House of Commons - Policing and mental health

Policing and mental health - Home Affairs Contents

2 Detention under the Mental Health Act

7. The principle police power to detain someone having a mental health crisis is section 136 of the Mental Health Act 1983,[18] which provides that:

If a constable 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, 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

A "place of safety" is defined in s. 135 as

Residential accommodation provided by social services, a hospital, a police station, an independent hospital or care home for mentally disordered persons or any other suitable place the occupier of which is willing temporarily to receive the patient.

Once a person has been removed to as place of safety, they may be detained there (or transferred to another place of safety) for up to 72 hours so that they can be examined by a doctor and interviewed by an approved mental health professional so that arrangements can be made for their treatment or care.

The use of section 136

8. The Mental Health Act 1983 Code of Practice on the use of s. 136 said that police cells should be used as a place of safety only on an exceptional basis, and that a "police station should not be assumed to be the automatic second choice if the first choice place of safety is not immediately available".[19] The table below gives the number of those detained under s. 136 and went to a police cell or to a health based place of safety in the last three years.

People detained under s136 and taken to a place of safety

Year Total Police cell Health

2011-12 25,000 9,000 16,000

2012-13 22,834 7,761 15,073

2013-14 24,489 6,028 18,461

9. Practice on the use of police cells as a place of safety varies considerably between police forces in England and Wales. The table below shows the five forces with the highest number of detentions in police cells under s. 136 and the five lowest. It also shows the number of such detentions in the previous year.[20]

Most people detained under s. 136 in a police cell

Police force 2013-14 2012-13

Sussex 855 941

Devon & Cornwall 765 790

Avon and Somerset 420 646

West Yorkshire 380 673

Hampshire 340 593

Fewest people detained under s. 136 in a police cell

Police force 2013-14 2012-13

Greater Manchester < 5 206

Merseyside < 5 5

Hertfordshire < 5 2

City of London < 5 50

West Midlands 5 50

10. There has been considerable pressure to address the use of police cells and the Crisis Care Concordat commits the Government to a 50% reduction over two years in the use of police cells as a place of safety for those in crisis.[21] Apart from the simple totals, there are further concerns about how s. 136 is applied. A study from 2008 found that the rate of detention of black and ethnic minority people using s. 136 is almost twice that of white people,[22] and the latest data available shows that children are still detained in most police force areas.[23]

11. The use of section 136 of the Mental Health Act 1983 and reducing the detention of people in police cells is widely seen as an indicator of a police forces' performance in relation to mental health, and it has focussed attention on the problem. We support the Government's commitment in the Crisis Care Concordat to see the number of detentions in police cells under section 136 halved in two years compared with 2011-12.

Removing police cells as a place of safety

12. Many submissions, particularly from the police, supported the removal of police cells from the statutory list of acceptable places of safety.[24] Simon Cole, Chief Constable of Leicestershire, and former ACPO lead on mental health, said that the inclusion of police cells on the list was "just plain wrong".[25] In most cases, police cells are highly inappropriate places for someone in a crisis.[26] They are noisy and brightly-lit. If the person has threatened to self-harm then they may have to be strip-searched for a concealed blade. They may be placed in anti-harm clothing. All this can add to the distress.[27]There are examples of people who have died in custody because they were being detained by police officers when they should have been in the care of mental health professionals in a much more appropriate environment.[28]

13. Her Majesty's Inspectorate of Constabulary (HMIC) are monitoring the use of police custody as a place of safety. If there is no significant reduction in its inappropriate use by April 2016, then they will recommend police cells to be removed as a place of safety in the Mental Health Act 1983. The main objection to removing police cells as places of safety has been the lack of health-based places of safety in some areas to be able to care for all those detained under s. 136.[29] There is an issue of cause-and-effect here, with the use of police cells concealing inadequate commissioning by Clinical Commissioning Groups (CCGs). If police stations are to be removed from the list of places of safety in the Mental Health Act, without a parallel increase in the number of health based places of safety, then the total number of places of safety available in a given area would go down. The Royal College of Psychiatrists has said that, in such a scenario, where demand remained the same but capacity was reduced, access to the few health based places of safety may become limited to those in the greatest need. The threshold for access to care could go up.[30] A related objection is that in rural areas, poor local provision can mean the choice is between a health-based place of safety a long drive away or a much closer police cell. There seems to be an assumption that the list of all health based places of safety produced by the Care Quality Commission (CQC) is exhaustive and the only options available—a place of safety could be any suitable place where the occupier is willing to receive the person until the assessment is complete.[31]

14. Another objection is that there may be times when the patient needs to be held in a cell for the safety of themselves and the public. There may be cases where an individual is unmanageable in a health environment. Submissions from those who were unsure about removing the use of police cells as a place of safety entirely tended to support a reduction to only "exceptional circumstances".[32] Defining exceptional circumstances has proven problematic in the past but there is broad support for there being more clarity around what it does mean—where a person's behaviour would pose an unmanageably high risk to other patients, staff or users of a healthcare setting—and not just because no adequate NHS care was available.[33] Furthermore, if the explicit reference to a police station as a place of safety was removed from the Act it would not completely preclude the use of police cells in exceptional circumstances. It could still fall under the definition of "any other suitable place the occupier of which is willing temporarily to receive the patient". The Government review of s135 and s136 did not come to a definitive view as to whether police cells should be removed from the Mental Health Act as a specified place of safety. It recommended:

Ensuring that police cells can only be used as a place of safety for adults if the person's behaviour is so extreme they cannot otherwise be safely managed.

15. We recommend that the specific reference to a police station should be removed from the definition of "places of safety" in s. 135(6) of the Mental Health Act 1983. We recognise that there are concerns over the lack of health-based places of safety that exist in some parts of the country, particularly rural areas. However, this proposal has been under discussion for some time now and commissioners should have started commissioning appropriate place of safety provision before now. All areas need to do so, and be able to demonstrate that they have made progress by July 2015. The Government should immediately re-issue guidance to police forces and health trusts defining the exceptional circumstances in which police cells may be used as places of safety. The presumption should clearly be the health facility not the police cell.

16. The Government's own review of s. 136 recommended ensuring that police cells can only be used as a place of safety for adults in situations where the person's behaviour is so extreme they cannot otherwise be safely managed. Following the general election a new government should set out what they will do to ensure this happens if it will not amend the Mental Health Act 1983.

Provision of health-based places of safety

17. A health-based place of safety is generally either part of a mental health unit in a mental health hospital or on an acute hospital site, or part of an A&E department in an acute hospital. A recent survey by the CQC found that there were 161 health-based places of safety in England.[34] The majority (81%) are in mental health hospitals or (4%) part of an acute hospital's mental health services. A quarter of health care providers told the CQC that they did not believe there were enough health-based places of safety in their area.[35] (Note two thirds of respondents to the Home Office review of s. 136 said that police cells were used because of a lack of health-based ones.[36]) Not all the places of safety listed are adequately staffed, nor are they all open 24 hours a day,[37] enough for the CQC to remark that "occasionally, the stated opening times are theoretical."[38] The Centre for Mental Health found that staff for many s. 136 facilities are from other wards, so there is pressure for them to return to other duties, and yet some CCGs did not appear to take this pressure on staff into account.[39] The vast majority of places of safety have capacity for only one person, and one in ten units told the CQC that they turned people away at least once a week because the place of safety was occupied.[40] At times, if there is no space, the patient waits outside in a police van.

18. The lack of health-based places of safety directly contributes to the number of people who end up being detained in a police cell.[41] Inspector Michael Brown, Mental Health Co-ordinator at the College of Policing and author of the Mental Health Cop Blog, told us that, in the West Midlands, they had gone in two years from a situation where they had zero provision of health-based places of safety to a situation where 98% of people went to health-based places of safety. This was because those who commissioned services in the West Midlands understood and became committed to dealing with the issue. He said there was a need for NHS commissioners to recognise the need for sufficient places of safety, open 24-hours a day, seven days a week, and fully staffed.[42] This commitment and understanding is not replicated in all parts of the country.[43]

19. We commend the work by Inspector Michael Brown, and others who have championed the cause of mental health within the Police. His work online has been particularly impressive.

20. It is clear that too many NHS Clinical Commissioning Groups are failing in their duty to provide enough health-based places of safety that are available 24 hours a day, seven days a week, and are adequately staffed. CCGs must not only acknowledge local levels of demand and commission suitable health-based places of safety, they must also design local backup policies to deal with situations where places are occupied. Relying on the police to fill the commissioning gap not only imposes non-negotiable, external costs on forces, but it increases the risk to highly vulnerable patients. We recommend that the Department of Health, together with the Home Office, issue clear guidance to CCGs about the appropriate number of health-based place of safety places, having regard to local circumstances, within three months.

EXCLUSION FROM HEALTH-BASED PLACES OF SAFETY

21. Access to some health-based places of safety is restricted by informal exclusion criteria. This might include cases where the person is aggressive or resistant, is under the influence of drugs or alcohol, is under the age of 18, has a history of violence, has committed a criminal offence, or has a learning disability rather than a mental illness.[44] Some NHS trusts are reluctant to carry out mental health assessments of people who are from outside their home area. Mark Smith, Head of Suicide Prevention and Mental Health, British Transport Police gave an example of a case where he had taken someone to A&E to be treated for their physical injuries from a suicide attempt, but the patient was then initially refused a mental health assessment at the mental health unit next door.[45]

EXCLUSION DUE TO INTOXICATION

22. It is relatively common for people with mental health problems who come into contact with the police to also have problems with alcohol or drug use. However, the NHS is often reluctant to take responsibility for these patients. When asked why this happens, Dr Mary Jane Tacchi, Special Advisor on Crisis Care to the Royal College of Psychiatrists, told us that, historically, there has been a "feeling" that the Mental Health Act did not cover people who were intoxicated. She said this was incorrect and that:

One of the difficulties, she went on to explain, was that it was not possible to carry out a mental health assessment until the patient was sober and it was not clear where the patient should go until they sobered up.

23. Patients often present with complex, multiple problems. Initial data from the Liaison and Diversion pilots show that, of the adults passing through with mental health, drugs or alcohol issues, 50% are experiencing more than one of these problems.[47] The NHS should be prepared to deal with patients presenting with multiple problems. When they are turned away, they are likely to come back in a worse state later on.[48]

24. The NHS would not turn away a patient with a physical illness just because they were intoxicated. People with mental health problems have exactly the same right to NHS care as everybody else and it is shocking that patients are excluded from health-based places of safety on the basis of informal exclusion criteria. The guidance that people with mental health illness should be treated in a mental health facility needs to be repeatedly reinforced.

Alternative Places of Safety

25. A place of safety may include a local authority care home, an NHS or private hospital, an independent care home or, as we have already noted, "any other suitable place the occupier of which is willing temporarily to receive the patient". We heard support for the use of community-based places of safety where people could go in a crisis, including ones that addressed the specific needs of black and ethnic minority communities.[49] We heard support for the use of other NHS facilities, such as GP surgeries.[50] There are places of safety designed specifically for intoxicated patients to sober up, or 'dry out', before they can be assessed in the US,[51] and similar examples have been trialled in parts of the UK and may be considered by the Welsh Government.[52]

26. We note that the Government review of sections 135 and 136 said they would explore alternative places of safety. The fundamental reason for a place of safety is to keep someone safe until they can have a mental health assessment and a judgment can be made as to their future treatment. Where there is a clear gap between demand and provision, then we agree that alternatives should be considered. Anywhere used as a place of safety must adhere to relevant guidance and be able to secure the confidence of patients and their families. In particular, the staff, especially if they might be called upon to restrain someone, should receive validated training.

Public and private places

27. Section 136 can be used only in "places to which the public have access." Where a person who is believed to be unwell and in need of assistance is in a private place, the police must rely on section 135 of the Mental Health Act 1983. This requires them to seek a warrant from a magistrate giving them power to enter the premises where the person is believed to be and remove him or her to a place of safety. The warrant can only be applied for by an approved mental health professional (AMHP) and, when acting on the warrant, the police must be accompanied by an AMHP and a doctor.[53] In a crisis situation, time might not permit the police to call on a mental health crisis team and a justice of the peace before the need to act, so they have found ways of getting around the problem, for example, by arresting someone on suspicion of a minor offence to enable them to be moved.[54]

28. We received proposals to suggest changing the law so that police could enter private premises, if they were led to believe that someone was in need of care, to enforce s. 136 powers.[55] Michael Brown pointed out that other countries, such as the Republic of Ireland, Canada and Australia, do allow some form of intervention in a private place.[56] Simon Cole said he understood the frustration of those who wanted the law to be changed, because of the time spent waiting for warrants to be sworn, but he did not support a change. He said:

At the moment the AMHP has to go to a magistrate to get a warrant. If the law changed, there is a risk that if the law was amended to allow the police and only the police to enter private property, then AMHPs might find it easier to call the police in order to gain access.[58] In either situation, the police might not necessarily be needed, except to execute the warrant.

29. There is a further issue around people found on private premises that are not a private home, in particular on railway property. Mark Smith of British Transport Police explained:

His proposal was to amend the law so the power to detain under s. 136 was extended to circumstances which involve trespass, so including railway tracks and other places such as tall buildings, which may be accessed by people seeking to take their own lives.[60] The Government has agreed to extend the provision so it would apply anywhere but a private home. This would extend its application to railway lines, but also to private vehicles, hospital wards, rooftops of buildings, and hotel rooms.

30. We agree with the proposal to amend the Mental Health Act so that the powers of s. 136 could be used anywhere other than a private home. This would give the police power to deal expeditiously with people on railway lines and in high places to which the public do not have access. We believe that extending the range of settings in which the power could be used to include private homes would be a step too far. Extending police powers must be done with caution, as it is important that this does not reinforce the need for police involvement in mental health cases, as we believe it is important that it should be kept to a minimum.

18 The 1983 Act was amended in part by the Mental Health Act 2007. Back

19 Department of Health, 2008, Mental Health Act 1983 Code of Practice, para 10.22 Back

20 Health and Social Care Information Centre, Inpatients formally detained in hospitals under the Mental Health Act 1983, and patients subject to supervised community treatment: Annual report, England, 2013/14, October 2014 Back

21 The Mental Health Crisis Care Concordat is a national agreement between services and agencies involved in the care and support of people in crisis. It sets out how organisations will work together better to make sure that people get the help they need when they are having a mental health crisis. It was signed by 22 national bodies in February 2014. See http://www.crisiscareconcordat.org.uk/ Back

22 Independent Police Complaints Commission, 2010, Police custody as a place of safety. Back

23 Health and Social Care Information Centre, Inpatients formally detained in hospitals under the Mental Health Act 1983, and patients subject to supervised community treatment: Annual report, England, 2013/14, October 2014 Back

24 Police Federation of England and Wales (PMH0036) Back

25 Q 230 Back

26 Royal College of Nursing (PMH0014) Back

27 Q 204; Q 216 Back

28 Police Federation of England and Wales (PMH0036); Michael Brown (PMH0022) Back

29 Q 27 Back