Compare and contrast the following two pieces of law –
The bold is my emphasis – does it matter that the apparent purpose of one of these Place of Safety orders is interview AND arrangements, whereas the other is interview OR arrangements? … is this a distinction without a difference, or could it be crucial to something?! Both seem to imply the purpose of removing someone to a Place of Safety and we often think of 135(1) as being “like s136 but after a court warrant in someone’s own home”, but does this pedantry amount to anything real?
Since the MHA amendments took effect at the end of last year, it has become possible to use s136 MHA in police custody. For example, if officers have arrested someone for shoplifting and it only becomes apparent that the person may have serious mental health problems after they are detained in custody, the police can now take a view on whether to bring the criminal investigation to a halt (temporarily or otherwise), and use s136 in the custody area before removing someone to a Place of Safety. The question has arisen about whether this is lawful IF the person in custody has already been assessed under the MHA is, for example, simply waiting a bed. Does the detaining officer have to have it in their mind at the time of using s136 that both parts of the ‘purpose’, as outlined in s136(2), as required?
Imagine a situation in someone’s home where services had assessed them under the MHA and decided that admission was required. If they had entered the premises under a s135(1) warrant, made their decision and then hit a problem that no bed was available, the warrant would allow removal of the person to a Place of Safety, whilst that bed search is carried out – this is “with a view to making an application”. That phrase not being a part of s136 does this change anything?! Maybe … this linguistic precision (or pedantry – depend on your view!) has certainly been deployed before to suggest that once an MHA assessment has occurred, police officers cannot then use s136. I’m not sure it’s as simple as that; so let me show why.
Imagine our assessment in private premises had not involved a s135(1) warrant or the police … an AMHP, two DRs and a CPN had attended a patient’s home where either they or their spouse had allowed access and an MHA assessment has occurred. The view has been formed that an application will be made and they bump up against the ‘lack of beds’ problem. Let’s imagine an all-too-real development, which I known several times in my own operational experience, that the patient becomes concerned at the prospect of admission and leaves their home, implying or even openly stating they will harm themselves. 999 call to the police, to report an immediate high risk missing person. Are we seriously saying that if the officers find him, no bed having yet been found or MHA application made, that they cannot use s136 MHA to immediately safeguard someone who is at immediate risk.
Of course, not.
I realise, obviously, there are differences between my almost-hypothetical missing person and someone in police custody who has been assessed and is awaiting a bed, but both situations give rise to the same legal question: is it unlawful to use the power outlined in s136(1) because of the supposed purpose of the section, as outlined in s136(2). If the answer to that is yes, then it is also yes for our hypothetical missing person; if not, then it is still no in custody – it’s the one, or the other.
The difference in reality tends to be, that in the missing person situation, everyone is agreed on the urgency of acting and that takes priority over supposed legal pedantry; in the custody scenario, the person is safely under arrest – so what’s the urgency?
Remember this: there is no power under the Police and Criminal Evidence Act 1984 – and there never, ever has been – to detain someone in police custody pending a Mental Health Act assessment OR pending the identification of a bed, to which a Mental Health Act application may be made. This may well have been what we did for decades, since PACE was created, in fact – but it’s not what the law says, nor has it ever. Whilst someone who is mentally unwell is in custody, s34(2) and s37(7) of PACE continue to apply and once we reach a decision that the original grounds for detention no longer apply, we must make that decision about whether to release a person (pending further iniquities or without further action) OR to charge them with an offence. To the extent that MHA processes may be relevant to determining whether there is sufficient evidence to charge someone, you may countenance all that happening in parallel with an ongoing investigation.
But it has always been true, that if someone in custody who is thought to be unwell reaches the legal positions outlined in s34(2) PACE or s37(7) PACE, then it applies to them and their liberty, notwithstanding their health issues. If this point is reached before MHA assessment has occurred, people seem quite comfortable that the newly amended version of s136 can apply in police custody and I already know this has happened many times around the country since 11th December last year. But discussion about this happened in the north of England this week, after an MHA assessment had occurred and a view was given to the police that they could not, legally, use s136 MHA because the MHA assessment had occurred.
Can that be right? – I’m not sure it is. The grounds for using s136 are those contained within s136(1), subject to the qualification now contained in the new s136(1A). Because apart from anything else, nothing actually prevents a person who has already been assessed being assessed again after being safely detained. You might question the point of that, because it may seem fairly ridiculous to suggest it, but we know that many patients are assessed twice during their admission process, for a variety of reasons and sometimes it’s as simple as the passage of time since the original assessment.
But go back to the urgency stuff: where a custody sergeant has quite properly concluded on the basis of evidence and public interest that a person should be released from PACE detention, if they are thought to be very unwell and even a serious risk to themselves, if released, then this just creates a new legal problem: it doesn’t justify excessively or even unlawfully depriving someone of their liberty under PACE when we accept the grounds are exhausted.
Section 136 may be used “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 that person to a Place of Safety, etc.. Nothing in here at all, or in subsequent sub-sections, which qualifies this, except that s136(1A) provides the power under s136(1) can only be used in any place which is not a “house, flat or room where the person, or another person, is living; or any yard, garden, garage or outhouse” connected to it.
I think we’ll learn more about how this new aspect of s136 is going to be relied upon increasingly to get mentally unwell people out of police custody, even though they may not have been brought in under s136 in the first place. This will create problems some people haven’t thought much about yet and whether the NHS has capacity to handle this, we’re still not clear. But we should remember, if we check Hansard, that the purpose of the amendments overall is to reduce the number of people going to or staying in police custody when they are mentally ill. What appears to be an unintended consequence of the reform, helps take us further down that route than ever before, but we’ll need the understanding, the infrastructure and so on to cope with it.
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