The deprivation of liberty whilst in police custody
In the case of Surrey Police v PC and others [2024] EWHC 1274 (Fam), the High Court considered an application to authorise the deprivation of liberty of a person in policy custody, and what approach public bodies should take where such person requires assessment under the Mental Health Act 1983, but no hospital beds are available.
Background
On 23 April, PC was arrested by Surrey Police (“the Police”) regarding an offence of criminal damage. The arresting officers had concerns in respect of PC’s mental health, subsequently taking him to a hospital operated by Surrey and Sussex NHS Healthcare Trust (“the Trust”). PC was assessed and given medication by a psychiatric liaison nurse employed by the Trust, who suggested his mental state be assessed over the next 24 hours, given the suggestion of drug use. PC was deemed medically fit to be discharged and was taken to police custody. Whilst the Police raised concerns about the circumstances of PC’s discharge from hospital, the Trust responded that the correct pathway was for PC to be assessed by the Criminal Justice Liaison and Diversion Service (“CJLDS”).
The Police remained concerned about PC’s mental health the following morning. He was seen by the CJLDS nurse, who contacted the Approved Mental Health Professional (“AMHP”) (pursuant to s.114 Mental Health Act 1983 (“MHA 1983”) at Surrey County Council (“the Local Authority”). The AMHP did not arrange an MHA 1983 assessment as they were advised that PC was not fit to be assessed. The Local Authority suggested that he remain in the police station as a place of safety under section 136 of the MHA 1983. The first period of time under section 136 began at 10:44am on 24 April.
The Police subsequently advised the Local Authority that PC’s detention under the Police and Criminal Evidence Act 1984 would expire at around 12:30pm, following such time there would be no legal framework under which to detain him. The Police noted their “very real concern” that PC was “clearly having a mental health crisis”. The Local Authority suggested that PC be transferred to a Health Based Place of Safety (“HBPoS”) as soon as one was available. By 2pm on the 24th there were still no beds available at the Trust, and the police nurse was becoming increasingly concerned. The Local Authority stated they did not receive any update regarding PC’s presentation, nor were they advised that he could be assessed under the MHA 1983.
Later that day the AMHP and psychiatrists attended the custody centre, with both psychiatrists recommending that PC be detained under section 2 of the MHA 1983. However, there was still no bed available for him at the Trust. By 7:46pm It was known that there may be an issue in respect of the legal framework that would enable PC to remain in police custody until a suitable bed was found.
PC was described by police as “unmanageable”. At 6:30am on the 25th of April the custody sergeant reviewed PC’s ongoing detention and found it to be “the only reasonable place for him to be held until the appropriate services facilitate[d] their duty of care”. Following this, a further period under section 136 was implemented.
There were discussions as to whether an application to court would be necessary, but none of the public bodies alerted the Official Solicitor.
On the evening of the 25th of April the Police made an urgent out of hours application to the High Court (“the Court”) to authorise the deprivation of PC’s liberty in police custody, since the second period of detention under section 136 was due to expire. The application was initially made seeking orders from the Court of Protection, however, due to the urgency of the situation and the short period of time before a bed became available, it was appropriate to make orders under the inherent jurisdiction of the High Court, who authorised the deprivation of PC’s liberty. The matter was to be returned before the High Court the following morning. The Official Solicitor joined the application as PC’s litigation friend.
Decision
At the hearing, the Official Solicitor raised their concern that PC was evidently vulnerable yet had been left in a police custody suite with inadequate care and support. The Official Solicitor noted that in The Mental Health Act 1983 (Places of Safety) Regulations 2017, the circumstances in which a police custody suite may be used as a place of safety were limited, yet in this case none of the public bodies showed any apparent urgency or significant concern about the situation.
Mrs Justice Theis endorsed the guidance advocated by the Official Solicitor for future cases of a similar nature, setting out the following:
- Any such application should only be made in exceptional circumstances. Every effort should be made to avoid such an application having to be considered by the Out of Hours judge.
- If such an application is made, or considered, it should be brought before the court as soon as possible during normal court sitting hours.
- Each public body involved in the circumstances of the deprivation of liberty should be joined as a party to the proceedings and/or given sufficient notice (preferably during office hours) that such an application is going to be made and the court will consider if they should be joined as a party. In PC’s case, that would have included the Local Authority, the Trust and the Police.
- The application should be supported by evidence, ideally in the form of one statement, which explains the relevant chronology, the steps that have been taken to find an alternative and what care and support the person will receive/has received whilst in police custody and the relevant legal framework.
- Should the application include authority for physical or chemical restraint the legal basis of that restraint should be set out clearly, as well as the underlying factual/medical evidence as should details of the nature of any such restraint sought.
- The Official Solicitor should be alerted in good time prior to any application being issued.
- The relevant public bodies involved in the application must actively consider in advance of any application being issued how the person who is deprived of their liberty will be enabled to participate in the proceedings. If this is to involve the Official Solicitor acting as litigation friend or advocate to the court consideration must be given by the public bodies as to how to provide the Official Solicitor security for her costs.
The High Court concluded that, as they had the most experience, the Local Authority should have taken a more proactive role, particularly considering their statutory responsibilities and the growing uncertainty about the applicable legal framework. The Local Authority should have supported the Police in bringing an application to the court in a timely way, and its decision not to assess PC under the MHA 1983 due to supposed intoxication was not in line with its responsibilities under the Care Act 2014[1] or its positive obligations under Article 5 of the ECHR. The Court further ordered the Local Authority to pay the Official Solicitor’s costs, departing from the usual rule on costs.
You can read the full judgment here.
Comment
This case provides a graphic illustration of the contrast between “black letter law” (what the law states should happen) and “law in action” (what actually happens). In theory, the MHA 1983 provides a framework for taking a person who is suffering from a mental health crisis to a place of safety, assessing that person, and, where appropriate, admitting that person to hospital for appropriate treatment. That this framework does not operate effectively is frequently due to a failure to abide by the timescales set out in the Act, such failure often being caused by an inability to identify a hospital that is willing to admit the patient.
The guidance provided by Mrs Justice Theis is not only relevant to the particular situation that arose in this case; it is also relevant to situations where there is disagreement between health and social care agencies about what form of treatment or care is appropriate for a patient. In particular, a patient might be said by health professionals not to require hospital treatment, yet the aggressive or suicidal behaviour of the patient is said by care professionals to render that person unsuitable to be placed in a care home. If necessary, making an application to court can assist in breaking the stalemate.
How can Blake Morgan help?
Blake Morgan has significant experience in assisting with mental health, mental capacity and safeguarding legal issues. Please do get in touch with Richard M Jones or Eve Piffaretti if you need advice on the Mental Health Act 1983 or Mental Capacity Act 2005.
[1] For Wales, the Social Services and Well-being (Wales) Act 2014 would apply in the same way.
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