Mental Health Alliance briefing: Policing and Crime Bill September 2016

Transcription

1 Mental Health Alliance briefing: Policing and Crime Bill September 2016 Who are we? The Mental Health Alliance is a coalition of 75 organisations from across the mental health spectrum and beyond. We're working together to advocate for fair implementation of the Mental Health Act in England and Wales. We have worked together to secure better mental health legislation since the development of the Mental Health Act 2007, which amended the 1983 Act, and have continued to monitor its implementation since and to seek improvements. Background The Policing and Crime Bill, which is currently making its way through Parliament, proposes amending sections 135 and 136 of the Mental Health Act These relate to police powers under the Act: - Section 135 currently allows police to enter a person s home, with a warrant, and take them to a place of safety pending a mental health assessment. - Section 136 currently allows the police to remove a person from a public place to a place of safety pending a mental health assessment. The amendments in the Bill bring into legislation the recommendations of the joint Home Office and Department of Health review of sections 135 and The Mental Health Alliance welcomes this opportunity to discuss sections 135 and 136 of the Mental Health Act Many of the provisions of this Bill are positive, particularly the increased focus on community-based places of safety, the reduction of police custody use and greater health involvement before a decision is made to detain someone under section 136. However there are other areas where we would seek greater clarity to avoid any perverse consequences of the legislation. It is important to note that many of the issues raised here are relevant not just to sections 135 and 136, but to the entire Mental Health Act. The Mental Health Alliance will continue to advocate for a rights-based approach that properly takes into account people s capacity to make their own health care decisions. We would also highlight that effective implementation of this Bill is reliant on the provision of appropriate mental health services and community-based solutions, and that the use of compulsion should be minimised in the treatment and support of people with mental health problems. 1 Dept of Health, Home Office (2014) Review of the Operation of Sections 135 and 136 of the Mental Health Act 1983

2 Overarching principles Principles of equality, non-discrimination and respect for diversity The joint Home Office and Department of Health review of sections 135 and also acknowledged that BME groups in particular Black African Caribbean men are disproportionately over-represented in S136 detentions compared to the general population. Recommendation: We would seek clarification as to how the reforms in the Bill are intended to improve the experiences of people from BME groups when in mental health crisis, particularly of Black African Caribbean men. We would like to see monitoring and annual reporting of the implementation of this legislation that includes ethnicity. Given the historical and general negative experiences of people detained under sections 135 and 136, particularly from the UK's African Caribbean communities, this change in Mental Health Act legislation presents the chance to ensure these communities are not further disadvantaged by this Bill. The reforms to the Mental Health Act in the Policing and Crime Bill present the opportunity for a principle to be added that reflects the Government s commitment to joined-up thinking across departments. This should ensure that provisions in the Bill have due regard to other Government initiatives and anti-discrimination legislation. Recommendation: Principles in the Act govern how the powers of the Act are emphasised. One of those principles should be equality, non discrimination and respect for diversity. These should be in the body of the Mental Health Act 1983, without any method of disapplication of those principles. This should be done with regards to the Equality Act 2010 and it is important to explicitly refer to these key policy areas so that there is less scope for ambiguity and misinterpretation at local levels. Access to independent support and advocacy As part of the amendments to the Mental Health Act, we would welcome an extension of rights to independent support, advocacy and/or legal support to those detained under sections 135 or 136 of the Mental Health Act Advocacy is currently a legal right to those detained under other sections of the Mental Health Act 2 Dept of Health, Home Office (2014) Review of the Operation of Sections 135 and 136 of the Mental Health Act 1983

3 and detained in hospital, but not for those detained in a place of safety. We recognise that this would have financial implications and would urge that funding is made available to ensure that this is properly resourced so that adequate provision is available or all those detained. Extending the provision of appropriate adults, for example, could be one way of increasing access to support We also continue to be concerned that people do not have access to independent legal representation with relevant knowledge of the Mental Health Act when detention is being considered and would urge this be considered during discussions. Recommendation: Access to independent support, advocacy and/or legal support should be enshrined in legislation for those detained under sections 135 and 136, as it is for other sections of the Mental Health Act. Provisions in the Bill 78 Extension of powers under sections 135 and 136 of the Mental Health Act 1983 This clause makes a number of amendments to the powers of the police under the Mental Health Act. The key changes are: 78 (2) amends section 135 to allow someone to be kept in their home (or the private premises where the warrant is being served) for assessment rather than being removed to a place of safety. This change is supported by changes to the definition of places of safety in clause 60(3). 78 (4) amends section 136 to allow the police to keep the person at a place of safety for assessment rather than removing them. This change is supported by changes to the definition of places of safety in clause 79(3). 78 (4) extends the scope of section 136 to cover everything except a private residence (including gardens, garages etc.). This is wider than the current definition of a public place under the Act. It also allows the use of force where necessary. 78 (5) introduces a requirement for police officers to consult with a health professional, where practicable, before using their powers under section 135. The Mental Health Alliance welcomes a move to exploring community-based alternatives to police custody as places of safety, including people s own homes. However, we also recognise that, for many, the prolonged presence of police in their homes pending a mental health assessment could cause distress. Some Alliance members have expressed significant concerns about the use of home for detentions specifically under section 136, where people might be returned to a situation which is distressing and may have contributed to them becoming unwell. There are concerns about the safety of the premises and the fear of it becoming the default option, even

4 when inappropriate, because of the lack of alternatives. Others feel there is some merit in having the option of home as a place of safety but this needs to be done with careful consideration and the explicit consent of the person being detained. We are all committed to ensuring that the use of residential settings as a place of safety, which for some people may be very intrusive and distressing, is never driven by a lack of appropriate alternative health settings. We would like to see people being offered health-based alternatives as well as residential settings so that they have the opportunity to make a meaningful choice. Recommendation: We would seek clarification about the intention and implementation of this clause, including explicit safeguards around when home can be used as a place of safety under both sections of the Act. The legislation makes explicit that the person (and other occupiers) must consent to a private home being used as a place of safety. We welcome this and would urge that real-time information about alternatives is provided to the person to support them to make an informed decision about where they would like an assessment to take place. Recommendation: We call for an annual national report outlining how often people are kept at a place of safety to better understand how this legislation is being used and implemented. The Mental Health Alliance welcomes the explicit requirement for police to seek input from health professionals before using their section 136 powers. This builds on successful existing models, such as the Department of Health s street triage pilots, to ensure greater involvement of health professionals in mental health crisis situations. However we are very aware that this is reliant on health professionals being available to the police. Recommendation: We would therefore like to see a requirement on the Secretary of State to monitor instances where seeking health professional input has not been possible to help identify any barriers related to health provision. 79 Restrictions on places that may be used as places of safety 79 (3) restricts the current definition of any other suitable place as a place of safety in the Mental Health Act. Under the new legislation a location (such as a private residence or public building) can only be deemed suitable with the explicit agreement of the occupier(s) or manager, as applicable. 79 (6) prohibits the use of police custody as a place of safety for anyone under 18.

5 79 (6) also sets out a regulation-making power for the Secretary of State concerning the use of police cells as a place of safety for anyone over 18. This would allow for regulations to specify the precise circumstances in which police cells can be used. The Mental Health Alliance welcomes these measures to reduce the use of police custody as a place of safety, and is particularly encouraged to see its prohibition for those under 18. We acknowledge that it is difficult to quantify on the face of the legislation the exceptional circumstances in which cells can be used and that this will be outlined in regulations. However we feel that if the ambition for children and young people is to prohibit the use of police cells as a place of safety, this level of ambition should be equally applicable to adults. If people cannot be safely supported in health settings and a police cell is seen as the appropriate alternative this should raise serious concerns about the quality of local mental health crisis provision and if it is fit for purpose. Extending the range of places that can be used as a place for safety also raises concerns about safety and quality. There are recommended quality standards for health-based places of safety, for example around staffing and the physical environment. It is especially important that children are detained in suitably supportive environments and we call on all providers to meet the standards set out in the Royal College of Psychiatrists guidance Position Paper Defining a health-based place of safety (S136) and crisis assessment sites for young people under 18. Careful consideration should be given to how these concerns can be addressed through the legislation to ensure the risks to people detained under sections 135 and 136 are not increased as a result. Recommendation: The use of police custody for adults and the availability of alternative health based places of safety should be reported at a national level to allow for scrutiny of this. 80 Periods of detention in places of safety etc 80 (2) changes the current maximum time someone can be detained pending a mental health assessment from 72 to 24 hours. This will begin when a person arrives at a place of safety or, if they are remaining at the place of safety, either when the police officer enters the premises (section 135) or when the decision is made to keep the person at the place of safety (section 136).

6 80 (4) allows the doctor responsible for assessing the person to authorise an extension of 12 hours (this must be authorised before the 24 hours ends). This can only be done if a person s condition makes it impracticable to carry out/complete the assessment. If at a police station, this authorisation must be approved by a superintendent of higher ranking officer. 80 (5) amends the provision in the Act around people escaping from custody to bring it in line with the new 24 hour limit. The Mental Health Alliance welcomes the acknowledgement that 72 hours is a wholly unacceptable amount of time for someone to be detained pending a mental health assessment. However the 24 hour limit is still much higher than other access standards for healthcare, such as the four hour A+E target. As work continues to introduce waiting time and access standards across mental health services, we would anticipate that timeframes under section 135 and 136 would be brought in line with those related to crisis care. This will require sufficient provision of acute mental health care to ensure that people are not released without the treatment they are assessed to need or detained unlawfully. We would also flag that inadequate provision of health-based places of safety in some areas can often result in long waits ahead of transfers, or a significant amount of travel time to a place of safety. This can be distressing to a person experiencing a mental health crisis and it amounts to a further period of detention that is not counted. Recommendation: Consideration should be given to how delays in transportation and admission will be mitigated in the legislation. 81 Protective searches: individuals removed etc under section 135 or 136 of the Mental Health Act 1983 This clause extends the power of the police to carry out protective searches of individuals detained under sections 135 and 136 if they believe the person is concealing an item that might be dangerous to themselves or others. This is being extended to mirror the extension of the definition of places of safety so that protective search powers will continue to apply. Experiencing a mental health crisis is a very distressing occurrence and contact with the police can exacerbate this. While we acknowledge that these searches should only occur when there is a concern about concealed risk, we have concerns about the implementation of this in practice.

7 Recommendation: We would urge that any police search powers of person or property relevant to section 135 and 136 detentions, included those granted by PACE, are accompanied by guidance about the scope of these searches and the manner in which they should be carried out.