Review of the Operation of ss.135 and 136 of the Mental Health Act 1983 in England and Wales
This article was first published on Lexis®PSL Private Client on 15 April 2014.
1. What are the key sections of the Mental Health Act 1983 that are being reviewed in the consultation?
The consultation is reviewing the operation of sections 135 and 136 of the Mental Health Act 1983. This gives the police powers to temporarily remove people, who appear to be suffering from a mental disorder and who need urgent care, to a "place of safety" so that a mental health assessment can be carried out and appropriate arrangements made for their care.
2. What are the problems with the existing law and its enforcement? And what are the main goals of the consultation?
Questions have been raised about the existing law, in particular whether a police station is an appropriate place to detain people suffering from a mental health crisis, especially young people, and whether the maximum length of detention under sections 135 and 136 (72 hours) is too long.
The consultation is seeking the views of all those directly affected by s.135 and/or s.136 of the Mental Health Act 1983. This includes individuals who have been detained under these section, and their friends, families and carers, police officers, Approved Mental Health Professionals, and Mental Health Trusts. The goal is to make sure that the legislative framework supports getting the right support for people at the right time, by reviewing the evidence to determine whether or not changes to the primary legislation would improve outcomes for people experiencing a mental health crisis.
3. Are there any potential drawbacks to the current legislation?
The Code of Practice to the Mental Health Act 1983 states a police station should only be used for those detained under s.136 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. However the Joint Review in 2013 by Her Majesty's Inspectorate of Constabulary, Her Majesty's Inspectorate of Prisons, the Care Quality Commission and Healthcare Inspectorate Wales to examine the extent to which police custody is used as a place of safety under s.136 found that the use of police custody remains unacceptably high and that it was still being used as a primary or secondary place of safety. Although they had not committed a crime, the Joint Review found that those detained under s.136 who were taken to a police station were generally treated like any other person in respect of the booking-in procedure; risk assessment; and ultimately, being locked in a cell (rather than being taken to another part of the station). It found that the average time that each person spent in police custody was 10 hours 32 minutes. Many of those detained remarked that their experience had made them feel like criminals, and they described many aspects of the custody process as de-personalising. Other studies have shown that rates of detention under s.136 are higher in the black population, that the police station was a frightening environment as a place of safety, that there was stigma attached to its use, and where a person was also a victim of crime this was not always taken seriously.
4. How could the outcomes of the consultation impact:
a) police powers
There is a very good chance that following the consultation the Mental Health Act 1983 will be amended to remove a police station as a place of safety for those detained under s.136 except on a exceptional basis which will be clearly defined in law.
Further amendments may reduce the maximum detention times for those detained in police custody under s.136 - perhaps allowing up to 24 hours in police custody which would be more in line with the detention of those arrested for criminal allegations.
It is also likely that the period of detention will have to be subject to regular independent reviews by both police and health officials to ensure that the detained person can be transferred to a health-based place of safety as soon as possible or that an assessment is carried out at the police station as expeditiously as possible.
The consultation may also result in a police station being deemed to be an inappropriate place of safety for children under 18 years, and in all cases it is probable that the police will be required to record why a person detained under s.136 is at the police station rather than a health-based place of safety.
b) lawyers advising clients in this area?
Lawyers should be aware that the consultation follows the important case of MS v United Kingdom (2012) 55 EHCC 23. This involved an individual who had been detained for some 75 hours in police custody due to delays in completing an assessment of their mental health. The European Court of Human rights found that the treatment of the individual was degrading, and so they had been subjected to a violation of their rights under Article 3 of the European Convention on Human Rights. This means that a successful claim can be brought under Article 3 by an individual who is detained in police custody for a prolonged period, and where the police station is an unsuitable place for them, even where the detention would be lawful under the Mental Health Act 1983.
5. Final comments
This consultation is to be welcomed, although it is long overdue. I have had many clients who have complained of how, although they had committed no crime, they were handcuffed and carted off to the police station in front of their neighbours, and then left in a cell for hours while their mental state steadily deteriorated. The use of the police station as a place of safety is more likely to escalate a mental health crisis, and police officers are ill-equipped to deal effectively with these situations. I look forward to positive changes in mental health legislation being brought about as a result of the consultation, so that those in crisis are assessed in an appropriate environment as quickly as possible.
Tammy Groves, Solicitor
The Mental Health Practice