The Policing and Crime Act 2017 (PCA) received Royal Assent on 31 January 2017. This legislation makes provision across a very broad range of areas affecting police and crime, including in relation to police complaints and conduct. We are told the mental health provisions of the PCA are on course to come into effect in May 2017 and guidance will be published in due course to support these.
Police powers under the Mental Health Act 1983
The PCA makes some changes to police powers under the Mental Health Act 1983 (MHA). We outline some of the key changes below.
Places of safety
Someone’s home will be able to be used as a place of safety for sections 135 and section 136. We had heard anecdotally that before the Policing and Crime Bill, sometimes people were taken to their home as a place of safety by the police under their section 136 powers. This amendment formalises and regulates those situations, allowing for the home to be used as a place of safety provided that person consents. If they share the property, the police must also seek the consent of the other occupier.
The Home Office is producing some guidance about when it might be suitable to use someone’s home as a place of safety, since there will be some instances when this is highly inappropriate. We are hopeful that the guidance will ensure that a decision to use the home as a place of safety is made sensitively and that people are given information about their other options.
Police cells may no longer be used as places of safety for children, and the PCA seeks to limit the use of police cells as places of safety for adults. There will be regulations setting out more detailed information about when a police cell might be appropriate. Mind worked hard to have the use of police cells as places of safety banned and it’s our position that it is always better to take someone to a health-based place of safety for assessment under sections 135 and 136.
Extension of police powers
Police powers under section 136 will extend beyond the public place and can now be used anywhere that is not that person’s private home, including shared walkways and gardens or the workplace, for example.
Someone may also now be kept at a place of safety (and not solely removed). Broadly this applies across both sections 135 and 136. This means that under section 135 someone may be kept at home for a mental health assessment if it is appropriate and they consent. Under section 136 the requirement of being found has been removed, so someone may be kept at a police station potentially where they are no longer liable to be detained under PACE. The police officer must consult a registered medical practitioner, registered nurse or approved mental health professional if practicable before removing someone to or keeping them at a place of safety under this section. We are pleased about the introduction of this duty to consult since it increases the likelihood of someone being linked to appropriate mental health support without the use of compulsory powers, although we query how regularly this may reasonably be practicable to do.
The PCA also amends the length of time someone can be detained under sections 135 and 136 of the MHA, from 72 hours to 24 hours. The Royal College of Psychiatrists guidance for commissioners says that assessment should be started within three hours, unless there are clinical grounds for delay. The PCA provides that this new 24-hour time limit may be extended by up to 12 hours, amounting to a maximum total of 36 hours in detention. This extension is only available if the condition of the person has made it not possible to assess them in the original timescale.
Local health and police partners will need to work closely together on how to effectively implement these changes. Mind hopes this will contribute to increased use of health-based places of safety more uniformly across England and Wales.
‘State detention’ in the Coroners and Justice Act 2009
The PCA amends the definition of ‘state detention’ in section 48 of the Coroners and Justice Act 2009 (CJA). It removes those lawfully deprived of their liberty, by the Deprivation of Liberty Safeguards (DOLS) or by court order from the Court of Protection, from falling within the meaning of ‘state detention’ in the CJA. The effect of this is to remove them from the automatic provision of a coroner’s investigation into their death if they die during detention.
This amendment was tabled in order to support bereaved families whose relatives near the end of their lives often died under DOLS and whose deaths were being automatically investigated by the coroner, even though their death might have been expected and from natural causes. This meant families were not able to mourn the body of their loved one or hold a funeral, and were often denied access for several months. In this regard, this amendment is extremely sensitive.
However, we are very concerned about the unforeseen consequence that people who are voluntary patients in a psychiatric hospital, lawfully deprived of their liberty by DOLS or court order, who do not have capacity to consent to admission to hospital for care or treatment, will no longer fall into the meaning of ‘state detention’. This means there will be no automatic coroner’s investigation into their death if they die while in hospital, unless the death was unnatural, violent or the cause was unknown. This is extremely concerning.
Substantive safeguards are needed for those detained by the state, wherever this occurs and irrespective of who is detained. At least one NHS Trust has been found to have failed to investigate over 1,000 deaths of people in their care. Automatic investigations are crucial to find the facts behind someone’s cause of death, and have been hugely important in highlighting failures in someone’s care.