I said about eighteen months ago, that once the Mental Health Act was amended to unambiguously allow the use of s136 of the Act in any place that was not someone’s home, we’d see police officers considering its application in police custody areas, for a range of reasons. This post is mainly for police officers and mental health professionals working in or around police custody during criminal investigation. If others want to understand some of the legal issues within the post, see some of the other resources on the BLOG to understand the Police and Criminal Evidence Act 1984 (PACE) or the amendments to the Mental Health Act 1983.
This post is about when, if ever, a criminal suspect should be released from detention whilst under investigation, in order to be diverted to the mental health system. There are two scenarios I have in mind, broadly speaking –
There are a few version of this second idea, varying in terms of the timing at which the decision is taken to suspend PACE and implement s136, but for the ease of initial explanation, let’s just take the broad idea.
For what it’s worth, I think there is merit in giving the consideration to these things, because they do have the potential to offer a form of solution to certain historic problems, even if it is a short-term solution. But that’s not what this post is actually about! – this is about the problems opened up, especially where officers are too quick to push for this; and especially where the grounds for doing so are actually not met.
The majority of people who are taken to police custody who are then identified (on whatever basis) as having some kind of mental health condition are not then assessed under the MHA for potential admission to hospital. So first things, first: the fact that someone is thought to have some kind of mental health condition should not mean we suddenly start issuing urgent bail from custody, suspending criminal investigations and shouting for a Place of Safety. Apart from anything else: the grounds for using s136 in these circumstances would usually not be met; and for most people, it would be a complete waste of time anyway: they’d soon be discharged with little more than a letter to the GP.
The number of people assessed under s136 who are then identified as requiring specialist mental health services (which would include any admission to hospital), is a usually less than half. Most people assessed under the MHA are not admitted to hospital and any mental health care they require can be organised by Liaison and Diversion Services (LaDS) in custody – 85% of the population of England is covered by a LaDS. So for those who are arrested and taken to police custody and may be lawfully detained there under PACE, a good LaDS can ensure the healthcare needs of people under arrest are met unless the person needs to be ‘sectioned’, in which case they would need to call upon an AMHP and Doctors to undertake the statutory MHA assessment,
There is also a practical reality here: if the police start shouting for s136 for any arrest where the suspect says they have depression, the Place of Safety system will soon grind to a halt, because in some areas it isn’t exactly free-flowing to start with! Areas usually have a finite capacity in their PoS system and police forces do need to be aware that the history of s136 is a perception by many that the power is over-used already, this could potentially make that even worse. Section 136 isn’t about getting complicated suspects out of custody, not least because that suspect may indeed be criminally responsible for the offence they are alleged to have committed and natural justice may demand there still be the kind of CJ disposal that anyone else would receive for similar conduct.
First obvious point: if you are going to even think about an approach that means someone is released from police custody and detained under s136, you need to ensure a couple of fairly obvious things.
Putting the these things together, you will usually need a collision of the two circumstances: a genuine difficulty in further justifying detention under PACE; along with a healthcare situation believed to be sufficiently serious in its own right to justify the use of s136. The exception to this, of course, is where someone is so ill, it is a medical emergency, they are unfit for detention in police custody and need to be urgently transferred to A&E.
Otherwise, absent one or both of these factors: we shouldn’t, by law, be thinking of it. And what useful purpose would it serve, even if it were lawful?!
There is no easy dividing line between mental health and crime: not because they are the same thing, obviously not. But because the boundaries each are not easy to define and some behaviours at the edge of each are overlapping: simultaneously demonstrative of a serious mental health condition and a contravention of a country’s criminal code. Public policy tends to suggest we should approach the overlaps and in the UK this is by arguing that we should only criminalise people for more serious offences or where broader public safety is at stake.
So the police have an important role to ensure balance in the application of public policy:
Does it get more interesting or more complicated than this in ANY area of public policy?! << I have to admit, I don’t think it does. As Professor Jill Peay says, professionals operating at the interface of mental health and criminal justice are undertaking some of the most complicated work of any individuals in those professions. But this also means is vitally important stuff: these decisions can be the sorts of things, in extremis, that contribute to suicide and homicide, so they should always focus the mind carefully and be subject to sober judgement.
We need to think REALLY carefully about the potential for us to take premature decisions: if we’re shutting someone out of immediate access to the mental health system because they are alleged to have offended, is that a proportionate response to the alleged offence and how detrimental may this be to their health? If we’re shutting someone of the criminal justice system because they have a mental health condition, is it one which is sufficiently serious to require urgent assessment ahead of any other consideration about an offence they may have committed and this risk this poses?
All cases on their individual merits.
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