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Fatima Jama examines the judgment in Surrey Police v PC [2024] EWHC 1274 (Fam), the application of the Mental Health Act 1983 and the systemic breakdown in communication and cooperation among public agencies.
Navigating the legal implications of addressing a mental health crisis that might require hospitalisation presents significant challenges. Ideally, the Mental Health Act 1983 (“MHA 1983”) offers a well-structured framework with specified timelines to ensure the secure custody of an individual taken to a designated place of safety by the police during a mental health crisis, a comprehensive evaluation and, if necessary, the admission of that individual to hospital for further assessment and treatment. However, in practice, adhering to the timeframes set by Parliament often proves unfeasible.
In Surrey Police v PC & Ors [2024] EWHC 1274 (Fam), the High Court reviewed an application to authorise the deprivation of liberty of an individual in police custody. The court also considered the approach public bodies should take when the individual requires assessment under the MHA 1983, but no hospital beds are available.
As financial pressures on our criminal justice and healthcare systems intensify, this case underscores the problem of considering a police station as a place of safety. This is something criminal practitioners may want to consider given many of the individuals that go through the criminal justice system suffer with mental health issues. The Mental Health Act 1983 (Places of Safety) Regulations 2017 explicitly states that “police stations are not the preferred environment for someone believed to be suffering from a mental disorder…”. This case also highlights the importance of collaboration among public bodies.
23 April 2023
PC was arrested for an allegation of criminal damage. The arresting officers had concerns in respect of PC’s mental health. Consideration was given as to whether PC should be removed to a place of safety under the MHA 1983 and an ambulance was called. Due to delays in the ambulance arriving, the officers decided to take PC to a hospital operated by Surrey and Sussex NHS Healthcare Trust (“the Trust”).
PC was taken to the Emergency Department of the East Surrey Hospital where he was given a 1mg tablet of lorazepam at 10:22, with a further 2mg dose at 10:47. PC was assessed by a psychiatric liaison nurse employed by the Trust; the notes describe PC as “agitated, aggressive, shouting and swearing, flushed”. The plan was to monitor his mental state over the proceeding 24 hours given the suggestion of drug use. He was medically fit to be discharged, and PC was taken to a police station.
The police raised concerns about the circumstances of PC’s discharge from hospital. The Trust responded that PC was discharged from the psychiatric liaison service; the pathway for people under arrest is for them to be assessed by the Criminal Justice Liaison and Diversion Service (“CJLDS”) and that was the plan in place for him.
PC arrived at the police custody centre in the afternoon. Following being booked in, he was recorded as having spent the rest of the afternoon sleeping in a cell.
24 April 2023
The following morning, there remained concerns over PC’s mental health. He was seen by the CJLDS nurse. The Approved Mental Health Professional service (“AMHP” pursuant to section 114 MHA 1983) at the Local Authority was contacted by CJLDS. They did not arrange a Mental Health Act assessment as they were advised that PC was not fit to be assessed. They suggested that he was kept in the police station as a place of safety under section 136 MHA 1983, which was recorded at 10:44. CJLDS and the Trust attended a meeting and updated the police about midday, informing them that PC was in line for the next bed. The Local Authority was advised that his PACE clock would expire around 12:30 so there was no legal framework to hold PC after that time. The Local Authority also suggested that PC was transferred to a Health Based Place of Safety (“HBPoS”) as soon as one was available.
During the morning, records describe PC’s presentation as mixed; at times he appeared florid and delusional and at other points was aggressive and threatening self-injury. By 11:58 the police noted their very real concern that he remained in their custody and that PC was “clearly having a mental health crisis”.
At 14:00 there was a meeting to discuss the availability of a bed at a place of safety. Although different accounts were given by the various public bodies as to the availability of beds, the result was that nothing was available. During the afternoon the nurse responsible for healthcare in police custody became increasingly concerned. The Local Authority denied receiving any update on PC’s presentation, nor being advised that he could be assessed under the MHA 1983.
At around 19:00 the AMHP and psychiatrists arrived at the custody centre. Both psychiatrists recommended that PC be detained under section 2 MHA 1983, however there was no bed available for him. By 19:46 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. At around this time, the police referred to PC by a different name and he was not known on the Electronic Health Record, which caused some confusion.
Before 22:00, the police recorded being informed by the Trust that there was no bed available for the foreseeable future, although this description of the timeframe was disputed by the Trust. It was said there would be an urgent review in the morning. Around that time PC was becoming more agitated, he started to demand sedation, and the custody sergeant described PC as “unmanageable” at this time.
The police asked for help, stating they required help from a mental health professional to keep PC safe. The Trust’s on-call Registrar agreed to prescribe sedative medication and the Home Treatment Team (“HTT”) for East & Mid Surrey confirmed that lorazepam was available in stock and the HTT Night Nurse would take it to the custody centre.
25 April 2023
In the early hours of 25 April 2023, PC’s presentation deteriorated further. He was recorded as being “out of control”. He was placed in a body cuff. The lorazepam arrived about the same time and a health care Practitioner (nurse), employed by Mountain Healthcare administered the medication to PC: 2x1mg tablets, which PC eventually took with water while still in the body cuff. Due to the high level of concern about PC, he had been on constant observation since the previous evening.
The lorazepam had a calming effect, and the body cuff could be removed. At 18:32 the custody sergeant reviewed PC’s ongoing detention and noted the real concern about PC’s continuing detention describing it as “lawful and the only reasonable place for him to be held until the appropriate services facilitate their duty of care”.
During the morning, conversations took place between the police and Trust. PC became agitated, at times he was placed in a body cuff and restrained by five police officers. A further period of detention under section 136 MHA 1983 was implemented.
Ongoing discussions between the public bodies covered the limits to the use of section 136. At one stage a senior manager at the Trust was reported to suggest the police could rely on the common law doctrine of necessity to detain PC; the Trust did not accept this report. The AMHP also advised that common law doctrine of necessity could not be used. The criticism of the suggestion that the doctrine of necessity would have permitted continued detention is derived from the case of R (Sessay) v South London and Maudsley NHS Foundation Trust [2011] EWHC 2617 (QB) which sets out guidance on when necessity can and cannot be used as sufficient grounds for detention.
The AMHP advised that a second section 136 could be used, which accorded with the advice from the police legal adviser. They considered that while it was not good practice, it was lawful. There were discussions as to whether an application to court would be necessary but none of the public bodies alerted the Official Solicitor.
In the early evening of 25 April 2023, the police made an urgent out of hours application to the court to authorise the deprivation of PC’s liberty in the police custody suite due to their concern that a second period of detention under section 136 would expire later that evening. Initially the application was made seeking orders in the Court of Protection, they were ultimately made under the inherent jurisdiction due to the urgency of the situation and to cover the short period of time before a bed was available.
The hearing took most of the evening due to delays in making effective contact with the relevant public bodies to enable them to join the urgent hearing. The next morning, PC had been detained under section 2 MHA 1983 and conveyed to a bed. Theis J listed the case for a further hearing the next morning.
Noted by the court was the “overarching concern” of the Official Solicitor in that “PC was clearly vulnerable and ill yet had been left in a police custody suite with what the Official Solicitor considered was inadequate care and support. In The Mental Health Act 1983 (Places of Safety) Regulations 2017 SI 2017 No 1036 Parliament limited the circumstances in which a police custody suite may be used as a place of safety, yet there was no apparent urgency or significant concern about this situation on behalf of the relevant statutory agencies.”
The court then identified further concerns outlined by the Official Solicitor:
23. First, the AMHP service upon initial request on the morning of 24 April 2023 appears to have delayed the mental health assessment on the basis that PC may have been intoxicated. By the time of that initial request PC had been detained for 24 hours. The local authority state they were told PC was intoxicated, which is not accepted by other agencies. Whatever was said the essential facts raised further questions that were not followed up, when they should have been.
24.Second, by 2pm on 23 April the AMHP service further delayed any assessment on the basis that PC may have been intoxicated but they had not seen PC, he had by then been in custody for about 29 hours. The local authority state this view was based on prior information the AMHP received which had not been updated. Again, this raised further questions that were not followed up, when they should have been.
25. Third, by 7.46 pm on 24 April it was known to the police and the local authority that there might be an issue as to the legal framework under which PC was detained in police custody but it took a further 24 hours, and only after intervention of the court, for there to be any proper consideration as to the legality of PC’s situation and for him to have any form of independent representation.
26. Fourth, the Official Solicitor has concerns about the circumstances of the lorazepam being given in custody. It was prescribed by a medical practitioner who had not seen PC. The Trust have acknowledged this concern and confirmed it is raising it internally. Also, it was given to PC whilst he was in the body cuff and no consideration is recorded as having been given as to whether PC had capacity to consent to being medicated with lorazepam.
27. Fifth, on the morning of 25 April there was no recorded handover between the AHMP from the Emergency Duty Team, which the local authority accept. By 2.45 pm on that day it was clear the AMHP who had conducted the first assessment was not going to be available until later in the day to make any application for admission. Effectively, there was no means to admit PC to hospital under s 2 MHA 1983 unless a further assessment was undertaken. The Official Solicitor considers that this could and should have been obvious by just after 9.30 am that morning when the AMHP realised they could not access either of the medical recommendations of the previous day. The local authority state it was apparent to the AMHP that there was no bed, so a further assessment would not have resolved the issue regarding the ongoing legal framework regarding PC’s deprivation of liberty.
28. Whilst the Court and the Official Solicitor recognise the difficulties the public bodies are operating under in such a difficult and dynamic situation it is nevertheless important the focus remains on the relevant legal authority being exercised to detain PC. Article 5(1) ECHR guarantees that no one will be deprived of their liberty save in accordance with a procedure prescribed by law. The notion of ‘lawfulness’ requires a fair and proper procedure offering the person sufficient protection against arbitrary deprivation of their liberty.
The High Court authorised deprivation of liberty under its inherent jurisdiction in a police cell while a hospital bed was being found. It also approved the guidance recommended by the Official Solicitor for future cases involving applications to authorise the deprivation of an individual’s liberty in a police station, whether under the inherent jurisdiction of the High Court or under section 4A of the Mental Capacity Act 2005.
29. I endorse the guidance advocated by the Official Solicitor for future cases that involve an application to the court to authorise the deprivation of an individual’s liberty in the police station either under the inherent jurisdiction of the High Court or section 4A of the Mental Capacity Act 2005.
(1) 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.
(2) If such an application is made, or is being considered, it should be brought before the court as soon as possible during normal court sitting hours. In particular, as soon as an issue is identified that there may not be a suitable legal framework for continued detention to take place.
(3) 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 that provided the AMHP service, the Trust which is providing/commissioning the bed and the police force which is physically detaining the person.
(4) 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.
(5) The Official Solicitor should be alerted in good time prior to any application being issued.
(6) 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 court was asked to deviate from the standard procedure outlined in the Court of Protection Rules 2017. The Official Solicitor requested that either all her costs be covered by the Local Authority or that the costs be divided among the public bodies involved. This request was based on the late notification the Official Solicitor received about the application and the unclear legal basis for it. The court granted this request.
39. I have reached the conclusion that there are reasons to depart from the general rule in this case. It must have been clear that in bringing the matter before the court PC was going to need to have a voice and be able to participate in the proceedings, either directly or indirectly….
40.As to what order should be made I am satisfied the local authority should pay the Official Solicitor’s costs. The Official Solicitor should have been given more notice of this situation and the potential of an application being made. The local authority could and should have taken more active steps to ensure that was done and to support the other public body, the police, who are less experienced in these type of applications.
Concluding the case, the following comments were made by Theis J “Whilst the police made the application I accept the submissions on behalf of the Official Solicitor that in this situation the local authority had the most experience and, in my judgment, should have taken a more proactive role, bearing in mind their statutory responsibilities and the growing uncertainty there was about the applicable legal framework. In the end, the police had little choice but to make the application because of the situation they found themselves in. There should have been more active collaboration between the relevant public bodies.”
This case illustrates the disparity between the law on paper and the law in action. Theoretically, the MHA 1983 provides a framework for taking a person experiencing a mental health crisis to a place of safety, assessing them, and, if necessary, admitting them to a hospital for appropriate treatment. However, this framework often fails in practice due to non-compliance with the Act’s timeframes, which is frequently caused by the difficulty in finding a hospital able to admit the patient.
When an individual is detained either in a hospital or care home, they become subject to the Deprivation of Liberty Safeguards. Those safeguards are not in place until the patient is admitted into the hospital or care home. The absence of beds in suitable wards, combined with the pressures of our overstretched healthcare overwhelming the police, may have the undesired effect of depriving patients of those safeguards in a way that Parliament could not have possibly envisaged.
The guidance provided by the High Court in Surrey Police v PC [2024] EWHC 1274 (Fam) is not only applicable to the specific situation in this case but also to cases where there is a conflict between health and social care agencies over the appropriate treatment or care for a patient. For instance, health professionals might determine that a patient does not require hospital treatment yet care professionals may find the patient’s aggressive or suicidal behaviour unsuitable for placement in a care home. In such situations, seeking a court order can help resolve the deadlock.
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