Can a person in police custody be detained under S.136?

Following the recent changes to S.136 MHA by the Policing & Crime Act, there has been some discussion in mental health circles about whether or not a person who has been arrested for an offence and is in police custody can be detained under S.136 while still in custody.

This question would not have arisen prior to 11th December 2017, as someone could only be made subject to S.136 if they were in “a place to which the public have access.” A police station was most definitely not such a place.

However, the new S.136(1B) has dispensed with this requirement, and now states that the power can be used in “any place”, with only a few exceptions, which include a private dwelling.

So theoretically at least, it would be within the law to use the S.136 powers in a police station.

Let’s look at a possible scenario.

Scenario 1

Gary is arrested after he was challenged by police in the town centre and threw a can of lager at the police officer. Once in custody, it becomes clear to the custody officer that Gary is suffering from some sort of mental disorder.

Prior to 11th December 2017 the custody officer would have had to contact the local AMHP service, who would then have arranged to conduct an assessment under the Mental Health Act at the police station.

Now, however, a second option is available: to detain under S.136 and then either transfer them to a place of safety or allow them to be assessed in accordance with S.136 requirements in the police station.

Clearly, the question of using S.136 in these circumstances depends on the seriousness of the offence; it would probably not be appropriate to consider moving someone to a S.136 suite who has been arrested on suspicion of murder.

I can certainly see that S.136 could possibly be appropriate, as well as legal, if the custody officer believes the person needs an assessment of their mental health, and would be better served in a non police based place of safety.

But what if the person in custody has already been assessed under the MHA?

Scenario 2

The custody officer considers Gary has a mental disorder and an AMHP and two doctors assess him in the police station. They conclude that he has a mental disorder within the meaning of the Act, and that he should be detained in hospital.

However, no bed has been identified, and the 24 hour PACE clock is running out.

Again, prior to December 2017, the custody officer would have had no choice but to watch the PACE clock run out and then make a decision whether or not to release someone who has been assessed as needing detention in a hospital because of risks to themselves or others, or to keep them in custody, outside of any legal mechanism.

Unfortunately, because of the dire nationwide shortage of beds, exacerbated by an even worse shortage of specialist beds, such as Psychiatric Intensive Care Units (PICUs), and placements for children, this scenario is not uncommon. In a few instances in our area, people have been kept in legal limbo in police custody for up to 72 hours before a bed has been found.

A custody officer could be forgiven if, after perusal of the revised S.136, they exclaimed “I can detain this person under S.136 and that gives another 24 hours to find a bed!”

But would this be legal? My first response to this scenario would be to say that it would not, but close reading of S.136 throws up complications.

Let’s look at what the MHA, and the Code of Practice, has to say.

The first thing that an AMHP would focus on is their duties under S.136. This is to be found in S.136(2):

A person removed to, or kept at, a place of safety under this section may be detained there … for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an approved mental health professional and of making any necessary arrangements for his treatment or care.

The Code of Practice stresses:

The purpose of removing a person to a place of safety in these circumstances is only to enable the person to be examined by a doctor and interviewed by an AMHP, so that the necessary arrangements can be made for the person’s care and treatment.(para16.25)

An AMHP (myself included) would argue that in Scenario 2 Gary has been assessed, and therefore does not need another assessment. Would it not be an abuse of S.136 to use the powers simply to manage the PACE clock?

However, what is the precise wording of S.136(1), where it relates to the police’s powers?

This says:

If a person appears to a constable 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 the interests of that person or for the protection of other persons…remove the person to a place of safety.

What this section is saying is that all a constable has to establish in order to exercise their power is to be satisfied that a person appears to be suffering from mental disorder and is in immediate need of care or control.

They don’t have to worry about the niceties of assessment by an AMHP and a doctor, even though that is the legal consequence of using S.136.

Essentially, S.136(1) provides instructions for the police alone, as AMHPs would only be involved at that stage if the constable’s duty to consult with a mental health professional was being exercised.

S.136(2), however, provides instructions for the AMHP. The constable has no part in decisions relating to disposal of the person once detained, except for circumstances in which the police are required to manage the person.

So the custody officer in Gary’s case would certainly have the evidence of mental disorder. After all, Gary has had a full MHA assessment and a decision has been made that Gary should be admitted to psychiatric hospital. The custody office could equally conclude that, being mentally disordered, and having been arrested because of his behaviour, Gary was in immediate need of care or control.

He could also legitimately conclude that Gary, being definitely mentally disordered, would be better off in a S.136 suite than in a police station.

On this reading, there would be nothing in law to stop the custody officer from detaining Gary under S.136.

I just hope they don’t do this too often, or AMHPs are going to have an even greater workload.

Who Can Apply for a Sec.135(2) Warrant?

Our AMHP Service has from time to time had problems with Magistrates and others who are convinced that only an AMHP can apply for a warrant under Sec.135(2).

This is incorrect.

The text of Sec.135(2) is as follows:

(2) If it appears to a justice of the peace, on information on oath laid by any constable or other person who is authorised by or under this Act … to take a patient to any place, or to take into custody or retake a patient who is liable under this Act …to be so taken or retaken—

(a) that there is reasonable cause to believe that the patient is to be found on premises within the jurisdiction of the justice; and

(b) that admission to the premises has been refused or that a refusal of such admission is apprehended,

the justice may issue a warrant authorising any constable to enter the premises, if need be by force, and remove the patient.

In contrast, Sec.135(1) permits a police officer to enter the premises of someone who appears to be mentally disordered and is either being ill treated or neglected, or, living alone, is unable to care for themselves. Only an AMHP can apply for such a warrant. The purpose of this warrant is in order to enable the assessment of the person in question.

A Sec.135(2) warrant, on the other hand, is specifically for the purpose of removing a mentally disordered person and taking them to hospital. No assessment is required or needed. This would typically be used when a detained patient was refusing to return from Sec.17 leave, or a CTO patient who was being recalled to hospital and who was objecting to this. In other words, they would have to be already “liable to be detained”.

The Reference Guide states:

A warrant may be applied for by a police officer or any other person who is authorised to take or return the patient to any place or take them into custody.(para7.14)

A police officer is first on the list, which is logical, as it is only a police officer who can execute the warrant. Although an AMHP would be regarded as an authorised person, we need to look at Sec.18(1)(c) for more details. This gives an exhaustive list of those who are authorised to return or readmit people who are either liable to be detained or who are subject to a CTO and have been recalled. These patients can be returned “by any approved mental health professional, by any officer on the staff of the hospital, by any constable, or by any person authorised in writing by the managers of the hospital.”

So as well as a constable and an AMHP, other people who can apply for a Sec.135(2) warrant include hospital staff, local authority employees, and community staff such as care co-ordinators in community mental health teams. Richard Jones points out that even Mental Health Act Administrators have made applications under Sec.135(2). (1-1330 Mental Health Act Manual 19^th Edition)

I have to say I find it surprising that a magistrate, having the support of a Court Clerk, may still insist that the applicant has to be an AMHP.

I find it less surprising that community staff, wishing to recall a resistant CTO patient are ignorant or this. But I am always happy to explain to them that they can go through the process of applying to the court for a warrant, rather than an AMHP from our AMHP Service.

We already have more than enough to do.

The Policing and Crime Act 2017 – Implications for the Mental Health Act and AMHPs

The Policing and Crime Bill is likely to become law in April 2017. So what, you may ask? This is surely about policing and crime. What does it have to do with the Mental Health Act?

Well, it’s true that this new piece of legislation covers a wide range of matters, including police complaints procedures, the Police and Criminal Evidence Act, and Maritime enforcement, but it is also concerned with changes to police powers, and this is where there are significant implications for AMHPs (and the police, of course).

For the second time in 3 years, the Mental Health Act 1983 will have some significant amendments. The last time this happened was with the Care Act 2014, which among other things, amended Sec.117. Now, Sections 81-84 of the Police and Crime Act will significantly amend Sec.135 and Sec.136 MHA, which of course relate to police powers relating to people with mental disorders.

Reduction of period of detention

One of the most significant changes is to reduce the period of detention of people under both Sec.135, which is concerned with entering the premises of mentally disordered people in order to be assessed and removed to a place of safety, and Sec.136, which is concerned with police powers to remove people from public places.

Ever since the Mental Health Act 1983 came into force 32 years ago, the maximum period of detention has been 72 hours. This will be cut to 24 hours. In exceptional circumstances a medical practitioner can extend this by another 12 hours to a maximum of 36 hours. But that’s it.

This seems likely to create significant problems for mental health services who, despite Theresa May’s recent promises to improve services for people with mental health problems, are grossly underfunded, and likely to remain so, whatever the Prime Minister says.

It has become a not uncommon situation for there to be considerable delays in finding a bed for a patient who has been assessed under Sec.136. While it has always been exceptional for Sec.136 to last the maximum allowed time of 72 hours, it’s far from unknown for a Sec.136 to last for more than 24 hours, especially if there has been a delay in assessment, for instance because a patient was unfit for interview through drink or drugs, or if a patient was detained out of normal working hours.

What will happen if a bed has still not been found after 24 hours? Mental Health Trusts are simply going to have to ensure that sufficient beds are available.

“Public places” and “places of safety”

There are also some intriguing changes and clarifications to the existing MHA. For example, under the amended Sec.136, a police officer may “if the person is already at a place of safety within the meaning of that section, keep the person at that place”.

The new amendments also clarify the meaning of “public place” for the purposes of the Mental Health Act. While it does not exactly define what a public place is, it specifies that a police officer can exercise their powers under Sec.136 “at any place”, the explicit exceptions being “any house, flat or room where that person, or any other person, is living,” or “any yard, garden, garage or outhouse that is used in connection with the house, flat or room, other than one that is also used in connection with one or more other houses, flats or rooms.”

This might mean that there will be fewer arguments about what may constitute a public place, since powers will essentially be able to be exercised “at any place”. However, it also leaves the question of what constitutes a “place of safety” rather vague.

It would appear that someone could be detained in an A&E department of a hospital, or in a care home, for example, and the police officer can then keep them there in order to be assessed, as these might constitute places of safety.

Children detained under Sec.136

The Policing and Crime Act inserts a new Sec.136A, which principally states that “a child may not… be removed to, kept at or taken to a place of safety that is a police station.”

It would therefore not only be extremely undesirable for a child under the age of 18 to be detained in a police station, but actually illegal.

This is a logical development of the longstanding intention that nobody detained under Sec.136 should be detained in police cells, and most places now have sufficient designated Sec.136 suites to make it extremely unlikely for anyone, adult or child, to be detained elsewhere.

The most recent statistics for use of Sec.136, taken from Uses of the Mental Health Act: Annual Statistics, 2015/16 (November 2016), show a drastic reduction in the use of police cells. Let’s hope a consequence is that police cells are never used for anyone detained under Sec.136 in future.

Police consultation before using Sec.136

One final interesting amendment is that before exercising powers under Sec.136 a police officer “if it is practicable to do so” must consult a doctor, a registered nurse, an AMHP, or “a person of a description specified in regulations made by the Secretary of State” whoever that may be.

It is difficult to see quite how “practicable” this consultation might be, since a police officer may be dealing with a very fraught crisis situation with a mentally disordered person in a very public place, such as a town centre or a multi storey car park, and may have to take drastic action immediately to prevent serious harm.

Many police forces now have some sort of triaging process, for instance, having a mental health nurse physically based in a police control room, so it may be not be totally impracticable to gain instant advice, but it is likely to be a lot more difficult to get into contact with a doctor or AMHP within an acceptable time scale.

As these changes are almost certainly going to be in force within 3 months, mental health services are going to have to have robust contingency plans in place pretty quickly.

The meaning and implications of “legal custody” when applied to the Mental Health Act

Recently, when I was on duty triaging the county’s requests for assessments under the Mental Health Act, one of my AMHP colleagues was required to arrange for the conveyance to hospital of a patient who had been detained under Sec.2 the previous evening. The conveyance had not taken place then because the receiving hospital would not accept a patient late at night.

Because of the general shortage of psychiatric beds for all types and ages of mental health patients, it is now not unusual for an AMHP to undertake an assessment with two doctors, decide that a patient needs to be detained under the Mental Health Act, but be unable to complete their application because of the lack of beds.

It then falls to another AMHP to have to conduct another assessment sometimes many days later when a bed finally becomes available.

Even when a bed is identified, it is often not practicable to arrange conveyance to hospital until the following day, which is why it is increasingly the case for our AMHP service to have to send AMHP’s off to complete the admission process on a patient they have not actually assessed themselves.

But this is not the subject of this blog post.

This particular patient was resident in a care home. It was known that the patient would be resistant to admission to hospital, so at 10:00 hrs my colleague arranged for the ambulance service and the police to attend.

This should have been a fairly routine task: arrange for transport, get the patient into the transport, and then send them on their way to the receiving hospital, with the section papers accompanying them, and return to base.

In the middle of the afternoon, and several hours after my colleague had gone to the patient’s home, I received a plaintive call from him.

After a considerable amount of cajoling and persuasion, the patient had entered the ambulance, but was refusing to sit down and allow themselves to be strapped in. The ambulance crew decided it was unsafe to proceed unless the patient was secure.

The police were in attendance, but were refusing to assist in the conveyance in any way, arguing that they had neither the power nor the duty to do so.

Eventually, both the ambulance and the police left, leaving the patient at the care home. It was then decided that the AMHP would arrange for a private ambulance service, with a crew trained to physically restrain patients, to attend. By now, it was after 17:00 hrs.

But this ambulance was based 80 miles away, and it was estimated they would take at least 2-3 hours to arrive. The responsibility for conveyance was transferred to the out-of-hours service, and the weary and frustrated AMHP left the paperwork with the care home. In the end, this ambulance did not arrive until after 23:00 hrs, and it was after midnight before the patient was finally admitted to hospital.

So what exactly are the legal implications of detaining a patient under the MHA, whether it be Sec.2, Sec.3, or Sec.4?

The act of completing an application for detention instantly confers powers on the AMHP and others.

Sec.6(1) MHA states: “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.”

Richard Jones, in The Mental Health Act Manual, 18th Ed., observes:

“If, following an assessment of the patient, the potential applicant and recommending doctor(s) agree that an application to detain the patient should be made, the common law provides authority to use restraint on the patient during the time that it takes to process the application as long as the process is not unduly delayed.”(1-104)

He goes on to say: ““The power to convey is only triggered when the application is “duly completed”. This does mean that, until all the forms have been filled in and signed, if the patient insists that the assessing team should leave, they have no choice but to do so, unless “one co-owner gave them permission to stay”.

However, once the patient is “liable to be detained”, Sec.6 MHA and all its implications, applies. This includes the powers under Sec.137 and Sec.138 MHA.

(I’ve explored the meanings of the terms “detained” and “liable to be detained” within the meaning of the MHA on this blog before. You can find it here.)

Sec.137 MHA unequivocally states:

“(1) Any person required or authorised by or by virtue of this Act to be conveyed to any place or to be kept in custody or detained in a place of safety… shall, while being so conveyed, detained or kept, as the case may be, be deemed to be in legal custody.

(2) A constable or any other person required or authorised by or by virtue of this Act to take any person into custody, or to convey or detain any person shall, for the purposes of taking him into custody or conveying or detaining him, have all the powers, authorities, protection and privileges which a constable has within the area for which he acts as constable.”

In relation to Sec.137(2), Jones notes that “either the applicant or the person delegated to the applicant (including ambulance staff) can use such force as is reasonably necessary to achieve the objective of conveying the patient”

The Reference Guide explicitly notes that this includes “patients being conveyed to hospital to be admitted on the basis of an application for admission under part 2”(Para11.4) (ie, Sec.2, Sec.3 or Sec.4)

The Code of Practice adds:

“17.13 If the patient is likely to be unwilling to be moved, the applicant will need to provide the people who are to transport the patient (including any ambulance staff or police officers involved) with authority to transport the patient. This will give them the legal power to transport patients against their will, using reasonable force if necessary, and to prevent them absconding en route.

17.14 If the patient’s behaviour is likely to be violent or dangerous, the police should be asked to assist in accordance with locally agreed arrangements.”

What the legislation and guidance states clearly is that:

• Once detained under Sec.2, Sec.3 or Sec.4, the MHA, a patient is deemed to be in “legal custody”
• This confers powers on the AMHP, the Police, or anyone authorised by the AMHP, to convey the patient to hospital, if necessary using reasonable force.

Jones elucidates these powers as follows:

 “Power… which a constable has. Which include the powers to arrest a person who is wilfully obstructing him in the execution of his duties, to use reasonable force in effecting an arrest, to prevent a person from escaping, to secure the conveyance of the person, and to require other persons to assist him in the execution of his duties.” ( 1-1343)

The Code of Practice also adds:

“People authorised by the applicant [the AMHP] to transport patients act in their own right and not as the agent of the applicant. They may act on their own initiative to restrain patients and prevent them absconding, if absolutely necessary. “(17.18)

And here’s what the Reference Guide has to say:

“When someone who is deemed to be in legal custody as a result of section 137 absconds, they can be returned by:

any police officer, or other constable

any approved mental health professional (AMHP) acting on behalf of a local authority, or

by the person in whose custody they were when they absconded.” (11.8)

So, to apply all this to the example I gave earlier, the fact that this patient was detained under Sec.2 MHA meant that the AMHP, the Police and the ambulance crew all had the power to take the patient to hospital, using whatever force was reasonable in the process. And if the patient were to abscond from legal custody, the police would have legal powers to arrest and detain the patient.

But what about the Police & Criminal Evidence Act 1984? What about Sec.26 of this Act, which is concerned with the repeal of statutory powers of arrest without warrant or order? Doesn’t that prevent police from arresting and holding a mental health patient who is liable to be detained?

Well no, it doesn’t. Because Sec.26(2) PACE states: “Nothing in subsection (1) above affects the enactments specified in Schedule 2 to this act.”

And what is in Schedule 2? This schedule is concerned with preserved powers or arrest, and states that several sections of the Mental Health Act, including Sec.18 and Sec.138, have police powers of arrest preserved.

And Sec.138(1) MHA states: “If any person who is in legal custody by virtue of section 137 above escapes, he may, subject to the provisions of this section, be retaken— (a) in any case, by the person who had his custody immediately before the escape, or by any constable or approved mental health professional.”

The law is clear. The Police cannot claim that they have no legal powers (or duties) to arrest, detain or convey a patient, once an application under the MHA has been made. And they should assist an AMHP in the discharge of their legal obligations under the Mental Health Act.

Sinking into a Legal Quagmire

I was on AMHP duty recently when I received a request for an urgent assessment under the Mental Health Act. It had come from the local criminal justice liaison nurse, who was ringing from the patient’s flat.

This in itself was very unusual. Criminal justice liaison nurses usually only assess people who are in police custody or in court.

The circumstances were as follows. Every year, the local housing association has to make a gas safety check of all their properties. One particular tenant, a man in his late 60’s who lived in a ground floor flat, had ignored all their letters and calls, and was refusing entry.

Eventually the housing association had obtained a warrant from a magistrate to enter the premises in order to check the gas supply. Two officials from the housing association had then attended the man’s flat with police officers, a locksmith and a gas engineer.

Despite the police attempting to gain entry without force, the tenant refused to open the door. At this point, the locksmith was employed to drill the lock and entry was then obtained. The tenant objected strenuously to what was happening, and the police, noticing a knife on a table near to the tenant, and fearing an incident, had then restrained and handcuffed him.

The behaviour of the person, and the condition of the property, gave the police cause to believe that he might be mentally disordered, and they then asked the liaison nurse to assess, which he did. As he thought that the person was acutely psychotic, and needed to be assessed with a view to admission to hospital for assessment, he contacted me.

There was indeed a degree of urgency. There were four police at the flat, the man was being held in handcuffs, and something needed to be done as soon as possible to resolve the situation one way or another.

I managed to obtain some background information on the patient from case records before I took any further action.

He was called Alfred and was 69 years old. He was a highly educated man, who had graduated with a first in English from Cambridge University in the 1960’s, and had gone on to teach English literature in a private school for a number of years.

Sometime in the 1980’s he had been admitted to psychiatric hospital under Sec.2 and had remained in hospital under Sec.3 MHA for several months. He had received a diagnosis of paranoid schizophrenia.

He never returned to work, and indeed disappeared from view for over a decade, when he was found by police sleeping rough, and was detained under Sec.136. He had again ended up in hospital under Sec.3, and was discharged to the housing association flat in around 2000, at which point he was receiving a regular antipsychotic depot injection. The records showed that after about 5 years it was decided to reduce and then withdraw the depot, and he was eventually discharged from Sec.117 aftercare and from secondary mental health services.

So although he had a long history of psychiatric disorder, he had not had any involvement with mental health services for nearly 10 years.

I quickly managed to obtain two Sec.12 doctors and within two hours of receiving the call we were all at the flat.

We were told by the housing association staff and the police that Alfred had been expressing extreme racist views about both the police and the housing association staff. He had used a range of racially abusive epithets, which was in itself slightly odd, as all the police and the staff were white British, as was Alfred.

We were told that Alfred appeared to be paranoid about infiltration and contamination. He had screwed closed the gas meter box, had sealed all the ventilation ducts in the flat, and had placed wooden shutters over the inside of the windows.

We went into the hallway of the flat. The flat itself was crammed with cardboard boxes. The living room was lined to the ceiling with bulging cardboard boxes, leaving little room for the dilapidated armchair and a coffee table. The bedroom was so full of boxes that there was only room for his single bed.

One of the police ushered me into his kitchen.

“Look at this,” he said, kneeling down and shining his torch through the glass door of Alfred’s washing machine. The washing machine was half full of water. Floating in the water were several large, dead fish. They looked like mackerel, or possibly herring. This added to the overall sense of unreality.

Alfred himself was sitting on the bed. He was in handcuffs, and a police officer was crouching in front of him clutching the handcuffs to prevent him from struggling. There was not enough room for the doctors and I to enter the bedroom, and we therefore had to attempt to interview him from the hallway.

It all felt very unsatisfactory. I was not sure this constituted assessing “in a suitable manner”. I did not feel in control of the situation.

Alfred unsurprisingly did not cooperate with the assessment. He harangued and swore at us, accusing us of being part of a conspiracy by the Muslims to convert him to Islam so that he could be used as a suicide bomber. He did not believe we were police, or doctors, or an AMHP. Instead, he appeared to be convinced that we were spies, intent on stealing his home and shipping him off to Syria through extraordinary rendition.

He was not making much sense.

The doctors and I, despite our disquiet at the circumstances of the assessment, concluded that Alfred had had a relapse of his paranoid schizophrenia, and was acutely unwell, and that he needed to be admitted to hospital for assessment of his mental state. The doctors gave me a joint medical recommendation for Sec.2 MHA.

At that point, things started to get worse.

In an ideal world, I would have completed an application for detention under Sec.2, the police would have accompanied Alfred to hospital, and Alfred’s flat could have been made secure.

But we are not in an ideal world, dear reader.

I rang the bed manager, who told me that there were no beds anywhere in the Trust. They would look elsewhere in the country, but it was going to take time, and it would probably be in a private hospital. And they would require me to fax through to them a full risk assessment, because private hospitals would not consider anyone without a full risk assessment. The bed managers appeared to be oblivious to the difficult and untenable situation, and the pressing need in the circumstances for the patient to be taken to a hospital.

I explained this to the police. They said they would stay there for now, but they were obviously unhappy that the patient was in handcuffs. But then they had taken that action in the first place, and had then called me.

So I went back to the AMHP office to write a risk assessment.

And had some space to think about the full implications of the whole thing.

And started to worry.

In the heat of the moment, and at the behest of the police and the forensic liaison nurse, I had gone out to assess someone in their own home without fully considering the legal status of the request.

The warrant the housing association had obtained was under Sec.2 of the Environmental Protection Act 1990. This is specifically for the purpose of servicing or maintaining a gas appliance. Did that give me the power to enter his flat in order to assess him under the Mental Health Act, even at the request of the police? I wasn’t at all sure that it did.

And now I had assessed him, I was powerless to make it even a little bit legal by completing an application and therefore making him “liable to be detained”. This would have then given the police, or an ambulance crew, the power to convey him to a hospital.

In the meantime, Alfred couldn’t be detained under Sec.136 and taken to the Sec.136 suite until a bed was available for two reasons: firstly, he was not in “a place to which the public have access”, as he was most definitely in his own home; and secondly, as the purpose of detention under Sec.136 is for a patient to be assessed for possible detention under the MHA, since he had already been assessed, it would be an abuse of the Act.

He couldn’t be arrested, and then taken to a place of safety, as according to the police, he had not actually committed an offence.

So currently there were no legal powers for the police to keep Alfred in handcuffs, or indeed to remain in his property without his consent.

I rang the duty sergeant and discussed this with her. Since there was no immediate prospect of a bed being available, enabling me to complete an application for his detention, I advised that the police would have no option but to leave Alfred’s flat immediately.

The following day, I was notified that a bed was available. The good news was that it was in a local hospital. It meant that I could complete my Sec.2 application form and render Alfred at last “liable to be detained”.

However, since it was extremely unlikely that Alfred would permit anyone to enter his flat in order to take him to hospital, I would have to obtain a warrant under Sec.135(2), giving the police the power to enter his flat in order to “take or retake” a patient liable to be detained under the MHA.

But at least that would be legal.

How do you define “a place to which the public have access” under Sec.136?

The ambulance or the highway?

There has recently been an interesting discussion on the Masked AMHP Facebook Mental Health Forum concerning whether or not an ambulance could be considered to be “a place to which the public have access” within the meaning of Sec.136 MHA.

Sec.136 permits a police officer who “finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control… if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety”. The person then has to be assessed by an AMHP and a doctor to see if they need to be detained in hospital.

The question is, of course, what exactly constitutes “a place to which the public have access”?

The New Code of Practice (para16.18) says that this “includes places to which members of the public have open access, access if a payment is made, or access at certain times of the day. It does not include private premises, such as the person’s own place of residence or private homes belonging to others”.

Richard Jones suggests that this “probably includes: public highway, public access if payment is made, eg a cinema, public access at certain times of the day, eg a public house.”

The problem with all this is that there appears to be almost no case law at all specifically relating to what constitutes “a place to which the public have access” under Sec.136. As Insp Michael Brown observed:

‘"A place to which the public has access" isn't legally defined. "A public place" is defined - at least five or six different times, depending on whether you're reading the Public Order Act, the Highways Act, the Road Traffic Act, etc., etc., etc.’

These definitions, and other case law relating to various Acts of Parliament, may assist in providing guidance. I consider some of these in an earlier blog post on this subject. In particular, they examine issues such as whether or not a garden is a public place (yes if it’s a pub garden, no if it’s a private individual’s front garden, however small.) Insp. Michael Brown, on the excellent Mental Health Cop blog, also considers possibly relevant case law at greater length.

But there’s no mention at all anywhere of whether or not a motor vehicle can be regarded as a public or a private space.

The general consensus in the Forum discussion was initially that an ambulance, or indeed any other vehicle, could not be regarded as “a place to which the public have access.”

But I was not so sure.

I took the view that a vehicle (apart possibly from a residential caravan, which although ostensibly being a wheeled vehicle has the main purpose of providing living accommodation for an individual) could not be considered to be a “place” at all. On that basis, the important and defining factor was the location of this vehicle.

Inspector Michael Brown usefully enlarged upon this:

“If you were found sitting in your own car and all other criteria were met, the police could use s136. If you were the passenger in another vehicle that was stopped by the police and the other criteria satisfied, they could use s136. I don't see how being in a vehicle alters this consideration massively - you get few legal protections in a car or truck from police activity and those are usually connected to things like powers to search it.”

I would argue that a car is simply a means of moving from one place to another, as is a bicycle, a motor cycle or a pogo stick. Would someone on a bicycle on a public highway be regarded as not being in a place to which the public have access? I think not. The mere fact that a car, or an ambulance, or a bus, has doors which can be closed from inside does not make it a “place” immune from the police exercising their powers under Sec.136.

The discussion moved to considering whether a tent was “a place to which the public have access.” Again, several people regarded the interior of a tent as being a private space.

An anonymous commentator on my blog has said: “I was put on a Section 136 whilst I was asleep in a tent at a festival last summer. I woke up as the police grabbed my ankles to drag me out.”

The writer was understandably annoyed at this rude awakening, but I have to conclude that merely being surrounded by canvas does not make one immune from Sec.136. If that was the case, then your clothing could constitute such a “place”.

Again, it all comes down to location: if the tent is pitched in “a place to which the public have access”, then it is fair game. If, however, it is pitched in your back garden, or someone else’s back garden with permission, then you are not in “a place to which the public have access” and you will be safe from the attentions of the police -- unless they have a warrant under Sec.135.

Now there is some case law about what constitutes a “road”. Alun Griffith (Contractors) Ltd v Driver and Vehicle Licensing Agency [2009] EWHC 3132 (Admin), [2010] RTR 7) established that a grass verge on the edge of a road constitutes part of a public highway, and even if it is behind a crash barrier, it could still be regarded as “a place to which the public have access". So you can’t pitch your tent on the grass of a roundabout with impunity.

There are indeed places that would be universally regarded as “a place to which the public have access”, such as a street, a park, common land, a public house, an A&E department of a hospital, and there are places that would be regarded as private places, such as a private home, a private garden, a hospital ward, an office, etc.

There are also places which are more difficult to categorise, such as a communal area in a block of flats, or a residential barge or houseboat. But the overarching rule in this case is “location, location, location”.

I am confident that the police can happily continue to detain people under Sec.136 found in a tent, a bivouac, a car, a van, an ambulance, or a canoe, providing that object is in “a place to which the public have access”.

And the only thing stopping them would be a complaint to the courts resulting in case law that defines once and for all what actually constitutes “a place to which the public have access”.

Legal Black Holes: What Do You Do When There Isn’t a Bed?

Is the Mental Health Act falling down a legal black hole?

There are horrible yawning legal black holes in the Mental Health Act. Unless they are properly addressed, they could make it impossible to practice within the law. And they’re mainly to do with the current national bed crisis.

The other day I went out to assess Joe. He was a young man who was living with his parents. I assessed him with two psychiatrists, and we decided that he needed to be detained under Sec.2 for assessment. The two doctors completed a joint medical recommendation. However, as I knew that there was no bed available, I was unable to complete my application. I therefore had no choice but to leave Joe where he was with his father.

A few minutes later, his father called to say that Joe had packed a bag and left. The father reported him as missing. I discussed the situation with the local police, explaining that he had been assessed under the MHA and it was considered that he needed to be detained, but could not be as no hospital had been identified.

The following day, I received a call from the duty police inspector at an international airport. He told me that Joe had been apprehended as he was about to board a plane to Manila in the Philippines. He was now in their custody, detained under Sec.138 MHA. Sec.138 relates to patients who are liable to be detained under the MHA but have absconded.

I had to tell him that Sec.138 did not apply, as he was not actually detained.

There then ensued an interesting discussion about the patient’s legal status.

Because in law, as a Sec.2 application had not been completed, he was not a detained patient, nor was he “liable to be detained”. The police were therefore holding him illegally, until such time as I was able to obtain a hospital bed and put the name of a hospital on my Sec.2 application form.

There is a well documented nationwide crisis in the provision of mental health services. Both Andy McNicoll of Community Care and the BBC have been documenting the extent of this crisis in recent months.

One consequence of the lack of suitable psychiatric beds is its impact on the ability of AMHP’s and other mental health professionals to fulfil their legal duties, and it is resulting in long delays between assessment and admission, and patients then having to be transported hundreds of miles to hospitals far away from their homes and relatives.

The Health Service Journal, on 14 August 2014, reported that between 2011-12 and 2013-14 there had been an overall cut in funding of 2.3% in Mental Health Trusts. The numbers of  psychiatric beds consequently decreased as follows:

•        2011-12           20768

•        2012-13           20061

•        2013-14           19922

This was at a time of increased demand for beds because of the Recession and cutbacks to public services in general, which invariably has a deleterious effect on the mental health of the Nation as a whole.

They also reported that numbers of patients sent out of area because there were no beds in their locality increased 56% between 2011-12 and 2012-13 to 1,785.

A very recent example is reported here. This involved a known patient who was held in police custody in Norfolk for over 24 hours because there were no beds anywhere within the entire Norfolk & Suffolk Foundation Trust area. He was eventually admitted to a hospital in Brighton, over 160 miles away.

So all this is creating intolerable situations, in which AMHP’s and the police are finding themselves in a legal limbo.

Let me illustrate this with a Venn diagram. (Mental Health Cop is very keen on Venn diagrams).

First of all, there is the Law.

 

The Law encompasses the legislation relating to people with mental disorders, which includes the Mental Health Act, the Mental Capacity Act, and the Human Rights Act.

And then there is Reality.

Reality is the world in which AMHP’s, the Police, and others actually live.

Here are the two together.

The Law and Reality unfortunately do not overlap perfectly. There is an area of reality which lies outside the law. And that is where Joe, and too many others, find themselves.

AMHP’s and the Police are having to deal with these legal limbos on a daily basis.

Here are a few other real life scenarios that I or my colleagues have had to deal with.

1. David is arrested for affray and is taken to the local police station. It becomes apparent to the custody sergeant that he may be mentally disordered, and requests an assessment under the MHA.

An AMHP and 2 doctors assess David, decide he needs to be detained, but are unable to make an application because no bed is available.
The police have concluded their investigations and have decided to take no further action, and intend to bail him. There is therefore no longer any legal authority to continue to hold him in police custody.
What happens next?

 2. As an AMHP, you’ve completed an application under the MHA, which makes the patient liable for detention. The patient is in the ambulance, on the way to Hospital X, under your authorisation, and you’re following behind.

You then receive a call from the bed managers to say that unfortunately, there is no longer a bed available at Hospital X.

Suddenly, you do not have valid paperwork, and there are no longer any legal grounds to hold the patient.
How do you proceed?

3. As an AMHP, you have made a decision to detain Norman under Sec.3 MHA.

You consult with the Nearest Relative, Norman’s mother, who has not made an objection to the application.

The bed managers eventually find a bed, but it is 200 miles away.
You discuss this with the NR, who wants Norman to be admitted to the local unit, and she now objects.
What do you do next?

There are local initiatives, sticking plaster jobs mainly, to try patch these holes. Our local constabulary have recently issued guidance to the police and AMHP’s in an attempt to address some of these dilemmas.

In Scenario 1, David,  the local advice is as follows. AMHP’s are instructed to write in the custody record:

“I have conducted a full Mental Health Act assessment in the company of Dr --- and Dr ---, and we have determined that [detained person’s name] should be detained under Section --- Mental Health Act. However, at this time there is no suitable bed available and therefore they are not yet formally detained under the Mental Health Act. Every effort will be made to find a suitable bed as a matter of urgency.”

A risk based decision on the continuing detention of the person “outside of PACE and the MHA” should then be conducted jointly with the AMHP and the Detention Officer. These discussions and decisions should then be recorded in the custody record and a decision made “to either continue detention or to bail pending a bed becoming available.”

While I am impressed at this document’s valiant attempt to deal with this dilemma, I must say I am intrigued by the concept of detaining a person “outside of PACE and the MHA”. This can only be a legal Limbo.

And what if a decision is made to “bail pending a bed becoming available”? Surely, if the patient/prisoner is aware that they are bailed, but not yet detained under the MHA, there is nothing to stop them from leaving the premises and potentially disappearing completely off the radar.

In Scenario 2 – what the hell do you do? You can hardly instruct the ambulance to stop on route and drop the patient off at the side of the road.

The Code of Practice does have something to say about this scenario. Para 4.99 states:

“In exceptional circumstances, if patients are conveyed to a hospital which has agreed to accept them, but there is no longer a bed available, the managers and staff of that hospital should assist in finding a suitable alternative for the patient. This may involve making a new application to a different hospital… A situation of this sort should be considered a serious failure and should be recorded and investigated accordingly.”

I think I would be inclined to continue the journey to the hospital, on the basis that they are still at least theoretically “liable for detention”, and then argue the toss once we were there. But the Code does not suggest how the patient may legally be held while another bed is found, and they could conceivably have a case for unlawful imprisonment during that limbo period.

Then there is Scenario 3, Norman.

Under Sec.3 MHA, a patient can only be detained if the nearest relative does not object. The refusal of the NR on discovering there is no nearby hospital would therefore mean that the patient cannot be detained.

It is possible to displace the nearest relative in certain circumstances. A county court can displace the NR if: “the nearest relative has objected unreasonably to an application for admission for treatment” (Para8.6 CoP).

But could that be done in this situation? I think it would be difficult to argue successfully that this particular NR had “objected unreasonably”. After all, would you like your unwell relative being taken many miles away from home, where it would be almost impossible to visit them?

And in any case, the amount of time it would take to make an application to court would make it unfeasible.

Some AMHP’s have suggested that we should refuse to assess a patient at all if no bed has been identified. The problem with this is that it is expressly against the law. Sec.13(1) MHA explicitly states:

“If a local social services authority has reason to think that an application for admission to hospital… may need to be made in respect of a patient within their area, they shall make arrangements for an approved mental health professional to consider the patient’s case on their behalf.”

Having then assessed the patient, if the AMHP is “satisfied that such an application ought to be made in respect of the patient” then they have a duty to make that application.

While an AMHP can decide not to make an application, they cannot refuse a request to make an assessment. The absence of a hospital bed to which to admit the patient does not absolve them of this duty.

So until NHS Clinical Commissioning Groups (CCG’s) are prepared to meet their obligations under para4.75 of the Code (they are “responsible for commissioning mental health services to meet the needs of their areas” and “should ensure that procedures are in place through which beds can be identified where required”) it looks like it’s still going to be left to the poor AMHP’s (and the police) to try to prevent these legal black holes from enveloping everything and finally making the Mental Health Act unworkable.

Where the Police Fear to Tread: Two True Tales of Troublesome Teenage Boys

You may have read my recent blog about difficult situations with teenage girls while working out of hours. While I was having a look in the Masked AMHP’s vault, I came across a couple of incidents from the 1980’s which involved teenage boys, and a certain reluctance on the part of the police to intervene, which I thought I would share.

Sean

One evening I received a call from Charwood Police to attend as an Appropriate Adult under PACE (The Police & Criminal Evidence Act) while they interviewed a young boy who had been arrested for a distraction burglary.

Little was known about him, as he appeared unable or unwilling to provide much information. He was from a group of Irish travellers, who had settled on a piece of wasteland on the edge of Charwood. He had been arrested when he and an older boy had been reported for attempting to steal from a Charwood householder.

Distraction burglaries involve one of a pair engaging someone in their garden in conversation, while the other nips into their house and has a search for valuables. The older boy had made off, but the police had managed to catch Sean.

Sean was unclear about his surname, and appeared not to know his date of birth. All he knew was that he was 13 years old. This knowledge could have been influenced by knowing that he could not be remanded in custody if he was under 14.

I sat in on the interview, during which he admitted nothing, and appeared to know nothing. Having gone through the due process, the custody sergeant was keen to dispose of him.

This gave me a problem. As an Appropriate Adult, I had a responsibility for his welfare unless and until I could find an adult, preferably a parent, who could take on responsibility for him.

Sean was extremely vague about whether or not he had any relatives living in the UK. He said that his mother was in the Republic of Ireland, but was unclear as to the whereabouts of his father, or any other relatives. Unless I could find somebody, I would have to accommodate him in a local authority children’s home.

I discussed the problem with the custody sergeant.

“Do you think you could get an officer to pop over to the travellers’ site and see if there’s a relative there?” I asked hopefully.

The sergeant looked at me as if I had suggested that he take Sean home with him at the end of his shift.

“We’d be asking for trouble if a police car turned up there,” he said. “It’d be too dangerous. It’s strictly off limits.”

So what was I to do? I really did not want to place Sean in a children’s home if I could help it.

In the end, I decided I’d have to go there myself.

By now it was quite late in the evening. I cautiously entered the site in my car. The caravans all appeared to be in darkness. Although there were a number of vehicles on the site, there appeared to be no actual people. I wandered around somewhat apprehensively for a little while, then saw a face peering at me through a window in one of the caravans.

When the face saw that I had spotted them, it rapidly withdrew, but I went forward and knocked on the door.

After a pause, the door opened a little and a man looked suspiciously at me.

“I wonder if you can help me,” I began. “Do you happen to know a boy called Sean?”

“I’m not sure about that,” the man answered with a strong Irish accent.

“You see,” I continued. “I’ve got this problem. Sean’s down at the police station –“

“I don’t know anything about that,” the man interrupted.

“The police have finished interviewing him and he’s ready to be released. I’m a social worker, and unless I can find a relative, or at least a responsible adult who can take charge of him, I’ll have to put him into care in a children’s home.”

The man looked at me silently, considering what I had said.

At last, he said, “I’ll tell you what, you bring this young lad down here and I’ll see if I can find anyone who knows him and can take care of him.”

I went back to the police station, picked Sean up, and brought him back to the site.

The man opened the door of his caravan and examined the young boy for a moment.

“You come and get in here, son” he said to Sean at last.

“Yes, Dad,” Sean replied sheepishly, and slipped inside.

Sam and Stuart

It was late in the afternoon on an August Bank Holiday Monday when I received another call from Charwood Police. This time they had two 13 year olds who had been found by a passing police car hitchhiking down a quiet country lane. They said that they’d been threatened, and were in fear of their lives.

That August Bank Holiday weekend there had been a New Age Travellers Festival on a rural site a few miles outside Charwood. These two boys were there with the father of one of them.

 

New Age Travellers were particularly prevalent in the 1980’s and early 1990’s. They were mainly itinerant, travelling from one place to another fairly aimlessly in ramshackle convoys of old buses, ambulances, vans and other vehicles that had been converted into somewhat makeshift mobile homes, especially during the summer months, when they would move from one free festival or country fair to another.

They were essentially the tail end of the 1960’s/1970’s Hippy movement. Having had some pretensions to being a hippy in my teenage years, before getting a haircut and getting a job as a social worker, I had some sympathy for them.

But these boys were making allegations that could amount to child abuse. Their story was that they had been wrongly accused of a misdemeanour by some sort of ad hoc hippy parliament, and were escaping from some dreadful, but unspecified punishment.

Clearly, I was going to have to do some investigation and try to get to the bottom of it, otherwise I would have to place them in a children’s home, at least until the local social services office could sort something out the following day.

“Have you made any attempt to find the father?” I asked the duty sergeant.

“I expect he’ll be on the festival site,” the sergeant said.

“Yes, I know, but have you sent any officers out to try and find him, so we can find out what’s actually going on?” I had an inkling of the reply I would receive.

“I can’t send any of my officers out there,” he said. “Far too dangerous. Asking for trouble.”

So it looked like I would have to make my own investigations. Again.

I drove out to the site. By now the festival had finished, and many of the attendees had left, or were packing up.

There was nobody managing the entrance, so I drove over several fields that had been used for the festival until I reached a group of tents and vans. A few people were milling about, or just sitting round campfires, cooking or smoking.

I saw a man with long hair and a beard standing at the mouth of a yurt.

“Hello,” I said hopefully. I explained briefly who I was. “Do you know a couple of young lads called Sam and Stuart?”

“Yes I do,” he replied a little grimly. “Do you know where they’ve got to?”

I explained the situation to him.

“Come inside,” he said and ushered me into his yurt. It was quite a comfortable and surprisingly roomy space, with a potbellied wood burner in one corner, and a few beds which also stood in as seating. He said that he was Sam’s father, and Stuart was with them with the permission of his parents for the duration of the festival. Now the festival was over, they would be returning to another part of the country.

He told me to sit down, while he got the nominal leader of the group.

He came back with a pleasant looking middle aged woman. She explained that Sam and Stuart, far from being the innocents they were claiming to be, had actually been caught stealing minor items from others at the festival.

The habit of the group when a member had contravened one of their few rules (stealing was one of them), was to convene a meeting, confront the offender with their misdemeanour, and then suggest some sort of restitution. In the case of Sam and Stuart, their appointed job was to help to clean up the site. They had not wanted to do this, so had decided to run away.

There really did not appear to be any reason to put Sam and Stuart into care. The best solution was to return them to the traveller group, and they could then go on their way.

I took the father with me to the police station, where the boys looked rather forlorn, but not in any way fearful.

After getting some fish and chips from a local Chinese, which was open on the Bank Holiday, I took them all back to the camp and went on my way.