This Police Foundation Briefing - to be serialised over 4 weeks - looks at Policing Mentally Disordered Offenders - the relevant legislation and guidance, policing problems and other key issues

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About the Briefings

The Briefings series provides an independent assessment of specific aspects of policing in the UK. The series ensures frontline officers and staff in police forces and policing agencies are up to date with legislation, policies and practical approaches to key issues facing modern policing. Topics will include: Stop and Search, CCTV, Tasers, Police Community Support Officers, The Use of DNA in Forensic Policing, Stalking, Intercept Evidence.

Policing Mentally Disordered Offenders

Legislation and Guidance

The Mental Health Act (MHA) 1983 (updated by the Mental Health Act 2007) and the Police and Criminal Evidence Act (PACE) govern the policing of people with mental health problems. Section 26 of PACE allows the police to arrest, and Section 32 permits them to search, an individual considered to be in need of police intervention. An officer may remove an individual deemed in need of ‘care or control’ from a ‘public place’ to a ‘place of safety’ for up to 72 hours, under Section 136 of the Mental Health Act 1983, or secure a warrant to remove an individual from their home or other property, if necessary by force, under Section 135 of the Act. Detention under Section 135 or 136 does not however amount to arrest under criminal law even though the individual concerned may have committed an offence which brought them to the attention of the police.

The Mental Health Act 2007 brings mental health law into line with the modernisation of mental health services, current human rights legislation and the European Convention. Significant amendments in relation to policing include the power to transfer a detainee between places of safety (e.g. From a police station to a hospital) and the power to recall and arrest psychiatric patients subject to community treatment orders. The Act also broadens the definition of a ‘mental disorder’ to ‘any disorder or disability of the mind’ and so includes, for example, sexual deviances. While this should help to ensure that all mentally ill offenders are treated equitably, it also widens the net (i.e. brings more people into the category of mentally disordered), including those whose symptoms might just be temporary(7). It does not however include those who are temporarily disordered because of the influence of drugs or alcohol.

Once a detainee is in a place of safety under Section 136 of the Mental Health Act they should be assessed by an ‘approved clinician’ (a doctor) and an Approved Mental Health Professional (AMHP) who could be a social worker, nurse, occupational therapist or psychologist. The approved clinician and AMHP will decide whether the individual has a mental disorder serious enough for them to be admitted to hospital (voluntarily or otherwise). Changes to the 1983 Act now allow for the individual to be moved from one place of safety to another (during their maximum 72 hour detention) by a police officer, an AMHP or other authorised professional.

Rights of the Individual

Under Code C of PACE 1984, the police must take responsibility for safeguarding the welfare of a mentally disordered person. This includes the right to have an Appropriate Adult (AA) present. The AA can act as an advocate for the detainee during a police interview and can assist with practical and legal matters, such as obtaining a solicitor. If the detainee is experiencing severe distress and is at risk of self-harm, the police must ensure that they receive appropriate care, which may include access to a doctor or admission to hospital. A Forensic Physician or Appropriate Health Care Professional must assess the detainee to determine whether they are fit for questioning and well enough to remain at a police station. This is not the same as a full Mental Health Act assessment and the assessor can be a GP, although a detainee has the right to request a psychiatrist(8).

Guidance

The revised Code of Practice to the Mental Health Act 1983 states that the use of police custody should only happen on an ‘exceptional’ basis, with psychiatric hospitals or Section 136 units, rather than emergency departments, being the recommended option(9).

The Code also states that officers should make contact with the approved clinician and AMHP prior to the detainee’s arrival at a place of safety. Recent guidance from the Royal College of Psychiatrists recommends that detainees should be transported to a place of safety by ambulance to avoid causing embarrassment or unnecessary distress and that the wait for an assessment should not be longer than three hours(10), far shorter than the maximum 72 hours permitted under the current legislation.

Notes and References

7. Discussion with Jill Peay

8. Mind (2008) Mind Rights Guide 2: Mental health and the police

9. Department of Health (2008) Mental Health Act 1983 Code of Practice, Department of Health, The Stationery Office

10. Royal College of Psychiatrists (2008) Standards on the use of Section 136 of the Mental Health Act 1983 (2007)