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 availablea 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 meanwhere a person's behaviour would pose
an unmanageably high risk to other patients, staff or users of
a healthcare settingand 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:
The Royal College of Psychiatrists have very
clearly stated that people who are intoxicated and have a mental
health problem are our business and it is our responsibility to
look after them. So refusing people on the grounds of being intoxicated
with a mental problem must not happen.[46]
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:
I do think there is a pretty profound issue for
Parliament, which is: does Parliament want to enact something
that means that the response to mental illness is the police have
a power to enter a place?[57]
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:
We have a specific issue with this inasmuch that
the power [s. 136] applies to people who are in a place to which
the public have access. Railway lines are a place to which the
public do not have access, so our officers need to remove somebody
from a place of danger, get them to a public place, and then make
that judgment as to whether they need care and control for the
power to be made out and executed.[59]
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
30
Royal College of Psychiatrists Supplementary (PMH0058) Back
31
Q 133 Back
32
Association of Police and Crime Commissioners (PMH0015) Back
33
Q 134. See Department of Health and Home Office, Review of the Operation of Sections 135 and 136 of the Mental Health Act 1983,
December 2014, Review Report and recommendations, pages 43-49 Back
34
The Care Quality Commission surveyed the provision of health based
places of safety in Jan-Feb 2014 Back
35
Care Quality Commission, A safer place to be, October 2014 Back
36
Department of Health and Home Office, Review of the Operation of Sections 135 and 136 of the Mental Health Act 1983,
December 2014 Back
37
Q 22 Back
38
Care Quality Commission, A safer place to be, October 2014, 1.3 Back
39
Centre for Mental Health, Review of Sections 135 & 136 of the Mental Health Act,
December 2014 Back
40
Care Quality Commission, A safer place to be, 1.4 Back
41
Care Quality Commission, A safer place to be, 1.4 Back
42
Q 27 Back
43
Q 121 Back
44
Q 121; Care Quality Commission, A safer place to be, 5.3; HMIC
and Care Quality Commission, A Criminal Use of Police Cells. The
1983 Act defines "mental disorder" as "any disorder
or disability of the mind" (s. 1). This includes learning
disabilities and autistic spectrum disorders, although the Code
of Practice states that, in the case of a person with a learning
disability, they cannot be detained unless their learning disability
"is accompanied by abnormally aggressive or seriously irresponsible
conduct on their part". Back
45
Q 272 Back
46
Qq 174-175 Back
47
Liaison and Diversion pilots are discussed in the section on police
and health service collaboration NHS England (PMH0055), para 13 Back
48
Q 138 Back
49
Q 28 [MacAttram] Back
50
Q 281 Back
51
Paula Reid, Mental Health and Criminal Justice, What can we learn from liaison and diversion in the USA?,
July 2014. The Police Foundation (PMH0028) Back
52
Q 172 [David Davis]; Welsh Government (PMH0034) Back
53
Q 96 Back
54
Q 116 Back
55
See also the Department of Health and Home Office, Review of the Operation of Sections 135 and 136 of the Mental Health Act 1983,
and the Centre for Mental Health, Review of Sections 135 & 136 of the Mental Health Act,
Dec 2014 Back
56
Q 116 Back
57
Q 275 Back
58
Q 227 Back
59
Q 274 Back
60
British Transport Police (PMH0025) Back
|