MSc/ Postgraduate Diploma in Forensic Mental Health Studies
The University of Birmingham
MSc and Postgraduate Diploma in Forensic Mental Health Care
Course Director Dr M. Humphreys
Module 3. Assignment - The Courts and the Law.
Section (s136) of the Mental Health Act '83 the impact on those individuals arrested by the Police.
Date Due In - 13 June 2005
Word Count -4000
Student Number-663483
CONTENTS
Introduction
Pg3
Statement of the Law and criteria for detention
Pg3-4
The Nominated Place of Safety
Pg4
Individual professional roles-
Pg4-8
The Police
The Doctor
The ASW
Nursing Staff
Statistical evidence
Pg8
Management of aggressive behaviour and risk assessments
Pg8-10
Factors, which need to be considered when, determining the outcome of the assessment and decision making process and follow up responsibilities
Pg8-10
Information leaflets for service users on rights and procedures
Pg10
Conclusion and recommendations to improve future practice
Pg10
REFERENCES AND GLOSSARY OF TERMS USED.
Pg 10-14
Section 136 of the Mental Health Act '83 the impact on those individuals arrested by the police.
Introduction
This assignment will critically analyse a group of mentally disordered offenders, in the context of the relationship between mental health and legal provisions for care under the Mental health Act of 1983 Section 136. The layout for this assignment will be broken down into sub headings ranging from the clarification of professional roles to suggested changes and improvements for future practice. Case studies will be utilised giving different scenarios for practitioners and other agencies being faced with the requirements and understanding of implementing Section 136 appropriately. A uniform procedure for 'good practice' has been set under the MHA 1983 Code of Practice, in terms of compliance from Police, Health and Social Care involvement incorporating the Human Rights Act and Data Protection Legislation (Code Of Practice, 1999). The main emphasis will be of those individuals placed 'arrested' on Section 136 MHA'83 rather than those mentally disordered offenders who may be arrested on suspicion of an offence, as they are assessed separately for mental health needs via the courts while in custody.
Statement of the Law
Firstly it is important to clarify what is meant by the term Section (s136), and the criteria for the detention. The Section 136 of the MHA'83 states, "If a constable finds in a place to which the public have access a person who appears to him to be suffering from 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 interest of that person or for the protection of other persons, remove that person to a place of safety within the meaning of section 135" (Jones, 1999).
"A person removed to a place of safety under this section may be detained there for a period of 72 hours for the purpose of enabling him to be examined by a Registered medical practitioner and to be interviewed by an Approved Social Worker and of making any necessary arrangements for his treatment or care" (DHSS, 1983).
The meaning place of safety is defined in subsection 6 of Section 135 as follows:
"Residential accommodation provided a local social services Authority under part III of the National Assistance Act 1948 or under paragraph 2 of schedule 8 of the National Health Service Act 1977, a hospital as defined by this Act, a Police station or Mental Nursing Home or Residential Home for the mentally disordered persons or any other suitable place, the occupier of which is willing, temporarily to receive the patient" (Royal College of Psychiatrists, 1997.)
Criteria for Detention
To detain a person under Section 136 of the MHA a constable will carefully consider the following criteria to satisfy the law and best practice.
. A Public Place- this is where the public has access and not private premises.
2. Evidence of Mental Disorder- the officer should note what is said and done by the person, together with their appearance and demeanour. The officer should rule out alcohol or illicit drug use first before looking at mental state. If there is clear evidence to show the person needs to be seen by a doctor or other health care professionals then this should be sought. (Rodgers & Faulkner, 1987).
One of the main reasons for officers placing individuals on s136 is that of there being clear evidence that removal to a safe place is in their own interest or to protect others.
Nominated places of safety
Individuals who are detained under s136 MHA should be taken to a nominated place of safety, which is nearest to where they are found. This ensures that appropriate assessment and medical assistance is made available as quickly as possible which reduces the time the individual is held in police custody. In Coventry, police stations are classed as nominated areas of safety. However, the Code of Practice states that "as a general rule it is preferable for a person thought to be suffering from a mental disorder to be detained in a hospital rather than a police station" (Code of Practice, 1999).
Ambiguity still remains about the legal interpretations of the provisions of s136, which needs to be rectified (Ogundipe & Knight, 2001). One particular survey found that in six police force areas there were 200 incidents involving people with mental health problems every day, however, the exact figures are unknown due to the lack of adequate recording (Mental Health and social Exclusion Unit, 2004). According to the independent police complaints commission (IPCC) about half of deaths in custody involve people with mental illness, according to a report by Community care "a disturbing figure given that 38 people died in custody in 2004" (Community Care, 2005). Problems arise as police officers do not have the experience and training to deal with this situation and police cells are not designed in such a way as to provide a suitable or therapeutic environment. (MIND, 2003).
Professional roles
The Police
The police respond initially to concerns raised by members of the public regarding to an individuals disturbing behaviour in public places. Once the individual is in custody his/her own Doctor (GP) or Forensic Medical Examiner (FME) will be contacted. The Police officer should then complete form A of the monitoring form, which records details of the individual and the circumstances in which they were found. The form should be handed over to an ASW to complete if the FME requests input. The police are involved in many mental health referrals, not just those involving Section 136 of the Mental Health Act '83, which allows them to arrest disturbed people in public places. Research has shown that the police are inconsistent in their use of this section and detain a higher proportion of Black people under it (Bhui & Sashidharan, 2003). When asked about African-Caribbean people's entrance into hospitals on a section, in a minor survey carried out, consultants responded that it was usually either through contact with the police, a general practitioner or the casualty department, indicating that they would be placed on either a Section 136 or Section 4. In contrast, Cole et al (1995) found that ethnic status did not determine whether the police were involved. The significant factors associated with compulsory detention in this study were as follows:
Living alone
the absence of GP involvement and
the lack of a relative /friend discussing access to appropriate services.
Under Section 95 of the Criminal Justice Act 1994, the Home Secretary has a duty to publish annually any information that will enable criminal justice agencies in England and Wales to help prevent racial discrimination. Ethnic monitoring of key police activities e.g. arrests, stop and search, became mandatory for all police forces Commission for Racial Equality (1997).
In the 1980's several studies showed that Black people were more likely to be detained under section 136 ...
This is a preview of the whole essay
Living alone
the absence of GP involvement and
the lack of a relative /friend discussing access to appropriate services.
Under Section 95 of the Criminal Justice Act 1994, the Home Secretary has a duty to publish annually any information that will enable criminal justice agencies in England and Wales to help prevent racial discrimination. Ethnic monitoring of key police activities e.g. arrests, stop and search, became mandatory for all police forces Commission for Racial Equality (1997).
In the 1980's several studies showed that Black people were more likely to be detained under section 136 of the Mental Health Act (DoH, 1992). By the late 1990's, research carried out in terms of both race and gender, discovered that these similar worrying patterns are still continuing. The Mental Health Task Force Project reported that African Caribbean males were over-represented amongst those formally detained in acute in-patient units and were more likely to be 'taken to a place of safety' under section 136. It was also found that they were up to three times more likely to be sectioned than their white counterparts (Smaje & Heath, 1995). Black women also fare extremely badly, with a staggering 18 per cent likely to be held under this particular section, compared with just 2 per cent of their white counterparts (Browne, 1997).
Once arrested Black adults were less likely to be cautioned; more likely to be remanded in custody; to plead not guilty; tried at Crown Court and more likely to be acquitted. However where they were found guilty they were more likely to receive longer custodial sentences than their white counterparts (Fitzgerald, 1993). The author Fitzgerald notes: "The decisions of criminal justice agencies (and other relevant bodies including the legal profession and forensic "experts") interact and compound each other. None can be viewed in isolation; for if there are even small ethnic differences in the key decisions taken by each, their cumulative impact may be very large indeed" (Fitzgerald, 1993 pg 34-36).
A report by the Department of Health on Black and Minority Ethnic Communities concludes that ethnic minorities are likely to be worst affected by any increase in the use of compulsory powers (Bennett, 1998). The draft Mental Health Bill further increases the possible abuse of powers enabled under the current Act in terms of the black and ethnic minority populations. Previous research has shown that black people are more likely to be perceived as dangerous; brought into hospital by the police under Section 136,detained prescribed higher doses of medication and older forms of major tranquillisers kept in secure, locked wards prescribed anti-psychotic drugs and less likely to receive non-drug therapies. Any expansion of the grounds for compulsion is a cause of concern for minority ethnic people and the extension of compulsion into community settings is likely to exacerbate this situation (McNeil et al, 1995). Therefore, any individual of an ethnic background may suffer due to reports through the media and other sources making them less likely to accept medical care and treatment. This in itself can be a cause for concern as the issue may be far from resolved.
Doctors
The Doctor/FME will medically examine the individual for physical and mental health issues. Prior to the examination the Doctor must explain their role in terms of independence and the purpose of their presence. Once this has been done the Doctor needs to then ensure that the individual has the capacity to understand and retain information as such for the examination to take place (Fitzpatrick et al, 1993). However, historically there have been many arguments with regards to Doctor's not being Section 12 approved and only GP trained therefore, having limited knowledge of mental health issues i.e. drug induced psychosis. When dealing with an individual with a possible mental illness the Doctor/FME needs to have a substantial understanding of polysubstance misuse when conducting a physical examination, the FME should assess for signs of intoxication, dependence or withdrawal through the assessment of disorders in speech, mood, perception, thought, cognition, insight and risk of self- harm (Norfolk, 1997). As a result forensic physicians are increasingly being asked by the police to assess for substance misuse with respect to their fitness for detention, the need for treatment and fitness for interview. The individual will be tested for drugs when the FME requests a urine test. A study carried out showed that 61% of detainees had taken illicit drugs and one in three tested positive for multiple drugs including alcohol (Norfolk, 1998).
This would indicate a potential risk of violence or aggressive behaviour; many Mental Health teams will not assess individuals under the influence of Alcohol leaving the FME in a difficult situation. Effective liaison with the police custody officer can be relevant in terms of the individuals presentation when and where arrested which highlights the need for collaboration when compiling a comprehensive risk assessment.
Approved Social Worker (ASW)
The role of the ASW is that of interviewing the individual (client) contacting any relatives/ friends and ascertaining whether there is any mental health history. Once the person is assessed the ASW will make any arrangements that are necessary.
ASW's are separate from the medical profession in terms of discipline and use the social model, however they have also been targets of "bad press" in terms of how the public view them. The public image of social workers is a major problem as it distorts the discussion away from what social workers actually achieve in both preventive and rehabilitative work with individuals, groups and communities onto a small number of high profile scandals and disasters. In these circumstances, there is a danger that the social model and the social care disciplines will not be highly valued in the new mental health services (Duggan, 2005).
The promotion of the social model requires the continued existence of social work as a discipline, however changes to the proposed to the statutory roles of Approved Social Workers in terms of making approved Mental Health Workers, also disquiet about the civil liberties implications of the new proposals, particularly in relation to the proposals for the detention and treatment of those with presumed 'dangerous personality disorder', need clarity about the value and effectiveness of social interventions to support individuals and groups with mental health problems to temper and modify this process (James,2000).
Nurses
For nursing staff whether in the community or in-patient setting a detailed assessment is required with all risks assessed. In the acute patient setting nurses have to check all MHA documentation is in order and handed in to the MH administrator. The idea of Crisis Resolution Teams (CRHT) is that of treating individuals in their own home environment due to the lack of hospital beds and 9-5 community mental health teams, the CRHT are mainly nurse led, and run on the basis of 24hrs 7 days a week. They are the 1st point of contact for MHA due to ASW involvement in this Multi-Disciplinary-Team setting.
Statistical Evidence
The evidence, scale and nature of the problem for which people who come into contact with the criminal justice system is approx at least 200-300 incidents a year in Coventry whilst mentally distressed.
Some evidence for this estimate is as follows (provided by Coventry Police and AWS's in Coventry):
Police Stations across Coventry, during the period of August to November 2004,
Custody records, charge sheets and, where appropriate, reports of medical examinations by the Forensic Medical Examiner (FME). Forty-Nine cases were identified in which there was a mental health issue recorded.
Extrapolating this proportion to the total annual caseload (3,160) approximately 200 cases a year. The police response to these cases can be summarized as:
Bailed 10% Place of Safety 56% Hospital 11% Court 8% No further action 15%
In terms of gender and race:
White - 19, Black - 13 & Asian - 8 (Males)
White - 3, Black - 4 & Asian - 2 (Females). The total: White 22, Black 17, & Asian 10.
a) The difference in the number of cases estimated from Police records to go forward to Magistrates Court (20) and the number of cases in which mental health problems are identified at the Court (80) suggests that in a significant number of cases mental distress symptoms do not appear to be identified at the Police Stations.
b) Section 136 appears to be being widely used to remove people from the Police station to hospital (rather than direct from the public place to hospital), but many of these cases are not being recorded - thus informally diverting them from the criminal justice system, aarrangements in this area seem pragmatic.
c) It is difficult to determine the proportion of cases where clients had housing problems or were homeless, although there were indications that this is an important issue.
Over the last year, a large proportion was not properly recorded and often the completion of relevant forms misplaced. Some of the problems were due to the police and the FME suggesting there is no need for a MHA or assessment. However, when assessed by the psychiatric team and admission is needed the client is often brought in on an s4, s2, or s3 on the monitoring sheet. (This information contrasts strikingly with data from Police Records)
Management of Aggressive Behaviour and Risk Assessment. Follow up responsibilities
There have been a number of cases where deaths have been linked to management of aggressive behaviour involving restraint or medication. According to MIND, (2003) "several of these incidents have taken place when a person has been detained in a police station prior to being transferred to another setting." Carson (1993) has highlighted that the assessment of risk involves consideration of three different components. These are consideration of, initially, the outcome; secondly, the likelihood of the outcome; and finally, an expected timeframe. This has particular relevance to the decision to continue or terminate behaviours we do not want the patient to display; namely violent or seriously disturbed behaviours. Consideration of what we know about the patient, their previous behaviours, the nature of their illness and the environment in which they will be returning to; the time frame in which this process is occurring; and the need to remain aware of the time scales are required before termination can be achieved.
However, this process is not as simple as it first appears. McNeil & Binder (1996) highlighted how "evaluation of potential violence is inherently problematic, i.e.: some people evaluated as low risk will become violent and some people assessed as high risk will not become violent." Grounds (1995, p46) also highlighted the difficulties associated with risk assessment; stating that "it has to be recognised at the outset, first that there are limits to our knowledge about risk, secondly that there are limits to our ability to assess it, and thirdly that there are limits imposed upon us due to the structure and ethos of our services." Indeed, Grounds (1995) proffers that we worry too much about some patients and not enough about others.
Attitudes of non-discrimination and patient autonomy, and capacity should be taken into account in determining outcomes. The definition, while largely reflecting that of the Law Commission's work in this area, should be broadly based so that patients "might be deemed to lack capacity when they reach a decision in respect of their treatment that they would not have reached had they been well"(Re C 1 WLR 290).
Mental health policies address risk management and crisis resolution, local agencies account against financial constraints for implementation bound by clinical governance. Commissioners of mental health services implement the requirements of the NSF in key areas. Empowerment issues being at the top of the list of priorities, these concerns are compounded by worries about the implications of the proposed reforms to the Mental Health Act (Draft Bill, 2002). The recent shifts in policy aimed at modernising institutions across the whole field of civil and social care, are areas of crime, education, legal services, housing, regeneration and community development, skills and workforce development the framework provided by the NSF plans to be an effective service for adults with mental illness and aims to prevent it in the first place (NSF, 1999).
The factors relating around risk management and assessment are that of:
a) Emotional, practical and social support to people with mental health problems as interdependent.
b) The client is likely to benefit in the long term if they are provided with a reliable relationship with a key individual or service, which aims to understand their emotional needs, to relieve their isolation and facilitates making links with other agencies (Barr et al, 2001). A case scenario, which can be used, is that of:
"I was working in a warehouse in Coventry, and I came
Home drunk in a psychotic outrage. They'd put wallpaper
Up in the kitchen, which I didn't want, and I began to peel off the paper, whilst I was cooking well I pulled it off and set fire to it on the balcony. I was arrested for arson with intent."
This gentleman had a history of drug and alcohol abuse he was well known to the services CDT and CAS (Community Drugs Team and Community Alcohol Services)
Low self-esteem, lack of motivation and difficulties in creating a daily structure, has been raised by agencies as key problems for their clients. Certain key elements have been raised for example at times of acute stress, when individual's sense of internal order becomes more fragile, the lack of insight into their current difficulties and the effect they have on other people, requiring intensive management, which contains the emotional distress and attends to the external factors of daily living (Rethink, 2002). A case scenario that emphasis is:
"I left my son at the church with the priest, the turning point was when I broke the statue I felt free so I drove 26 miles on the motorway because my ex-husband said I could not drive on it, well he was abusive for years towards me, I didn't take Jack because I didn't want to upset him. I don't think I did any thing wrong the priest was there so Jack wasn't alone"
Consequently this lady was diagnosed with a major mental health disorder she was never known to the services before, however she had been treated for Depression by her GP for years.
Services specific to the needs of clients from black and ethnic minority groups were identified in the North of Coventry however the West is less developed. It was suggested that groups to support people with mental health problems from the ethnic minorities and their families should be established. Behaviour related to mental distress encountered by the police included: bizarre behaviour for petty offences including shoplifting, fraud, public disorder, criminal damage and drugs/alcohol, and the more serious crimes of arson and violence. Police may become involved via their domestic violence unit, or providing advice and tracing AWOL clients. The police are faced with particular problems in identifying mental illness and managing people in distress. Several agencies said they felt the police interpret non-conformist behaviour as threatening, which, can lead to the inappropriate use of force. This in turn often frightens the individual already confused and disorientated and can then provoke a violent response (Turner, 1996). Another case Scenario:
"I attacked the man which a machete because I was defending myself I was told he was trying to kill me, I don't know why I have no marks on me but he was trying to kill me. I knew you wouldn't believe me you think I'm mad."
This gentleman has a long history in the psychiatric services he has been diagnosed as Paranoid Schizophrenia and his relationship with the Assertive Treatment Team (ACTON) has broken down due to his reluctance to engage with them. The man he attacked had his finger served off and also needed stitches for his head wound. At the time of the incident the victim was out walking with his girlfriend, she and many others were witnesses to the attack.
Information leaflets and Rights on Procedures
There is an over-representation of the psychiatric and the criminal justice system in terms of certain themes, which occur throughout is the use of Section 136 (police removing someone to a place of safety) at times proving to be pragmatic, which does not always follow the agreed policy and is largely un-monitored with considerable discrepancies between the records of different agencies. However it is important that individual's are assessed quickly and that the 72 hours are seen as the absolute maximum time to be detained. The police should issue information to the person on why they are being detained with their rights under PACE (1984).
ASW's have a duty to unsure the person has been told of their rights and feel able to be interviewed by the Police. Individuals in custody should receive recognition of their basic human rights under the European Convention on Human Rights (ECHR, 1999). Another factor in terms of rights is that of patient Confidentiality and each discipline needs to abide by the rules of their particular governing body.
Conclusion and Recommendation for Future Practice
In-conclusion Section 136 is a good safety net if utilised appropriately, however there are also many criticisms regards the use and place of safety. Many suggestions can be made with the hope of decreasing individual distress when all agencies combine efforts together maximising a holistic approach. The new Mental Health Bill will hopefully incorporate some changes in approach and response times.
Emphasis on long-term flexible involvement is needed, in terms of help with managing medication, the payment of bills, or having regular contact with someone to talk to, if the individual is vulnerable or has any needs identified. MIND and CPN's provide different home visiting services but resources of such services available to the individual are limited. The short-term resettlement and support services offered by housing organisations do not meet client's long-term needs, the concept of the creation of a safe house/crisis centre and respite beds in non-medical environments may be beneficial. Structured, therapeutic interventions would help reduce reliance on hospital provisions.
There is a shortfall in Advocacy services, as is access to welfare Rights and employment training. While day care services are valued, there is some duplication in drop-in services, and often sometimes difficult to get to, clients often feel that these are related to psychiatric services, whereby they are labelled and stigmatised.
Once these issues and many other areas not covered in this assignment are implemented across the board s136 MHA'83 will be less pragmatic and more effective.
Glossary of relevant Mental Health Act 1983
S2 Admission for assessment and/or treatment for up to 28 days, non-renewable.
S3 Admission for treatment for up to 6 months, renewable for 6 months and then yearly
S4 Admission for assessment in cases of emergency for up to 72 hours. Can then be
Converted to s2 with another medical recommendation.
S135 Warrant to search for and remove patients. An Approved Social Worker applies to
Justice of Peace on an oath. A warrant can be issued to enter premises and remove to place of Safety for up to 72 hours. ASW and doctor attend with police.
S136 Mentally disordered persons found in public places. A constable may remove a person, who appears to be in need of immediate care and control, to a designated place of safety for? Up to 72 hours.
REFERENCES
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Turner N (1996) Nigel Turner's Hyper guide to the Mental Health Act Section 136.
Removal of people from public places. Found on http://www.hyperguide.co.uk/mha/s136.htm
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