Alex RKOne of the most difficult areas where the law runs up against practical realities is in relation to addressing the consequences of a mental health crisis requiring potential admission to hospital. In theory, the Mental Health Act 1983 should provide a seamless framework, complete with timelines, to allow:
- The safe custody of a person who has been brought to an appropriate place of safety by the police after having been found in a public place in mental health crisis;
- The multi-disciplinary assessment and, where appropriate, admission of that person to hospital to assess and treat them.
In practice, it is often simply not possible to operate that framework within the timeframes provided for by Parliament.
What then happens, or should happen in such case has been considered by Theis J in Surrey Police v PC & Ors [2024] EWHC 1274 (Fam). The chronology of the case requires to be set out in full, as a snapshot of the system under strain.
4. On 24 April [2023], PC was arrested regarding an offence of criminal damage. The arresting officers had concerns in respect of PC’s mental health. Although consideration was given as to whether he should be removed to a place of safety under the Mental Health Act 1983 an ambulance was called. Due to delays in the ambulance arriving the officers decided to take PC to a hospital that was operated by Surrey and Sussex NHS Healthcare Trust (‘the Trust’)).
5. 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 see how his mental state was over the next 24 hours given the suggestion of drug use. He was medically fit to be discharged and PC was taken to a police station.
6. 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 and 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.
7. PC arrived at the Police custody centre just after noon. Following being booked in he is recorded as having spent the rest of the afternoon sleeping in a cell.
8. The following morning there remained an issue regarding PC’s mental health. He was seen by the CJLDS nurse. The Approved Mental Health Professional service (‘AMHP’ pursuant to s114 Mental Health Act 1983 ‘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 s 136 MHA 1983, which was done 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 were advised that his PACE clock would expire around 12.30 pm 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.
9. During the morning the records describe PC’s presentation was 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’.
10. At 2pm there was a meeting to discuss the availability of a bed at a place of safety. Although different accounts are given by the various public bodies as to the availability of beds, the result was nothing was available. During the afternoon the nurse who was responsible for healthcare in police custody became increasingly concerned. The local authority state they did not receive any update regarding PC’s presentation nor were they advised that he could be assessed under the MHA 1983.
11. At around 7pm the AMHP and psychiatrists arrived at the custody centre. Both psychiatrists recommended that PC be detained under s2 MHA 1983, however there was no bed available for him. 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.
12. The detailed chronology prepared by the Trust sets out the efforts made by them to locate a bed for PC. 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.
13. By just before 10 pm the police record they were informed by the Trust there was no bed available for the foreseeable future, although this description of the time frame is disputed by the Trust. In any event, it was said there would be an urgent review in the morning. Around that time PC was becoming more agitated in the cell, he started to demand sedation and the custody sergeant described PC as ‘unmanageable’ at this time.
14. 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’) East & Mid Surrey confirmed that lorazepam was available in stock and the HTT Night Nurse would take it to the custody centre.
15. In the early hours of the next day 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 was able to give the medication to PC. It was 2x1mg tablets, which he eventually took with water whilst still in the body cuff. Due to high level of concern about PC he had been on constant observation since the previous evening.
16. The lorazepam had a calming effect and the body cuff could be removed. At 6.32 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’.
17. 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 s 136 MHA 1983 was implemented.
18. Ongoing discussions between the public bodies covered the limits to the use of s 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 do not accept this report. The AMHP advised that common law could not be used but that a second s136 could be used, which accorded with the advice from the police legal adviser. They considered whilst 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 s 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 recitals to that order were attached to the judgment, and included the interesting observation that:
On the basis of the information before the court, it agrees with the submission on behalf of the Official Solicitor that it cannot authorise the ongoing deprivation of PC’s liberty under the Mental Capacity Act 2005 as he would be ineligible due to the provisions of schedule 1A.
The next morning, PC had been detained under s.2 MHA 1983 and conveyed to a bed. Theis J listed the case for a further hearing the next morning.
In her judgment, Theis J recorded 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 on the relevant statutory agencies.”
Theis J then identified a further series of specific 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.
Theis J was invited to depart from the general rule in proceedings under the Court of Protection Rules 2017,[1] the Official Solicitor making an application for either all her costs to be paid by the local authority, or for her costs to be shared between the public bodies. The application was founded on the late stage the Official Solicitor was notified of the application and the lack of clarity about the legal basis for the application. Theis J acceded to that application:
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. 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 be been more active collaboration between the relevant public bodies.
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.
Theis J then endorsed 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.
Comment
Perhaps the most striking feature of this case is that an application was brought at all. Roaming the country both virtually and in person and hearing in different ways from those involved on all “sides” (as it can all too often feel) of situations where stretched public bodies are addressing the consequences of mental ill health, I can attest that the particular cocktail of circumstances described above may be unusual, but they are undoubtedly not unique. Communication difficulties, electronic records failures, confusion over lines of responsibility, shortages of beds, and differing legal advice being given to different people with different degrees of confidence are all too common. What is very much less common is for one or other of the bodies in question actually to bring an application to court to seek to resolve the situation in real time. The case is a helpful and important reminder that (1) the courts are available 24 hours a day, 7 days a week, 365 days a year to assist; but (2) advanced judicial grumpiness will ensue if recourse is not sufficiently timely.
It is perhaps of interest that the Official Solicitor did not on PC’s behalf invite the court to determine whether he had, in fact, been lawfully deprived throughout the relevant period. It may well have been that the Official Solicitor took the view that, even if tenuously, there was sufficient authority at all points up and until the application was made (at which point s.4B MCA 2005 would have kicked in). But the fact that there were so many doubts about the position being expressed by different people at different points is problematic, both as regards legal literacy, but more fundamentally as a sign of a legal framework under intense real world stress.
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[1] Although, technically, it may have been that even if the application started in the Court of Protection, Theis J was actually sitting as a High Court judge exercising the inherent jurisdiction, in which case the CPR, rather than the COPR would have applied. However, the starting point in welfare cases is the same: see Redcar & Cleveland Borough Council v PR [2019] EWHC 2800 (Fam), so nothing would turn on this.
