Part 4 of the Policing and Crime Act 2017 introduced amendments to police powers under the Mental Health Act 1983. It provides for a police officer to remove, without warrant, a person suffering from a mental disorder to a place of safety if they are in need of immediate care and control. The aim being to have the person's mental health assessed and appropriate arrangements made for ongoing care and treatment.
A place of safety for the purpose of sections 135 and 136 is defined as:
- Residential accommodation provided by a local social services authority under Part 1 of the Care Act 2014 or Part 4 of the Social Services and Well-being (Wales) Act 2014
- A hospital as defined by this Act
- 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 (Mental Health Act 1983, section 135 (6)).
Criticism of the use of police cells as a place of safety for individuals in mental crisis saw the period of detention under section 136 reduced from 72 hours to 24 hours (with a further extension of 12 hours if conditions are met) and the use of police cells restricted under Section 136A and the Mental Health Act 1983 (Places of Safety) Regulations 2017.
Use of police stations as a place of safety
Under section 136A of the Mental Health Act 1983 the use of a police station as a place of safety for those under 18 years is forbidden. The 2017 regulations allow police stations to be used only for adults detained under section 136 where:
- The person's behaviour poses a risk of serious injury or death to the person or others, and
- Because of that risk no place of safety other than a police station can reasonably be expected to detain the person, and
- The person is checked every 30 minutes by a health professional who will remain present at the police station throughout the period of detention.
Aims of the amendments
The aim of the Policing and Crime Act 2017 amendments to the Mental Health Act 1983 were to ensure that a person in mental health crisis was cared for in an appropriate place of safety and that assessment and ongoing care arrangements would be made in a timely manner (Home Office, 2017).
The provisions assume a seamless transition from a place of safety to ongoing care under conditions of detention where necessary. Regrettably, bed availability, even for those in crisis, becomes a barrier to that transition and the reduction in the period of detention under section 136 from 72 to a maximum of 36 hours places further strain on an overstretched system.
Protecting the person's rights
The dilemma of a person held in a police station and unable to move to a mental health unit for urgent compulsory assessment and treatment of their mental disorder was recently considered by the courts in Surrey Police v PC [2024].
The case concerned a 26-year-old man who had been arrested over an offence of criminal damage. The arresting officers were concerned about his mental health and took him to the emergency department of the local hospital. He was given a sedative, discharged and taken to a police station where he was kept in a cell overnight. The police remained concerned about his mental health, and his lawful detention under the Police and Criminal Evidence Act 1984 in relation to the offence was due to expire. He was seen by a nurse for the Criminal Justice Liaison and Diversion Service who advised the police to keep him at the station as a place of safety under the Mental Health Act 1983 section 136 because no hospital bed was available.
A Mental Health Act assessment recommended that he should be detained under section 2 of the 1983 Act, but no bed was available and he spent a further night in the cell. He remained very agitated and had to be physically restrained several times. He was given further sedatives. Because a bed remained unavailable the police reluctantly used a further detention under section 136. There is no provision for the renewal of section 136 under the Mental Health Act 1983. To implement a further period of detention using this provision was recognised as poor practice by the police.
With the man remaining in mental health crisis and no immediate prospect of a bed, the police accepted that repeated use of section 136 was not acceptable and sought an urgent application to the High Court to authorise the man's deprivation of liberty until his detention in hospital under section 2 could be implemented.
The man lacked capacity to conduct the proceedings or make decisions about his care and treatment. The application was initially made under the Mental Capacity Act 2005, but the court found that he was ineligible to be deprived of his liberty under section 4A and section 16(2) of the Mental Capacity Act 2005 because he was objecting to his mental health treatment (schedule 1A of the Mental Capacity Act 2005).
In light of the potential immediate risk to his life and limb, the court authorised the deprivation of his liberty under its inherent jurisdiction.
Guidance for future cases
In Surrey Police v PC [2024] the High Court recognised the difficulties the police and health trusts were operating under but stressed the importance of focusing on the man's right to liberty under article 5 of the European Convention on Human Rights (Council of Europe, 1950), which guarantees that no one can be deprived of their liberty, except in defined cases and in accordance with a procedure prescribed by law.
To assist similar future cases the court endorsed the following guidance (Surrey Police v PC [2024]):
- Any such future application to the court should only be made in exceptional circumstances with every effort made to avoid such an application having to be considered by the out-of-hours judge
- If such an application was made or was being considered, it should be brought before the court as soon as possible during normal court hours. This should be done as soon as an issue was identified that there might not be a suitable legal framework for continued detention to take place
- Each public body involved should be a party to the case. This would include the police service depriving the person of their liberty and the health trust that would commission the bed and also the local authority that provided the approved mental health professional as part of the Mental Health Act assessment
- The application to the court should be supported by evidence, ideally in the form of one statement, which explains the relevant chronology, the steps taken to find an alternative placement, what care and support the person would receive or had received while in police custody, and the relevant legal framework
- If the application includes a request to authorise physical or chemical restraint, the legal basis of that restraint should be set out clearly, as well as the underlying factual and medical evidence, and any details of the nature of any such restraint
- The Official Solicitor, whose role is to promote and represent the interests of vulnerable people before the courts, should be alerted in good time prior to any application being issued
- The relevant public bodies involved in the application must also consider in advance of any application to the court how the person who was deprived of their liberty would be enabled to participate in the proceedings. This might include instructing the Official Solicitor, a litigation friend or an advocate to support the person.
Conclusion
The well-intended and welcomed changes to the use of police stations as places of safety for a person in mental health crisis and the reduced detention period under section 136 of the Mental Health Act 1983 have been frustrated by the continued bed crisis in the NHS. This has created a gap in the law where a person detained under section 136 of the 1983 Act in a police station is unable to move to the specialist care identified during a Mental Health Act assessment because a bed is unavailable, and the provision that allows for their lawful detention has expired.
The High Court, in Surrey Police v PC [2024], has held that in such cases an application should be made to the court for authorisation of the person's continued deprivation of liberty either under the court’ inherent jurisdiction or the section 4A of the Mental Capacity Act 2005
To assist those involved in managing such applications the High Court has endorsed guidance to be followed when preparing the application.
KEY POINTS
- The use of police stations as places of safety and the duration of detention in a place of safety is limited under the Mental Health Act 1983
- The aim of these limitations is to ensure timely and seamless transition from a place of safety to appropriate care and treatment under the Mental Health Act 1983
- Such seamless transition can be frustrated by the continued bed crisis in mental health care and the person might be unlawfully deprived of their liberty as a result
- The High Court has endorsed guidance to be followed where a person's detention in a place of safety might exceed the permitted period of detention