:

• Blows to the body• Falls > 4 Feet• Injury from edged weapon or

projectile• Throttling / strangulation• Hit by vehicle• Occupant of vehicle in a collision• Ejected from a moving vehicle• Evidence of drug ingestion or

overdose

Serious Physical Injuries:

• Noisy Breathing• Not Rousable to verbal command• Head injuries• Loss of consciousness at any time• Facial swelling• Bleeding from nose or ears• Deep cuts• Suspected broken bones

RED FLAGS (2)Attempting self-harm:

• Head banging• Use of edged weapon

(to self-harm)• Ligatures• History of overdose or poisoning• Psychiatric Crisis• Delusions / Hallucinations /

Mania

Possible Excited Delirium:

• Two or more from:• Serious physical resistance /

abnormal strength• High body temperature• Removal of clothing• Profuse sweating or hot skin• Behavioural confusion /

coherence• Bizarre behaviour

POLICE SUPPORT AT THE PoS

• Police Officers remain at ED throughout

• Joint risk assessment at PoS:

Low: left with PoSMedium: case by case, on meritHigh: ongoing police support

POLICY AUTHORITIES (1)

• Mental Health Act 1983• Code of Practice to the MHA, revised 2008• Police and Criminal Evidence Act 1984 (PACE).• Code of Practice, Code C, to PACE, revised

2008• Human Rights Act 1998• Data Protection Act 1998

POLICY AUTHORITIES (2)• Royal College of Psychiatry Standards on s136 (2011) & position statement (2013)• Independent Police Complaints Commission of the use of police cells for detentions

under s136 (2008)• Academy of Medical Royal Colleges Report on Managing Urgent Mental Health

Needs in the Acute Trust (2008)• NICE Guidelines on the Short-term Management of disturbed / violent behaviour

(2005).• NICE Guidelines on Self-harm (2004).• NPIA Safer Detention Guidance, NPIA (2006) • NPIA Guidance on Police Responses to People with Mental Ill Health or learning

disabilities (2010)• Home Office Circular 17/2004• Home Office Circular 66/1990• R v Ashworth Hospital Authority (2005), House of Lords.• MS v UK, ECHR.

RAVE Risks

R - resistanceA - aggressionV - violenceE - escape

Conveyance of Patients –s6 MHA and Chapter 11 CoP

s6(1) MHA 1983

An application for the admission of a patient to a hospital under this Part of this Act, duly completed in accordance with the provisions of this Part of this Act, shall be sufficient authority for the applicant, or any person authorised by the applicant, to take the patient and convey him to the hospital.

DELEGATED AUTHORITIES

• Duty on CCGs to ensure effective arrangements for transportation of patients.

• Danger of the expedience argument• Coroners’ Rule 43 letters, following inquests• IPCC and ACPO reservations

• No ability to compel the police to accept s6 authorities!

THE LEGAL DUTY OF CCGs

• Para 11.6 MHA CoP – “It is for Clinical Commissioning Groups (CCGs) to commission ambulance and patient transport services to meet the needs of their areas. This includes services for transporting patients to and from hospital (and other places) under the Act.”

• Para 11.10 MHA CoP – “It is essential to have clear agreements in place so that people who need assistance in conveying patients under the Act can secure it without delay. Authorities, including NHS bodies responsible for hospitals, ambulance services and the police, should agree joint local policies and procedures.”

STUCK IN THE MIDDLE

• Para 11.11 MHA CoP – “Policies should ensure that AMHPs (in particular) are not left to negotiate arrangements with providers of transport services on an ad hoc basis, in the absence of clear expectations about the responsibilities of all those involved.”

• Para 11.16 MHA CoP – “AMHPs should make decisions on which method of transport to use in consultation with the other professionals involved, the patient and (as appropriate) their carer, family or other supporters. “

POLICE SUPPORT

• Para 11.17 MHA CoP – “If the patient is likely to be unwilling to be moved, the applicant should provide the people who are to convey the patient (including any ambulance staff or police officers involved) with authority to convey the patient.”

• Para 11.18 MHA CoP – “If patient’s behaviour is likely to be violent or dangerous, the police should be asked to assist in accordance with locally agreed arrangements. Where practicable, given the risk involved, an ambulance service (or similar) vehicle should be used even where the police are assisting.”

AMBULANCE SUPPORT• Para 11.19 MHA CoP – “The locally agreed arrangements should

set out what assistance the police will provide to AMHPs and health services in transporting patients safely, and what support ambulance or other health services will be expected to provide where patients are, exceptionally, transported in police vehicles.

• Para 11.20 MHA CoP – “Where it is necessary to use a police vehicle, it may be necessary for the highest qualified member of an ambulance crew to ride in the same vehicle with the patient, with the appropriate equipment to deal with immediate problems. In such cases, the ambulance should follow directly behind to provide any further support.”

Other Detentions and Conveyance –

AWOL patients, CTOs and recalls

RECOVERY OF AWOL PATIENTS

• Para 22.13 MHA CoP – “The police should be asked to assist in returning a patient to hospital only if necessary. If the patient’s location is known, the role of the police should, wherever possible, be only to assist a suitably qualified and experienced mental health professional in returning the patient to hospital.”

RAVE RISKS!

AWOL PATIENTS

• Re-detention of an AWOL patient should be treated like a first detention under s136 MHA –

– Arrest > Ambulance > Assess– Any RED FLAGS to A&E;– Otherwise return to the original hospital.

– No explicit power to hold in custody.

RECALLED CTO PATIENTS

• Re-detention of a CTO patient is the re-detention of an AWOL patient and should be regarded as such –

– Arrest > Ambulance > Assess– Any RED FLAGS to A&E;– Otherwise return to the original hospital.

– No explicit power to hold in custody.

Criminal Suspects –mental health in police custody

PREVALENCE IN CUSTODY

• Police identification = 12-15%• Nurse identification = 15-18%

• NHS information suggests = 40-50%

DE FACTO DIVERSION

• The single variable which influences diversion from justice –

–Whether the detainee is “sectionable” under the MHA ‘83

CUSTODY RECORDS

10,000 custody records1,076 MH was queried > FME

512 FME > MHA assessment415 FME said ‘proceed as normal’

– may as well not be ill.

OUTCOMES

Diversion:

x9 Section 3 MHAx76 Section 2 MHAx12 Informal / voluntary

Non-Diversion: ‘business as normal’

OUTCOMES

• Offences prosecuted when suspect is ‘sectionable’ under the MHA:

ZERO!• Offences remaining subject to bail when the

suspect is ‘sectionable’ under the MHA:

ONE!

NEW MODEL

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