It is government policy that people with mental health problems should receive treatment and care from health and social services. The law allows for this to continue, or begin, if someone becomes involved with the police (also see Mental health and the courts). This information describes the mechanisms that enable this to happen at any stage in the criminal justice system. See Explaining legal terms for a glossary of the terms used.
This information is selective in the areas it covers and is therefore not a substitute for a statement of the law or for legal advice.
Public funding (legal aid) is usually available to pay for professional advice from a solicitor. This is means-tested (it depends on your income and savings) for most purposes, but not for advice in the police station. You can instruct a solicitor of your own choosing or there will be a duty solicitor available. For advice from a solicitor who has knowledge of mental health law and issues, contact Community Legal Advice or The Law Society which have lists of qualified solicitors. (See Useful contacts.)
If I commit an offence, will the police arrest me?
This very much depends on what the offence is and what they know about you. If the offence is a minor one, the police may use their discretion and do nothing. They may choose to refer you to health and social services, if they think it more appropriate, and they may ask you if you want assistance in being referred. This may be done quite informally, if you are happy to co-operate. If the offence is more serious, the police may arrest you and take you to the police station for questioning.
Can the police detain me for any other reason?
If you are in a public place, the police also have the power to detain you if they think you have a mental disorder (section 136) and that you are in immediate need of care and control. They must take you to a place of safety , preferably a hospital, but possibly a police station. You can be held there, until an Approved Mental Health Professional (AMHP) and either one or two doctors have assessed you, for up to 72 hours. This power cannot, at present, be used to detain you if you are on private premises. They can move you from one place to another within this period; for example, from a police station to a hospital for the assessment.
Are the police involved in mental health issues at any other time?
The police may also be involved if you are in a private place on your own and not able to care for yourself, or living with someone else, and it is thought you are not being taken care of properly. An AMHP can obtain a warrant under section 135 from a justice of the peace, if evidence suggests you are in need of assessment. Police and health workers can remove you to a place of safety for up to 72 hours, for a full assessment. Again, you can be moved during this period to complete the assessment. If an assessment is to be carried out under the civil part of the Mental Health Act 1983 (see Civil admission to hospital), the police may act as an escort for professionals involved. Although this does not mean you have committed a criminal offence. The AMHP organising the assessment should usually be in charge of the assessment and direct police in their involvement.
Who can help me at the police station?
If you are taken to a police station under any of the above powers, you have the same rights as anyone else detained at the station. This includes the right to have a solicitor with you.
You can choose to have your own solicitor there or ask for the duty solicitor. The police must help you get a solicitor. Remember, it does not cost you anything to have a solicitor at the police station, and you are entitled to a solicitor whether or not you have done anything wrong.
What will the solicitor do?
The solicitor is there to look after your rights while you are detained at the police station. They will talk to the police to find out if there is enough evidence to justify detaining you and whether you are likely to be charged with an offence. They will advise you about being interviewed and help you to understand what is being said about you.
The solicitor will be present at the interview, if you want them to be, and will speak to the police during the interview if they are being too aggressive or if you do not understand what is being said.
If I have a mental health problem, should I tell the police?
That is up to you. The police have a responsibility to ensure you are safe and well while you are in their custody. If you feel distressed, you can tell the police and they should do what they can to help you. The police should take into account your mental health problem in the way they deal with your case. You can also discuss this with your solicitor.
What must the police do, if they think I have a mental health problem?
There are several things the police must do if they realise, or are told, you have a mental health problem. Firstly, they must contact an Appropriate Adult (see below), and they should not interview you about an alleged offence until he or she can be with you.
Secondly, the police must contact a doctor. This may be their own doctor, who is called the Forensic Medical Examiner (FME) or police surgeon, and he or she will most likely be a general practitioner (GP). The police have been advised by the Home Office to arrange for a psychiatrist to act as FME when mental health is involved. Therefore if you would rather a psychiatrist examined you, do ask for one. On occasion, there may also be a Community Psychiatric Nurse to assist the FME.
What will the doctor do?
The doctor will decide if you have a mental disorder. If you do, the police must not question you without an Appropriate Adult. The doctor will also advise the police whether you are well enough to be questioned about the offence (even with the Appropriate Adult present) and whether you are well enough to remain in the police station.
What you tell the doctor is up to you. If you feel distressed in the police station and would rather be questioned at some later stage, or if you feel you need to be admitted to hospital, then tell the doctor. She or he will decide whether you are fit to be detained in custody. If you are not, then the police must ensure you are admitted to hospital, or possibly, that you go home.
Who is the Appropriate Adult and can I choose who they are?
The Appropriate Adult can be a member of your family, a mental health worker or some adult independent of the police. The appropriate adult cannot be the solicitor. The police may ask you who you would like to attend.
You can tell them who you prefer and feel most comfortable with. The police will decide, in the end, and will probably contact the person who can arrive at the police station the soonest.
What will the Appropriate Adult do?
The Appropriate Adult has several roles. First of all, he or she should help you get a solicitor, if one has not been made available to you.
The Appropriate Adult will ask you how you are and if there is anything you need to make you comfortable and at ease. If the police have not called a doctor, then the Appropriate Adult will request that the police call one.
He or she will help you to communicate with the police. For this reason, you must take advice from your solicitor about what you say to the Appropriate Adult, because they may tell the police something you would rather remained confidential between your solicitor and yourself.
If you are questioned by the police about an alleged offence, this must be done in the presence of the Appropriate Adult, who should advise you and tell the police whether they think the interview is fair or not. They will, for instance, decide whether or not you understand the police questions and the answers you give, and whether you agree with the police because you feel you ought to rather than because it is the truth. They are not, however, present to persuade you to answer questions and must respect any decision you have made not to answer questions, with or without legal advice.
What will happen after questioning?
Again, this depends on the nature of the offence you are suspected of having committed. The police may deal with very minor offences by giving you a ‘caution’, particularly if they know you have a mental health problem. They can do this only if you admit to the offence; you must take a solicitor’s advice before you consider this course of action. There will be a record kept of any caution given, which will be referred to if you are before a criminal court for another allegation in the future. If the police decide that the offence is serious, or that there is a risk that you will re-offend, you may then be charged with an offence.
Will I have to stay in the police station?
As mentioned before, if you are feeling distressed and particularly if you feel you may harm yourself, you can tell the police, who must ensure that you receive any care you need (see above). This may involve the attendance of a doctor at the station and, possibly, admission to hospital.
When they no longer have authority to detain you, the police must release you. If you are released, you may be required to return to the station at a later date for questioning, or to appear before the magistrates’ court. This is known as bail. This bail may be with conditions; for example, to reside at a particular address. The police must consider giving you bail, but may refuse for several reasons. For instance, they may do so if they think you need protection, or they have not obtained your name and address, or they think you will fail to return for questioning or to go to the magistrates’ court. If you are refused bail, the police will keep you in custody and must bring you before the magistrates’ court as soon as possible.
If the police are considering refusing bail for one of the above reasons, they may give it if you are referred to health services and are offered a bed, whether informally or formally, under the Mental Health Act 1983.
If I am admitted to hospital, will charges be dropped?
Not necessarily. If the police do not caution you and instead bring charges, they will pass a file to the Crown Prosecution Service (CPS) and tell them that you have a mental disorder.
What will happen next?
If the police refer your case to the CPS, the prosecution may be ‘discontinued’. (See Mental health and the courts) The CPS has the power to halt the prosecution if it is not in the public interest to continue with it. This may happen whether you are admitted to hospital or not. However, the more serious the offence is, the more likely it is that the prosecution will continue; for example, if you are alleged to have attacked someone – even if you were a hospital patient at the time.