Quickly exit this site by pressing the Escape key Leave this site
We use some essential cookies to make our website work. We’d like to set additional cookies so we can remember your preferences and understand how you use our site.
You can manage your preferences and cookie settings at any time by clicking on “Customise Cookies” below. For more information on how we use cookies, please see our Cookies notice.
Your cookie preferences have been saved. You can update your cookie settings at any time on the cookies page.
Your cookie preferences have been saved. You can update your cookie settings at any time on the cookies page.
Sorry, there was a technical problem. Please try again.
This site is a beta, which means it's a work in progress and we'll be adding more to it over the next few weeks. Your feedback helps us make things better, so please let us know what you think.
In any given year at least one in four adults in the UK will experience some form of mental ill health. Whether mental disorder is short or long term, its effect on those suffering from it, their family, friends and general community can be significant.
People with mental ill health or learning disabilities often suffer discrimination and stigma because of their condition – from low-level harassment to serious violence and murder. Over-Policing can be as bad as under caring in this regard. Police response to mental health where a crime has not been committed should be a measured one that understands the police response alone can cause discrimination and stigma of persons with mental ill health.
While the vast majority of persons with mental disorder never come to the attention of the police, there will be many occasions on which the police become involved with persons with mental ill health who may be victims, witnesses, suspects, missing or a risk to either themselves or others.
The number of policing incidents tagged as mental health related continues to increase over time.
This document is intended as a consolidated guide to the powers and procedures in place to assist in dealing with persons with mental ill health or learning difficulties.
Terminology relating to mental ill health and learning disability can be complex and changes over time. The term mental ill health is used in this document to include mental disorder, mental illness and mental health needs, together with those suffering mental distress at the time of contact with the police, whether or not formally diagnosed as or accessing mental health services.
Mental ill health can therefore include severe and enduring conditions (e.g. schizophrenia, bipolar affective disorder etc.), and more common problems including depression, phobias, and self harm (including vulnerability to suicide). It includes ‘mental disorder’ as defined in Section 1(2) Mental Health Act 1983, which states:
‘Mental disorder’ means any disorder or disability of the mind; and 'mentally disordered’ shall be construed accordingly. The condition may be either permanent or temporary.
Learning disability, sometimes referred to as learning difficulty or intellectual disability, is defined by Section 1(40) of the Mental Health Act 1983 as:
‘A state of arrested or incomplete development of the mind which includes significant impairment of intelligence and social functioning.’
There are many types of learning disability, ranging from mild to severe. Persons with learning disability may be extremely vulnerable and suggestible, although their condition may not be immediately or readily apparent.
For the purpose of this document the term ‘mental disorder’ includes both mental ill health and learning difficulty and is interchangeable with them unless specifically stated.
The College of Policing define a Mental Health incident as follows…
“Any police incident thought to relate to someone’s mental health where their vulnerability is at the centre of the incident or where the police have had to do something additionally or differently because of it.”
Where this definition is met the force control room should place the incident qualifier ‘Mental Health’ onto the incident. Any niche record where the above definition is met should also be tagged as mental health related.
The police have a common law duty to prevent / detect crime, keep the queens peace and protect life and property. Nottinghamshire Police should therefore only attend incidents with a policing purpose to reduce unnecessary policing of mental ill health, reduce stigma associated with mental health and manage policing exposure to risk for what can be complex health / psychological scenarios needing a health response.
The Police have no duty in law to complete a safe and well check on someone with mental health issues. Furthermore police officers in their training or legal status, are not qualified to say someone with mental health issues is safe or well. There is also no duty of care for police to attend mental health incidents whereby there is no immediate threat to life or limb, where other agencies contact us concerned for the wellbeing of someone with mental health issues they should retain their duty of care and make appropriate signposting / referrals.
Where there is a specific power only available to the police such as s.135 warrants. Then this should be seen as a Policing role and subject to resources / other demands.
Control room staff should take into account the above guidance when deciding to despatch.
Section 136(1) states that:
“If a person appears to a constable to be suffering from a 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-
(a) Remove the person to a place of safety within the meaning of section 135, or
(b) If the person is already at a place of safety within the meaning of that section, keep the person at that place or remove the person to another place of safety…”
A person may be detained for a maximum of 24 hours but an assessment should be commenced no longer than three hours after arrival at the place of safety.
The power can be exercised in any place other than –
(a) any house, flat or room where that person, or any other person, is living, or
(b) any yard, garden, garage or outhouse that is used in connection with that house, flat or room, other than one that is also used in connection with one or more other houses, flats or rooms.
However when a substantive offence may have been committed, it is generally more appropriate to arrest for the offence and convey to a custody suite, rather than detain under Section 136. In such circumstances a mental health assessment can be conducted in custody if required.
As a general rule arrest for an offence should be considered when the arrest is necessary and/or when previous attempts at diversion outside the criminal justice system have been ineffective and an arrest is necessary. Detention under Section 136 should be used if necessary where there are no offences, or where any offences are of a minor nature and do not warrant action within the criminal justice system.
A person detained under Section 136 may later be arrested for an offence, but once arrested for an offence cannot then be detained under Section 136. Officers may also consider voluntary attendance for interview following the outcome of Section 136.
3.1.1 Deciding to use Section 136(1)
Either finding or being directed towards a person with mental disorder in a public place is not enough in itself to detain under section 136. The power to remove requires five conditions to be fulfilled before police act:
The clear implication is that the officer must believe the person or someone else will suffer some kind of harm if they do not take action to remove them. Simply behaving in an odd or unusual way does not necessarily mean they should be removed. The power to remove under section 136 does not require police officers to make a diagnosis of someone’s mental state, but encourages officers, who believe in good faith that someone is mentally ill and requires immediate care and control, to remove them to a place of safety. It is also important to recognise that people who are deaf or who have other disabilities may act in ways that may give the impression they are mentally ill.
*A person must not be persuaded to leave a private place and enter a public place simply to enable use of this power
3.1.2 Guidance to determine if the threshold for Section 136 has been reached.
Simply acting in a way that is different from what might be considered to be normal is not in itself a reason to interfere with a person’s freedom to go about their lawful business. The following considerations will aid decisions about using section 136 to detain an individual who appears to have mental illness. These describe some of the behaviours that might accompany mental illness but might not, on their own, justify immediate removal using Section 136:
The person is engaging in irrational, inappropriate or bizarre conversation or behaviour. Be aware and consider that certain behaviours are normal within the context of that person’s culture e.g. praying out loud in public is a normal accepted occurrence in some religious groups
Ask yourself:
In some circumstances the behaviour of the person may demand immediate action, but where time permits the following information sources can help to assess the need for detention using the power:
Once these behaviours have been noted police officers should then, if practicable consult with a mental health professional (See appendix F for contact information). This will enable the professional to access their system to link the behaviours noted with the person’s known history. This can be useful to either confirm or disprove the presence of a mental disorder but also provide options of the least restrictive measures that could be available as an alternative to Section 136.
Examples when it might not be practicable might include someone on a bridge or walking into traffic where officers have to immediately react and detain giving no opportunity to consult. These examples are fortunately rare. Officers are required to make a note of who they have consulted with or why it was not done.
*If you are considering the use of s.136 in custody following the legal conclusion of an arrest / detention then please see appendix E (Guide to Mental Health Act assessment in custody)
3.1.3 Power of entry and search
Searching premises Section 136(1b) – “for the purpose of exercising the power under subsection (1), a constable may enter any place where the power may be exercised, if need be by force.”
Essentially there is a two stage test to determine if entry can be forced to use S136:
Searching people – Section 136 is an arrest in law, therefore officers have the same powers of search as with any arrest.
The Police and Crime Act 2017 has now added additional search powers to the Mental Health Act 1983.
Criteria to search – This is not a blanket power to search. The officer must have reasonable grounds to believe the person “(a) may present a danger to himself or herself or to others, and (b) is concealing on his or her person an item that could be used to cause physical injury to himself or herself or to others.” The extent of the search is the outer coat, jacket and gloves and there can be no request to extend this to a strip search.
3.1.4 Place of Safety
It is recognised that the preferred Place of Safety as outlined in the Code of Practice should be a designated 136 suite in a hospital:
The Cassidy Suite, 01158 542 202
The Section 136 Suite will always be the Place of Safety other than:
Section 136A – Use of Police Stations as places of safety
(1) A child may not, in the exercise of a power to which this section applies, be removed to, kept at or taken to a place of safety that is a police station.
The Secretary of State may by regulations -
(a) Provide that an adult may be removed to, kept at or taken to a place of safety that is a police station, in the exercise of a power to which this section applies, only in circumstances specified in the regulations;
A child is anyone under the age of 18. An adult is anyone aged 18 and over.
Violent behaviour may be connected to certain mental health conditions and should not prevent acceptance at a Section 136 unit unless unmanageable. Intoxication, whether through drink or drugs, does not in itself present an unmanageable risk and does not preclude acceptance at a dedicated Section 136 suite unless the degree of intoxication etc. is so acute as to require urgent treatment in a hospital Emergency Department.
3.1.5 Procedures under S136
A police officer who is considering the use of Section 136 will have a number of options available:
3.1.6 Police support in Section 136 Suites:
3.1.7 Police support in acute care (medical) hospitals:
Physical health needs must always be prioritised over mental health assessment needs. In a physical medical emergency the person must be conveyed directly to the nearest appropriate hospital Emergency Department irrespective of any mental ill health issues.
3.1.8 Police Station as a Place of Safety
(In the exceptional event that a person detained under Section 136 is taken to a police station):
3.2.1 Mentally Disordered Persons in a home, flat or room where someone lives.
Section136 cannot and must not be used in a home, flat or room where someone resides. A number of other powers can, however, be considered depending on the risks and urgency of the situation. As with S.136 it must be emphasised that if a substantive criminal offence is suspected, the person should be arrested for the criminal offence and taken to a custody suite, where a mental health assessment can then be conducted if appropriate.
The Street Triage Team should be the first option to attend any mental health incident as a secondary resource, when available.
3.2.2 None urgent
Officers and staff may attend incidents or come into contact with persons who, while not presenting an immediate risk to themselves or others, are nevertheless believed to be in need of care or support. In such circumstances details of the person, together with the grounds for concern, should be passed on to the local Social Services department via a PPN. The consent of the person concerned should be obtained before such information is passed on to other agencies unless the circumstances are such that this may not be practicable or we can override consent (e.g. if concerns relate to the level of care and support provided by a ‘carer’ who is present at that time). Officers may also consider advising the person to arrange a GP appointment urgently or get in touch with their community psychiatric nurse if they have one.
3.2.3 Urgent
If an officer or member of staff is dealing with a person on private premises, and that person is believed to be suffering from a mental disorder that requires urgent but not immediate assessment, care and control, the person’s GP service should be contacted with a view to arranging further assessment. If a relative or other responsible person is present or can be arranged it would not usually be necessary for the officer/staff member to remain with the person, pending a doctor’s attendance/assessment unless there was a risk of serious harm to the patient and/or others. Officers can also signpost the person to ring NHS 111, contact the crisis team if they are open to secondary mental health services or voluntary attend A&E (See consultation appendix). Other local options might be available.
If a person refuses to cooperate with attending officers/ambulance staff etc. and there are no powers in place (MHA warrants) to convey the person to a place of safety, then the officer should consider alternative powers e.g. arrest to prevent a breach of the peace (if the criteria is met lawfully).
The provisions of the Mental Health Act and Mental Capacity Act cannot be used to detain persons who may be at risk from physical injury, including overdose, who are able to make their own decisions regarding treatment etc. In such circumstances it is suggested that the consequences of the person’s actions are explained to them and they are requested to sign a pocket book entry to that effect if they are refusing treatment/help. A suggested entry is:-
Officers attending incidents whereby someone clearly has mental health issues and is refusing treatment do not have powers delegated to them (MHA/MCA) to transport/restrain the person. Police officers may use common law powers to assist the ambulance staff, but cannot assume their role.
Notwithstanding the above, police officers have a basic duty of care around the “Preservation of life and property”. When an officer is confronted with a situation whereby they have no powers under the Mental Health Act they need to consider and use their Common Law powers and basic duty as a Constable. If a Health Care Professional (Doctor) details how serious the situation has become then a police officer can and should use their Duty of Care/Common Law powers to assist the Health Care Professional; this may involve control and restraint if necessary to gain compliance.
Officers need to have a real and genuinely held belief that their actions are justifiable / necessary to “save life/prevent serious injury” in order to intervene in the above. If a Health Care Professional or evidence at the scene heightens an officer’s belief that they need to act to save life, their Common Law powers are sufficient. The belief must be based on something tangible e.g. a noose tied to a loft hatch etc.
Example - Officers attend an address whereby a Doctor has asked for police assistance because a subject/patient claims to have taken a large drug overdose (as a means to ending their life). If the Doctor details how serious the consequences are, then the information from the Doctor is sufficient to enable a Constable to use their Common Law power. Where the person loses Mental Capacity then use of this act would be the preferred option (See below)
Where the person would fit the criteria for a Section 136 detention had they been in a public place, and no less restrictive measure are available, then officers should contact the crisis team to discuss options prior to contacting the AMHP Teams to request a Mental Health Act assessment at the address.
Crisis Teams:
All attempts to request support from other agencies in these scenarios should be documented in detail.
3.2.4 Emergency (Mental Capacity Act 2005)
The case of Sessay v South London & Maudsley NHS Trust, (decided in the High Court in October 2011) is the authority for the principle that sections 5 and 6 of the Mental Capacity Act DO NOT confer on police officers authority to remove people to hospital or other places of safety for the purposes set out in sections 135 and 136 of the Mental Health Act. In cases of genuine concern for life Common Law powers (as outlined above) should be considered.
3.3.1 Pre-planned Mental Health Act Assessments
Most Mental Health Act assessments do not require the involvement of the police. On occasion however it may be necessary for healthcare colleagues to request assistance of the police when undertaking an assessment in the community. This could arise either spontaneously, for example where a doctor and/or AMHP is already undertaking an assessment and the patient has become violent, or where an assessment is planned and risk assessments identify a likelihood of violence but the requirements for a Section 135 (1) warrant are not met.
In the event entry is required by health services to undertake an assessment, and it is believed likely that such entry may be refused or risks are identified preventing attempts, an AMHP may also obtain a warrant to enter under Section 135 of the MHA. In such cases police assistance will be required irrespective of the threat level as only a police officer may lawfully execute such a warrant.
In line with the above, there are two standards for referral to the police:
The duties of the police when assisting with pre-planned (community) assessments are:
It is the responsibility of the AMHP to arrange transport of persons detained under these provisions, including the use of an ambulance if appropriate. Police transport must not be used unless the person to be conveyed is so violent that alternative transport is unsafe.
Officers who use the powers contained within S.135 to either force entry, contain within the address or remove to a place of safety are required to complete a Mental Health niche occurrence and person monitoring form.
3.3.2 Risk Assessments
When requests are received in advance to assist at planned assessments, the police should conduct their own risk assessment taking account of information provided by the AMHP. This is necessary to determine the appropriate resources and equipment required. It is good practice for the police to satisfy themselves that the AMHP has made advance provision for transport etc. in the event that the patient is uncooperative etc.
3.3.3 Missing Persons
Persons with mental disorder who are reported missing must be dealt with in accordance with the generic force MFH policy: PD361 Missing Persons Recording and Investigation
OR
The Joint Protocol for Service Users Missing from Hospital or Other Healthcare Setting as appropriate.
In the event mental health service users are reported ‘missing’ by hospital staff, but their whereabouts are known, it should be remembered that the power to detain persons who are AWOL and return them to hospital is held by AMHP’s and hospital staff as well as police officers and that primary responsibility lies with the healthcare agency responsible for the patient. Arrangements for routine collection, and return, including transport, should usually be made by the hospital, with the police only being called on to assist in emergency/high risk cases.
When necessary, Section 18 MHA provides powers to detain and return persons lawfully detained under the Act, although it does not provide a power of entry to detain. If lawful entry cannot be gained by other means, consideration should be given to application for a warrant of entry under Section 135(2) MHA. It should be noted that while a warrant for entry and assessment under section 135(1) can only be applied for by an AMHP, a warrant to enter to ‘retake’ a person already ‘sectioned’, a section 135(2) can be applied for by either an AMHP or the detaining hospital.
3.3.4 Conveyance
National guidance and Codes of Practice dictate that all persons detained under either the MHA or MCA should be conveyed to or between places of safety, hospitals etc. by ambulance.
In the event the police detain a person under either MHA or MCA attempts must be made to secure the attendance of an ambulance to convey that person. Only in the event that an ambulance cannot attend within a reasonable period of time, or risk assessment dictates the use of an ambulance would be unsafe due to the demeanour etc. of the detainee, should police transport be used.
If / when an ambulance is used, the detainee remains in police custody until handed over to the place of safety and should be escorted by the police.
Responsibility for transferring a patient from a place of safety to place of treatment etc. (post assessment) lies with the relevant Social Services Department. The police should not undertake such transport unless the use of non-police transport presents unacceptable risks or delay.
Request for the police to undertake ‘out of county transport’ should only be considered in the event the relevant authority / receiving hospital agrees to meet the costs of such, including overtime etc. for officers if necessary.
The police have no responsibility for the transportation of ‘in patients’ to / from or between mental health facilities, but may (rarely) be asked to assist in unforeseen emergency situations where it is necessary to protect life or serious injury.
3.3.5 Inpatients – Requests for Police Assistance
Ordinarily the police should not be called upon to assist healthcare staff in the management, including the transfer, of a patient presenting as a ‘management problem’. The NHS Trust and other healthcare agencies have a legal obligation to ensure sufficiently trained staff and adequate resources/facilities exist to restrain patients and/or place in isolation.
In the event that healthcare staff are for whatever reason unable to manage a situation, general police duties and powers in respect of preserving order, preventing harm etc. apply. It should be noted however that hospital staff powers to control, restrain and transport patients cannot be delegated to or exercised by the police. Police may use Common Law powers to ‘assist’ hospital staff, but cannot assume their role.
When police become involved, it should be made clear what their role will be at the scene i.e. are we preventing crime / disorder or investigating crime? If we are attending to prevent and restore order then our presence should be for the minimum time possible to allow the hospital to bring in additional staff or measures to de-escalate the situation.
If necessary and appropriate to arrest the patient for a criminal offence normal police powers then apply.
3.4.1 Victims and Witnesses
All victims and witnesses, including those with mental ill health or learning disabilities, are entitled to an equitable quality of service in accordance with the Witness Charter and Codes of Practice for Victims of Crime.
People with mental ill health or learning difficulties are often particularly vulnerable to victimisation or exploitation relating to their condition. This can range from low-level anti- social behaviour and harassment to more serious crime, including murder. All such incidents create alarm and fear and can undermine the confidence in the police and justice system.
Offences motivated by, or showing evidence of hostility based on disability, are classified as ‘hate crime under section 146 of the Criminal Justice Act 2003. Mental ill health and learning difficulties are disabilities within the meaning of that Act.
Research and statistics show that disability hate crime is significantly under-reported and under-identified by the police.
If there is evidence of a disability hate crime or incident, it must be identified as such on the incident log and crime report. Consideration should be given to an ‘Achieving Best evidence Interview’ of the victim at an early stage. It should also be brought to the attention of the CPS as a factor to be considered in charging decisions. In addition it should be highlighted on any prosecution file to allow it to be dealt with as an aggravating factor when considering sentence.
3.4.2 Credibility
It must not be assumed that simply because someone has mental ill health or learning disabilities they are not or cannot be a reliable witness or may not be able to cope with the prosecution and court process. In most cases, mental ill health or learning disability does not mean mental incapacity. As with suspects, there is a presumption of mental capacity unless proved otherwise. Perceptions about the mental capacity of persons with mental ill health or learning difficulties are therefore unfair and inaccurate. They have served to undermine the service and treatment of persons with mental ill health and, in some cases, made them more vulnerable and prone to repeat victimisation and harassment when offenders perceive that the victim will not be believed.
3.4.3 Interviewing Vulnerable Witnesses and Victims
The quality of a vulnerable witness’ evidence is less a function of the witness than of the interviewer. Research has consistently shown that the evidential value of vulnerable witness’ testimony is dependent on the techniques and skills of the interviewer.
It is the case, however, that care must be taken to establish and deal with any indicators of mental ill health at the earliest opportunity. This is necessary, not just because such persons may be vulnerable to intimidation, but as their condition may make them more suggestible and / or they may require assistance or support, including in certain circumstances ‘special measures’. Indicators of concern about victims and witnesses include:
Best practice is to complete the ‘initial needs assessment’ on the reverse of the MG11 Witness Statement to assist in early identification of any relevant issues.
It may be necessary, in some cases to secure the assistance of a ‘responsible adult’ when interviewing or taking statements from persons with mental disability. Care must be taken to treat all victims and witnesses with dignity and compassion. We must not undermine them and we must involve them in any decision-making process, to whatever extent is permitted by their condition.
In certain circumstances it may be necessary to obtain medical advice regarding the capacity to understand / remember what has happened and mental capacity to understand the rules of evidence, implications of prosecution etc.
Further advice and guidance on dealing with persons with mental ill health or learning difficulty can be found in Achieving best evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Using Special Measures.
3.5.1 Mentally Disordered Suspects
The fact that a suspect is believed to have mental ill health or learning difficulties must not preclude full investigation of an offence and should only rarely prevent arrest and / or interview of a suspect.
A healthcare response to such suspects should not be seen as an alternative to criminal investigation or vice versa. In many cases there may be a need for both responses to take place alongside each other.
There is a misconception that arrest, interview and prosecution of persons with mental disorder should not be considered due to ‘mental capacity’ issues and/or the public interest. In reality there is a presumption that, unless the suspect is already detained as an involuntary patient in a psychiatric facility, he/she has the mental capacity to be detained, interviewed and prosecuted.
In some cases prosecution may be in the public interest, even for people already in secure mental health facilities, as it may enable the use by courts of additional terms and conditions, be admissible in applications for release, and to prevent development of a culture whereby it is seen as acceptable, with no realistic sanctions, to behaviour to assault staff, damage property etc.
The presumption of capacity does not preclude use of alternative disposals (‘diversion’ from or within the criminal justice system) where there is sufficient evidence. Care must however be taken in ensuring that sufficient capacity exists to understand the terms and implications of any diversion (be it caution, PND, conditional caution etc) or prevent completion of any terms (in case of conditional cautions, payment of PND etc.). For these reasons the advice of a mental health professional should always be sought when considering out of court disposals.
In situations where officers might consider the use of powers under S136 MHA or the MCA, the person must always be arrested for any substantive offence where there is evidence of such.
3.5.2 Procedures for dealing with Mentally Disordered suspects
(This procedure applies to non-voluntary inpatients in psychiatric facilities)
Wherever practical the police and Trust representatives should liaise and discuss options for investigation of allegations and the most appropriate means of dealing.
If a Trust clinician advises that the suspect does not and will not be fit to be interviewed it may be appropriate to consider no further action. The clinician may offer their opinion regarding the suspect’s ability to know what they were doing at the time. It must however be noted that only the courts can legally find someone “insane”.
If the clinician determines that the suspect is fit for interview, but not to be arrested and detained at a police station, arrangements should be made to interview/RFS the suspect on Trust premises. The preference should always be to interview on Trust premises if possible. The clinician will provide a signed declaration of the suspect’s fitness for interview. Please note that an appropriate adult will be required.
In the event a patient is deemed both fit for interview and detention, a signed declaration will be provided to that effect by a (Trust) s12 approved clinician. Consideration should still be given to the necessity for arrest and, where appropriate, arrangements made to interview the suspect on Trust premises.
In the event an arrest and conveyance to a police station is deemed necessary, the Trust will provide a qualified member of staff to accompany the suspect in the capacity of a ‘Responsible Adult’. This person will assist and advise police officers in the treatment of the suspect and continually assess/review and advise on the mental capacity, welfare and (mental) fitness of the suspect. This person will not act in the legal capacity of appropriate adult; this service will be provided by TAS on behalf of the local authority.
Provided the relevant declaration and responsible adult is provided, there will be no need for the suspect to be seen by an FME/HCP on arrival or prior to interview at the police station.
The doctor providing the declaration of capacity, and the responsible adult accompanying will be specialists in their field and fully aware of the mental capacity and limitations of the suspect. If for any reason there are concerns about the mental capacity/fitness to detain/interview whilst at the police station, reference should initially be made to the Responsible Adult. If the Responsible Adult is unable to address any concerns to the satisfaction of the custody officer, the FME should be contacted. The FME will liaise with the Responsible Adult and, if necessary, the Trust clinician before diagnosing the suspect. The FME may override the advice of the Responsible Adult/Trust clinician, but must fully record their grounds for going against the advice of specialist advisor with an in depth knowledge of the patient.
In the event a suspect needs to be arrested and physically removed as a matter of urgency (for example due to the serious nature of the allegation and/or risks to other patients/staff) the procedures above will apply, but the arrest and transfer of the suspect should not be delayed pending availability of the clinician’s declaration and/or Responsible Adult, which will be sent directly to the police station ASAP by the Trust. In such circumstances, unless the arrival of the declaration/Responsible Adult is imminent, an FME should be contacted to make an initial assessment of fitness to detain/fitness to interview.
(Applicable to persons staying in a psychiatric facility on a voluntary basis)
Such patients differ from those detained under the Mental Health Act in that they are free to leave Trust premises and are not already in lawful detention. There is a presumption that, if the person has not required detention under the act, he/she will be (mentally) fit for detention and interview by the police.
Procedures for dealing with voluntary patients are, however, identical to those for MHA detained patients with the sole exception that the Trust will generally not provide a responsible adult to accompany the suspect should arrest be necessary.
Provided the appropriate declaration has been supplied by a Trust clinician, further reference to an FME on arrival at the police station is unnecessary other than in circumstances outlined above.
In all cases involving a MH inpatient, use should be made of an Appropriate Adult
(Applicable to persons receiving mental health treatment but not staying in a psychiatric facility)
As with voluntary inpatients (above) there is a presumption that such persons have the fitness for interview and are fit for detention.
If an arrest is planned and the suspect is known or believed to be a mental health service user and the suspect’s clinician and/or place of treatment is known, it is best practice for the OIC to liaise with the Trust prior to arrest in order to determine any known requirements and risks. If it is unknown but the suspect is believed to be suffering with mental ill health then a prompt referral to Liaison and Diversion should be made (See consultation contacts).
If an arrest is necessary and the suspect is known or believed to be a service user then the custody HCP or FME should be requested to assess fitness for detention / interview. This is irrespective of the presumption of capacity/fitness irrespective of the presumption of capacity and acts as a safeguard to both suspect and police in event of deterioration of the suspect’s condition since last seen by Trust personnel. The custody HCP / FME assessment should be made in consultation with Criminal Justice Liaison and Diversion based at Mansfield or Bridewell custody, who will advise on their understanding of the capacities and competencies of the suspect. Being a MH service user does not preclude a person from being fit for interview/detention. There should be a presumption that a (none-MHA detained) suspect is both fit for detention and interview unless there are specific grounds for believing otherwise.
The fact that a person arrested for an offence may, at that time, be unfit for interview/detention and/or require detention under the MHA, does not mean that they will not be fit for interview etc. at a later date. In many cases a MHA detention and/or temporary unfitness will not preclude interview/investigation at a later date. Criminal investigations should not automatically be dropped simply because a person is detained under the MHA. Advice of a Trust clinician should be obtained as to the medium to long- term fitness of the suspect.
The HCP, in consultation with Criminal Justice Liaison and Diversion, should advise on the need (or otherwise) for an Appropriate Adult.
(Applicable to persons not currently known psychiatric services or receiving treatment in respect of a mental disorder, but whom the police believe may have a mental disorder).
In the event a person is arrested for an offence, and is believed or suspected to be suffering from mental illness or have mental health issues, a custody HCP must be called to assess his/her (mental) fitness to detain/interview. The principles outlined above apply in respect of presumption of capacity/fitness, appropriate adults and suspension of investigations.
See The role of Nottinghamshire Community Forensic Teams in Custody Suites for guidance of the role of such teams in advising on diversion opportunities and options for some offenders with Mental Ill Health.
In any case where the charging of a person known or believed to be subject of mental ill health or a learning disorder is being considered, the matter must be referred to the CPS. The CPS will require evidence of the suspect’s mental state at the time of the alleged offence, at the time of interview, and fitness for prosecution. The reporting form in The Offence Reporting and Investigation Protocol should contain sufficient information for the CPS. Please also see Guidelines on the prosecution of mentally disordered offenders can be found on the CPS website.
The CPS must also be made aware of any victim or witness believed to have mental ill health or learning difficulties.
When a person experiencing a mental disorder commits an offence, it is sometimes presumed that the offence is linked to the mental disorder. This is often not the case and the mentally disordered offender may then proceed through the Criminal Justice System. It is no more helpful or fair for people with mental ill health or learning difficulties to be ‘labelled’ as unfit to prosecute than it is to assume they are not fit or competent to access the criminal justice system as victims or witnesses.
Advice can be sought from Mental Health Services in the decision-making process around prosecution and of potential disposal options. Mental Health Services will support a Mentally Disordered Offender (MDO) through the Criminal Justice process. Continuation of due process can be helpful in issues of personal responsibility for the MDO, and there are ethical reasons for MDOs having access to the right to justice in a court.
Under certain circumstances it may be necessary to prosecute an offender to allow Mental Health Treatment orders, Hospital Orders and/or other statutory support. This will certainly be the case for serious crimes.
Appendix E should be used as a guide to help with decision making when deciding if it is appropriate to divert suspects from custody to inpatient care. The over-riding principle is that offenders are presumed to be sane in law and therefore accountable for their crimes and that prosecution, especially when necessary to safeguard the public from dangerous offenders outweighs a decision to divert to civil Mental Health Act sections (such as s.2 or s.3 MHA – See appendix F).
Where the offence under investigation is indictable and sufficient evidence is available on the threshold test at the point of detention in custody then remand should be sought so the courts can consider their powers to remand to psychiatric hospital for reports or treatment. Where the offence is either way and there are specific risks to the public then police might also want to remand in order to protect the public. Acute hospitals under civil sections or informal admission do not offer the same protection that a custodial remand offers.
Where a decision has been made for lower level offences or where the threshold test is not met to divert to inpatient care then the following information can assist. A person is not ‘sectioned’ until the AMHP has identified an available bed (i.e. at a named hospital willing to accept the patient) for them to add to their assessment in order to complete the AMHP paperwork. Where a Mental Health Act assessment has taken place and the aim is to place under a section is present but no bed is found then the Mental Health Act provides no legal framework to continue to hold the person. If PACE detention has expired then we should follow NPCC ‘National Escalation Protocol’ to end the detention as a matter of urgency.
Legally, it is the lead doctor from the assessment who is responsible for finding the bed but this is generally delegated to the bed management team or crisis team for that area. It is the responsibility of the AMHP to arrange transport however the responsibility of the NHS area where the patient is registered with a GP to provide the transport provision.
Once a bed has been found and AMHP completes their paperwork then the person is classed as being legally held in police custody under s.137 MHA whilst we await transport. A reasonable wait for transport would be 3 hours, any longer than this should be escalated as an unacceptable delay in police custody and could be deemed as a breach of human rights (Articles 3 and 5). Effective escalation however may provide the legal defence under s.139 of the Mental Health Act or common law defence of necessity however each case would be judged on its own merits. Escalation for transport should be via the AMHP and also the command structure for the NHS Trust who is providing the bed. Nottinghamshire Healthcare NHS Trust who provide service for all Notts patients have a bronze, silver and gold command structure all available by calling 0115 9691300. Our equivalent would be PACE Insp (Bronze), PACE Supt (Silver) and on call chief officer team (Gold).
Transport should always be done by an ambulance but in emergency where cogent reasons exist s.6 MHA allows the AMHP to delegate this responsibility to the Police.
In the circumstance whereby the ‘PACE clock’ is expiring and no bed has been located following a Mental Health Act assessment then a contingency option to use s.136 can be considered. Please see the guidance on appendix E for considerations before using s.136 from custody. Once PACE has expired a review should be conducted at least every two hours whereby s.136 should be continually considered.
Each case should be judged on their own merits but for example where the AMHP / Bed Management provide assurances that a bed will be found within two hours for an adult needing a ‘normal’ acute bed then it might not be in the patients best interests to be subject s.136. Where a patient needs a secure CAMHS (Child) bed and is out of area it would be more predictable that days might elapse before a bed is found, in this scenario s.136 and removal to a health based place of safety would be in the patients best interests.
------------------------------------------------------------------
PS 620:
Dealing with Persons with Mental Health (Consolidated Procedures)
Type of Document:
Procedure
Version:
1.1
Registered Owner:
Head of Crime and Justice
Author/Reviewer:
Anthony Horsnall
Effective Date:
August 2019
Review Date:
August 2021
Replaces Document (if applicable):
PD 399 Procedure on Mental Health
Linked Documents:
Joint Agency Section 136 Mental Health Act
MOU
Mental Health Hospital Agreement
PD 546 Custody Procedure