In the second article for Police Professional by members of the Serjeants’ Inn Police Team Debra Powell and Susanna Rickard, argue that, in wake of recent cases, there needs to be clear guidance for joint working between police and health services for the care of people suffering from mental disorder.
The aftermath of the Sean Rigg inquest, and the focus on the role of the Metropolitan Police Service (MPS) in his death, has again shone the spotlight on the thorny issue of policing and mental health care.
In Rigg, the principal problem was that officers at the scene did not recognise he was suffering from a mental illness. Other recent cases, particularly in R (Sessay) v (1) South London & Maudsley NHS Foundation Trust (2) Commissioner of Police for the Metropolis  EWHC 2617 (QB) and the decision of the European Court of Human Rights in MS v UK (24527/08 (2012) ECHR 804), further highlight some of the difficulties faced by the police in dealing with people where mental health issue has been identified.
Sessay provides an example of how not to help a mentally disordered person who is in their own home. MS highlights the awkward position the police are placed in when psychiatric services fail to take over the care of a person who has been detained at a police station under s.136 of the Mental Health Act 1983 (MHA). Both cases merit careful consideration.
Police officers entered the claimant’s home following a complaint from a neighbour that she was not caring properly for her young child. The officers considered that she was mentally disordered and were concerned for both her welfare and the child’s. They formed the view – reasonably, as the court eventually found – that it was in her best interests to be taken to hospital so that she could be assessed and given help.
They took the child into police protection, and drove the claimant to hospital where she was detained in the s136 suite (one of the locally agreed ‘places of safety’) until a MHA assessment could be undertaken.
The officers did not have a warrant, nor the assistance of an approved mental health professional or a doctor. Therefore, although the officers considered that the claimant came within the scope of s135 MHA, they could not rely on that provision, and as she was on private premises, s136 MHA did not apply. Instead, they relied on s5 of the Mental Capacity Act 2005 (MCA) to justify taking her to hospital in her best interests, as they believed that she lacked the requisite mental capacity to decide for herself that she needed to go to hospital.
This was far from a one-off situation: the evidence at trial was that during a 12-month period, 24 people had apparently been brought to the First Defendant NHS Trust’s places of safety by the MPS under s5 of the MCA, as compared to 714 people brought in under s136 MHA.
On this occasion there was some confusion at the First Defendant’s hospital as to the legal framework under which the claimant was being detained. This arose because, although the officers completed paperwork referring to s5-6 MCA, the medical and nursing staff were under the impression that the claimant had been brought in under s136 MHA. Her compulsory admission under s2 MHA was not authorised for several hours.
The claimant brought proceedings against the police and the hospital, claiming that she had been unlawfully detained.
Use of s5 MCA unlawful – By the time of the hearing, the MPS had conceded that the officers, while entirely well intentioned, had not been entitled to rely on s5 MCA in these circumstances. It was accepted the claimant’s Article 5 and Article 8 rights had been breached, and it was agreed that the Court should make the following important declaration as to the law:
Sections 135 and 136 of the Mental Health Act 1983 are the exclusive powers available to police officers to remove persons who appear to be mentally disordered to a place of safety. Sections 5 and 6 of the Mental Capacity Act 2005 do not confer on police officers authority to remove persons to hospital or other places of safety for the purposes set out in sections 135 and 136 of the Mental Health Act 1983.
When the purpose of taking someone suffering from a mental disorder to a place of safety is to secure an assessment under the MHA or to make other arrangements for her treatment or care, the only coercive powers which can be relied upon are s135 and s136 MHA. However, this should not prevent the police from relying on s5 and s6 MCA to justify taking a mentally incapacitated person to hospital for a different purpose. The obvious example of lawful reliance on s5 or6 of the MCA is where a person lacking capacity requires urgent treatment for a physical condition, rather than for the purposes of assessment or treatment of a mental disorder.
Use of s136 for patient who tries to leave A&E – While the court may not have given the police any positive guidance on how to assist a mentally disordered person in her own home, it did give the NHS Trust some advice on what to do when a patient tries to leave an A&E Department before compulsory admission processes have been completed: call the police and ask them to detain under s136. This is lawful because an A&E Department is a public place. With judicial backing for this approach, can the police service now expect to see an increase in such calls from the NHS? Time will tell.
MS v UK
In this case police officers were called to deal with the applicant, who was behaving in a highly agitated way in public. He was taken to a police station under s136.
It was later discovered that he had seriously assaulted his aunt. A few hours later, the forensic medical examiner (FME) requested a formal assessment under the MHA. This was undertaken and it was advised that MS be admitted to hospital, but a bed could not immediately be found. Police were told by the local psychiatric intensive care unit that it would be unable to admit him, but that there was another clinic that would be appropriate. The same evening, a police officer spoke to a psychiatrist at the second clinic, who stated that somebody would be sent over; in the event, nobody was. The second clinic had believed the applicant would be charged and remanded in custody for assault, and that its assessment would be required only after charge.
By the afternoon of the applicant’s second day in the custody suite, the Crown Prosecution Service (CPS) had concluded there was insufficient evidence to charge him. His behaviour deteriorated over the course of the day: he removed all his clothing, drank water from the bowl of the cell toilet and refused all offers of food or drink from the afternoon onwards.
On the morning of the third day, a psychiatrist and other mental health professionals arrived to assess him. It was noted that he was agitated, shouting loudly, elated and incoherent, and that his naked body appeared to be smeared with food or faeces. It was concluded that he was clearly unwell, but the clinic could not admit him until the following morning, which was after the expiry of the 72-hour limit for s136 detention.
A phone call from the chief superintendent to the clinical director at the clinic resulted in an agreement to admit the applicant that same evening, but the clinic staff subsequently advised that the resources required to admit him would not be available until 8am the following day. Thus it was not until the fourth morning that the applicant was finally transferred in handcuffs to the clinic and admitted, some hours after the expiry of the 72-hour period allowed for in s136.
European Court of Human Rights – The applicant failed in his domestic claims against the NHS Trust and so brought a claim before the European Court of Human Rights for breach of Article 3 of the ECHR, arguing that he had been subjected to inhuman and degrading treatment when inappropriately detained in a police cell during a period of acute mental suffering. The Government defended the claim, arguing that although his mental illness could not be treated during his time at the police station, it was nevertheless a place of safety for him since he was under constant surveillance and would have received treatment for any injury or harm inflicted.
The court noted that the absence of a purpose to humiliate and debase the person concerned could not conclusively rule out a finding of a violation of Article 3. It went on to say that, even though the custody record evidenced real concern on the part of the police to see the applicant transferred to a psychiatric unit as quickly as possible, and that “it is clear the police endeavoured continuously to bring this about” they nevertheless found that his Article 3 rights had been breached by his detention in a police cell in such a state of vulnerability.
The facts of MS betray a wider, systemic problem. The European court expressly praised the police officers – they had done their best to find him a place within the local mental health service and to care for him while he was in their custody.
The problem, and the breach of Article 3, arose due to: (i) inadequate crisis-care provision in the local mental health services, and (ii) miscommunication between the different public bodies. This second issue was also apparent in Sessay, where hospital staff incorrectly believed the detention had been under s136 MHA and was highlighted by the coroner’s court in the inquest into the death of Sean Rigg.
In the wake of these cases it is more apparent than ever that there must be clear and robust, audited protocols for communication and joint working between police and mental health services for the reception and care of people suffering from mental disorder. While it remains lawful to take a person to a police station under s136, it is recognised that police stations are unsuitable: those with mental health problems should be taken to a hospital if there is a s136 suite available.
All BCU commanders should ensure:
- There is a framework or protocol agreed with the relevant local authorities and NHS Trusts governing s136 procedures, identifying designated places of safety, together with contact details for Approved Mental Health Practitioners and acute mental health services;
- All FMEs (perhaps via the organisation that supplies them) understand the demands that may be made of them in the custody suite under s136, and have access to the framework; and
- Duty inspectors, shift sergeants and custody sergeants have confirmed that they are aware of, and know how or where to access, the framework or protocol.
- Protocols alone will never be enough, of course; there must be appropriate training for all officers and there must be adequate resources, but agreeing and publicising the protocols will surely be the first step.
This article appeared in Police Professional on 11 October 2012 and is reproduced with the kind permission of the Editor.