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

Arrest and Detention

A mentally disordered offender may come to the attention of the police through a referral from a member of the public, friend or relative; in the process of the police responding to an incident; as a result of their investigations or through a formal referral from a specialist agency.

The police should consider each individual on a case by case basis, weighing up the seriousness of the offence against the severity of their mental disorder and their perceived culpability. There may be a number of different outcomes following first contact with a suspected mentally disordered offender:

• No offence has been committed; there is no concern about the individual's mental health and no further action is required.

• A minor offence has been committed and the individual is released with a caution (provided that the detainee understands that they have committed an offence).

• An offence may or may not have been committed, but the person is mentally unwell and it is not in the public interest either to arrest the individual or detain them. They can safely be returned to their home or carer.

• An offence has been committed which is serious enough to warrant immediate arrest prior to any other action (e.g. subsequent detention).

• The individual may or may not have committed an offence but is judged to be seriously mentally disordered and is detained under the Mental Health Act 1983.

The arresting officer is required to make a rapid assessment of the individual and this requires basic mental health awareness, knowledge of local mental health services and an awareness of their legal powers. The police have considerable discretion when dealing with a suspected mentally disordered person and need to decide what the overriding concern is at that point – whether the law has been broken and/or whether the individual is in need of care and control.

In Custody

The custody sergeant is responsible for the detainee from the time they arrive at the police station, and will make decisions about them on the advice of other professionals. If the detention has been brought about under Section 136, the first course of action will be to arrange a mental health act assessment. If the detainee is suspected of having committed an offence, the police will seek the advice of the Crown Prosecution Service (in the usual manner) to decide whether the detainee should be prosecuted(11). Before an interview can proceed the police must be confident that the individual is fit for questioning and ensure an appropriate adult (AA) is present if the detainee is 'mentally vulnerable'(12).

The police essentially perform a gate keeping role in relation to mentally disordered offenders, which means that the advice given to custody sergeants from health and social services is critical, both in terms of whether the criminal justice or mental health route is appropriate, but also with regard to options within the mental health system, such as compulsory admission to hospital or a referral to a Community Mental Health Team. Coordinating a number of different professionals is complex and time consuming and various multi-agency schemes (e.g. the Criminal Justice Mental Health Liaison Scheme or the Police Station Assessment Scheme) have been developed to facilitate this process. Such partnerships bring together mental health professionals, such as Community Psychiatric Nurses or approved Social Workers, to help the police identify people with mental health problems, offer advice on the best course of action, or facilitate the gathering of information. Their main aims are usually to ensure that, where appropriate, offenders are diverted away from the criminal justice system at the earliest opportunity and/or that relevant information is gathered and made available to the courts in the event of a prosecution. However these schemes are by no means universal: there are approximately 120 in England and Wales of which 79 operate from police stations(13).

Following detention, there are a number of different outcomes, all of which need to secure the right balance between the seriousness of the offence and the culpability of the offender. The three main outcomes are:

1. There is insufficient evidence to justify detention, or it is not in the public interest to charge the individual. In this case the custody sergeant will have no concerns about the individual's mental health, or the individual does not meet the criteria for detention under Section 136 of the Mental Health Act 1983.

2. The individual is released on bail (under Section 47/3B of PACE) and asked to return to the police station at a later date, or released on bail but with certain conditions imposed under section 37/7a, while police gather further evidence.

3. The individual is found to be seriously mentally disordered and detained under the Mental Health Act 1983. In this instance, either no prosecution will be pursued or the person will be charged and a hospital order sought under Section 37 of the Mental Health Act 1983(14).

As before, detention and assessment under the Mental Health Act 1983 can be instigated at any point after an individual has been arrested or charged.

Notes and References

11. Schedule 2 of the Criminal Justice Act 2003

12. Code C, Paragraph 1.7 of PACE

13. NACRO (2009) NACRO directory of criminal justice mental health liaison and diversion schemes in England and Wales