E 0506 Procedure - Custody Mental Health Assessments

Number: E 0506
Date Published: 2 September 2024
Version 8 – September 2024

1.0 Summary of Changes

• Sections 3.0 & 3.4.2.2 – Have been updated with a new flowchart.

2.0 What this Procedure is about

The purpose of this new procedure is:

• To provide guidance in respect of detained persons (DP) who have been arrested for a criminal offence and whilst in police custody, appear to be suffering a mental disorder and require an assessment under the Mental Health Act 1983 (MHA);
• To ensure a DP who appears to be in mental health crisis receive timely mental health assessments at the most appropriate Place of Safety (POS);
• To ensure if there is consideration for the use of Section 136 MHA (S136) for a DP in custody that this power is used appropriately in-line with E 0507 Procedure - Right Care Right Person - S136 Mental Health Act 1983;
• To prevent situations where a DP is held unlawfully because their detention clock as per the Police and Criminal Evidence Act 1984 (PACE) has expired but the application to section them under the MHA cannot be completed;
• Following on from the above point to ensure when concerns arise there is the potential for a DP detention to become unlawful the National Police Chiefs Council Escalation Protocol is enacted.

Compliance with this procedure and any governing policy is mandatory.

3.0 Detail the Procedure

Abbreviations

ED Emergency Department (formerly called A&E)
AMHP Approved Mental Health Professional
DP Detained Person
HBPOS Health Based Place of Safety
HCP Health Care Professional
PACA Policing and Crime Act 2017
PACE Police and Criminal Evidence Act 1984
POS Place of Safety
MHA Mental Health Act 1983
MHP Mental Health Professional
MSE Mental State Examination
S136 Section 136 Mental Health Act 1983
CRG Castlerock Group
EPUT Essex Partnership University NHS Foundation Trust

A process flowchart has been produced to act as a reference guide to accompany this procedure.

3.1 Initial Identification of Concerns for the Detained Person’s Mental Health

Concerns regarding the mental health of a DP can be identified at any point during their period in custody. As detailed in procedure E 0101 Procedure – Detainee Reception the Custody Sergeant has a responsibility to ensure that any detainee is fit to be detained in custody. This will commence from when the DP is first brought before them to authorise their detention. It is then a continuing duty throughout the DP detention in custody and prior to their release the Custody Sergeant must complete a risk assessment as per E 0107 Procedure – Pre Release Risk Assessment.

3.1.1 Initial Mental State Examination Completed by a Health Care Professional

On the identification of concerns for the mental health of the DP, the Custody Officer may determine that a Mental State Examination (MSE) is required before a decision can be made as to whether a DP is fit to be detained. A Health Care professional (CRG) will be called to complete this examination as soon as possible. Following this examination if the HCP deems a MSE is required they will make a referral EPUT (Mental health nurse) and will advise the Custody Officer both verbally and in writing via Athena where the Custody Officer will document the custody record using the coded template that they have both read the HCP’s recommendations and received a verbal update. The MSE will then be conducted by EPUT where a decision will be made as to whether a formal mental health assessment is required where this will be communicated to the Custody Officer both verbally and in writing. On receipt of the EPUT report the Custody Officer will document the custody record, using the coded template, of the starting, concluding time and outcome of the MSE also that they have received a verbal update and read the report. The Custody Officer will then ensure that the report will be scanned and uploaded to the custody record. If a decision is made that an MHA is not required, then the investigative process will continue in accordance with any further advice provided by the MH team as to whether an appropriate adult is required. Should a decision be made that a formal MHA is required EPUT will contact the duty AMHP and request attendance for the conducting of the formal MHA.

In addition, if EPUT recommend a formal MHA assessed they will also be consulted by the Custody Officer as to their advice on use S136.

As a result of Policing and Crime Act (PACA) a requirement now exists to consult a Health Professional where practicable prior to the use of S136.

Although there is a requirement to seek advice (provided it is practicable to do so) and it should be used to inform decision making, police are not bound or required to follow any advice provided. This is fully detailed in E 0507 Procedure - Right Care Right Person - S136 Mental Health Act 1983.

3.1.2 Where it is not possible to await a Health Care Professional

There may be cases where the Custody Sergeant identifies urgent concerns for the mental health of the DP. The urgent nature of these concerns will mean the Custody Sergeant forms the view the DP is not fit to be detained and either they cannot await the attendance of an HCP or one has been requested but is not available within a reasonable timescale. At this point the DP will be released from custody with consideration of the appropriate tactical options as detailed in section 3.3.1. If one of these options will be to consider the use of S136 then as detailed in section 3.1.1 if it is a practicable a Health Professional must be consulted. Advice could be obtained from:

The contact details for the Central Management Hub and the EWMHS service are on the S136 mental health Connexions page.

3.2 Mental Health Assessment process

• Once a decision has been made that a formal MHA is required EPUT will contact the duty AMHP to request the formal MHA Assessment and will advise the Custody Officer of the estimated time of arrival, who will document this on the custody record. Upon arrival of the AMHP and Section 12 Doctor’s the Custody Officer will confirm with the AMHP whether they have received a copy of the EPUT report and if not ensure a copy is provided. In addition, the Custody Officer has a duty to provide the AMHP and S12 Doctors of any additional information or incident that may affect their assessment in relation to any risk posed by the detainee and is to ensure that this is documented on the custody record.
• Upon the formal mental health assessment being conducted the Custody Officer will be notified of the conducting teams’ decision and will then, using the coded template, update the custody record accordingly. The update via the coded template will document the time the assessment was called, arrival of the conducting team, the time the assessment commenced, concluded and the result.

Once the MHA assessment has been completed the potential outcomes are:

• Discharge – It is deemed that the detainee is not detainable under the MHA and that any identified mental disorder may be dealt with by way of community referral regardless of any wider risk they may pose and therefore this must be considered in relation to safeguarding and pre-release risk assessment.
• Detention under Section 2 MHA for up to 28 days to be assessed. This might suggest the DP did not have capacity at the relevant time. Even if they are found not to have had capacity, if the offence is sufficiently serious or there are significant risks identified linked to their offending, the person can potentially still go through the criminal justice system;
• Detention under Section 3 MHA for up to 6 months (although this can be extended) for treatment. This might suggest they did not have capacity at the relevant time. Even if they are found not to have had capacity, if the offence is sufficiently serious or there are significant risks identified linked to their offending, the person can potentially still go through the criminal justice system;
• Recommendation for Informal admission – If advised by the conducting team informal admittance is advised then initially fitness to process the detainee must be ascertained in order the investigation can be progressed. Note it is not lawful to detain a person beyond the PACE clock to await informal admission and conveyance to hospital as they would be legally entitled to leave at any time and therefore the guidance must be followed.

When does a DP PACE clock stop – If a person is assessed as requiring detention under the MHA they are not sectioned at this point and their PACE clock continues.

In order the DP can be legally sectioned a hospital bed must be located in order the AMHP can sign the paperwork (Form A3) allowing the PACE clock to be stopped.

Irrespective of how unwell the DP is if the PACE clock expires before a bed is located their detention becomes unlawful.

Upon a bed being located the AMHP will advise the Custody Officer and will sign the A3 form and detention under the MHA commences, whereby the custody officer will scan and upload the A3 form to the custody record and will document on the custody record the time the bed was located.

3.3 Tactical options to consider

The correct process within PACE for a DP who is identified as requiring a MHA assessment and is fit to be detained should be for the assessment to be expediently conducted in custody.

There are potential blockers which may prevent an expedient MHA assessment:

• Time at which the need for a MHA assessment is identified – Concerns for the mental health of a DP are not always immediately identifiable and could be identified at any point whilst they are in custody;
• Delays in the completion of the Mental State Examination – Due to delays in the attendance of the HCP to do the MSE;
• If the detained person is intoxicated or under the influence of drugs – A DP cannot have their MHA completed in such a condition, the same as how their PACE suspect interview could not be completed;
• Delay in the MHA assessment being arranged – Due to problems in the availability of an AMHP and/or the two doctors required. This problem can especially occur out of hours and at weekends;
• Availability of a hospital to receive the DP – Locating a hospital which is willing to receive the DP can be an involved and prolonged process especially in respect of children or those with specialist needs.
• The area in which a bed is to be located – When a detainee needs a bed but is not resident in the Essex Police area and is registered with a GP outside of the MH teams’ area this can prove to be problematic and can cause delays however the onus is on the AMHP to facilitate a bed with the relevant area and not Essex Police.

If any of these blocking issues occur, then there is potential that the DP’s PACE clock will not be sufficient for the MHA pathway to be followed to conclusion meaning their detention may become unlawful. In addition, a significant period in custody would also mean that the DP would go for a prolonged period without treatment and support from appropriate mental health professionals as there is no provision to provide this within the custody environment.

In scenarios whereby a formal assessment has been conducted and a decision has been made that the DP is to be detained under the MHA but no bed is available, and it is advised it will it is unlikely to be available before the expiry of the PACE clock, then the Custody Sergeant must ensure that they act in accordance with procedure E 0118 Custody Mental Health Escalation. This protocol is designed to ensure when issues are identified with the MHA assessment process that they are escalated in order to avoid an unlawful detention.

This document outlines when and to whom an incident needs to be escalated. The following persons will assume the responsibilities for their respective rank:

• Inspector – Fulfilled by Custody Manager or PACE Inspector;
• Force Duty Officer – Fulfilled by Force Duty Officer;
• Gold – Fulfilled by the Chief Constable or Deputy Chief Constable only.

Should the escalation process prove to be unsuccessful then changes to PACA have now expanded the scope of where detention under S136 can be utilised for persons within a custody suite to prevent unlawful detention. If therefore the criteria to detain under use S136 are met the following tactical options can be considered

(1) Not to be detained under S136 – DP remains in custody for their MHA assessment to be completed;
(2) Detained under S136 but DP does not remain under arrest – DP is disposed of from custody (on bail, released under investigation or no further action taken) in relation to the matter they are under arrest for.

3.3.1 Factors to Consider as Part of the Decision Making Process

The option which is suitable will be dependent on a number of factors. It is not possible to produce a definitive list and professional judgement will have to be applied by the Custody Sergeant but within the rationale recorded on the custody record consideration should be given to:

3.3.2 Information Gathering about the DP:

• Anticipated fitness to continue to detain the DP in custody;
• Advice of health professional regarding the use of S136, if it was practicable to consult them as per the requirement under PACA;
• Can the HCP or other health professional who has been consulted access the DP health records and is there any relevant information contained within them?

Specifically any current diagnosis of physical health or mental health conditions and whether they have they been detained under S135/S136 before, if so how recently and the outcome. This may give an indication of whether once assessed they will be sectioned or not and fit to continue to be dealt with for the offence they have been arrested for.

3.3.2.1 Ascertaining viability of completing the MHA assessment in custody:

• Information provided by the AMHP on when they can attend to commence the MHA assessment and the availability of any hospital to receive the DP should they be sectioned;
• Taking into account the above, is it believed the MHA assessment can be completed and any subsequent application made within the time remaining on the DP’s PACE clock?

3.4 When can a Superintendents Extension be Considered

A Superintendent’s extension can be granted if, the DP is awaiting their MHA assessment and if the intention at that time is to continue to pursue the criminal investigation, then an extension can be granted. If following the completion of the MHA assessment if the DP is deemed fit for detention/interview, the intention will be to interview them and complete other necessary enquiries to continue to the investigation of the offence in question.

A Superintendent’s extension cannot be granted if, however, it has already been decided given the relevant facts of the case that whatever the result of the MHA assessment no further action will be taken in relation to the offence. In such a case under Section 34(2) PACE the grounds for the detention would have ceased to apply.

So, an extension could not be considered as the purpose of it would be to enable a MHA assessment to be completed for the welfare of the suspect not in pursuance of any criminal investigation. In addition, an extension cannot be granted to facilitate additional clock time where the DP has been subject to assessment and a decision made that the DP is to be subject to section but at the time a bed has not been located.

3.4.1 Consideration for a RIC for DP who has been assessed under the MHA

The circumstances of some cases and the risk posed by the DP accordingly may mean that a RIC should be considered in cases where:

• The normal grounds to refuse bail would not be removed by the DP being sectioned, when taking into consideration it will not be possible to guarantee how long someone will be sectioned for. If detained under Section 2 for assessment, this is for up to 28 days to allow them to be assessed. At any point within that period if it deemed they are not suffering from a mental disorder they will be released. If detained under Section 3 for treatment and it is assessed they have sufficient recovered, they will be released;

If a RIC is to be sought and the grounds are the same as they would for any custody case and the below process should be followed:

• Suspect interview – If the person cannot be interviewed the CPS will require that either the health professionals who completed the MSE or MHA assessment have stated they are not fit to be interviewed;
• MG 3 – Then once there is then sufficient evidence to meet the threshold test the CPS can be approached for a charging decision. In the MG 3 the case should then be outlined as normal with how the facts of the case (applying the threshold test) meets both the evidential and public interest test;
• Question of the suspect’s capacity – The CPS lawyer approached for a charging decision may question the fact that the capacity of the suspect will not have been confirmed. This is not by itself, however, a barrier to charges being authorised. Cases where a RIC would be sought in such circumstances will be those where the alleged offences are so serious that regardless of their capacity it would be sought for the suspect to go through the criminal justice system. As even
  if they were found unfit to stand trial, only the criminal courts can make someone subject of a hospital order;
• MG 7 – The facts concerning why a locked ward or low secure unit is not suitable should be outlined in the MG7;
• Once charged and bail is refused – The defendant would then appear before the next magistrates court as normal;
• If a RIC is not possible – If there is not the evidence to approach the CPS or the CPS will not authorise charges (and if applicable once any process to appeal the decision has been exhausted) then as part of continual dialog with the AMHP they should be updated accordingly. They will then have to make arrangements with the appropriate bed manager for plans to be put in place to manage the patient accordingly. There should then be consideration to expedite the investigation and potentially for a short bail date to be set. At which point if it is still applicable a RIC can be considered when they answer bail.

3.4.2 Use of Section 136 in Police Custody

Following the December 2017 amendments to the Mental Health Act 1983, it is now lawful to consider the use of section 136 in police custody in respect of those who have been arrested. This section covers when, a suspect should be released from detention, whilst under investigation, in order to be diverted to the mental health system. There are two possible scenarios where this might occur:

• Safeguarding someone who suddenly and unexpectedly indicates an intention to end their life or injure themselves, just as they are being released from custody – this would apply whether the person is released with or without charge;
• Where PACE grounds to hold someone have expired (see s34 and s37) but where there is an ongoing need for mental health services – in this context, either an MHA assessment by an AMHP and DR; or where someone is awaiting admission.

This scenario may vary depending on when the decision is taken to suspend PACE and implement s136, which can add a layer of complexity.

3.4.2.1 Utility

The boundaries between mental health and criminality are blurred. Whilst neither are easy to define and some behaviours can overlap, it is common to be presented in custody with behaviour demonstrative of a serious mental health condition and a contravention of our criminal law. Public policy suggests (Home Office Circular 66/90 and 12/94) how we should approach the overlaps and in the UK this is by criminalising people for more serious offences only where broader public safety is at stake.

The police have an important role to ensure balance in the application of that policy:

• We don’t want the police to fail to bring to justice those who have offended where a mild or moderate mental health condition has, in no significant way, affected their liability for their conduct;
• We don’t want the police to criminalise the seriously unwell and other vulnerable people for minor crimes which were situationally related to their condition and the context of a crisis incident;
• We do want the police to protect the public from those who pose a much more significant risk, in order to allow the criminal courts to make a thorough assessment of how we balance the patient’s right to treatment with legal frameworks which ensure public protection.

We need to think carefully about the potential for us to take premature decisions: if officers do not facilitate immediate access to the mental health system because of the alleged offence, is that a proportionate response and could this be detrimental to the individual’s health? If we are diverting someone from the criminal justice system because they have a mental health condition, is it one which is sufficiently serious to require urgent assessment ahead of any other consideration about the offence they are alleged to have committed and what risk does this pose to the wider public and the individual themselves? All cases turn on their individual merits and need to be discussed with healthcare professionals involved.

3.4.2.2 Summary

Consideration of using s136 in police custody should occur and should only occur where there is genuine difficulty in further justifying detention under PACE for someone who was originally arrested for an offence; and where their mental health problems are believed to be sufficiently serious in their own right to justify the use of s136 if they had been encountered outside of custody. The exception to this is where someone is so ill, it is a medical emergency and they are unfit for detention in police custody, in need of urgent transfer to A&E regardless of the PACE conditions around the investigation.

A flow chart has been produced to act as a reference guide to accompany this procedure – MH Pathway and S136 Flowchart.

3.5 Transportation out of custody

Patient detained under Section 2/3 MHA – The AMHP will arrange transport via a secure ambulance to the hospital which will be receiving the patient.

Patient detained under S136 – EEAST should be contacted to provide an ambulance as detailed in E 0507 Procedure - Right Care Right Person - S136 Mental Health Act 1983

3.6 Staff Welfare

The distressing nature of some mental health incidents could potentially give rise to issues of staff welfare. The publication, engagement and use of staff welfare services are encouraged. Within Essex Police this means services provided by Occupational Health. Managers and supervisors should familiarise themselves with L 11260 Protocol - Trauma Risk Management.

Further guidance around staff welfare and health is available from the TRiM webpage and Health Services webpages. There is also helpful advice contained on the Blue Light Programme – support for emergency services.

4.0 Equality Impact Assessment

EIA – July 2024

5.0 Risk Assessment

Police officers and police staff will consider real time risks in a dynamic manner in accordance with their individual roles and take all reasonable steps to reduce these as far as possible.

6.0 Consultation

The following have been consulted during the formulation of this document:

• Unison
• Police Federation
• Essex Diversity and Inclusion Manager
• Health & Safety
• Strategic Change Team
• PSD Superintendent
• Policy/Risk
• Superintendents Association
• Strategic Force Crime & Incident Registrar
• Information Management
• Control Centre
• Custody Chief Inspector
• Personal Safety Team Leader
• Policy author of the Body Worn Video Procedure
• Support Networks
  
  • MESA
  • Disability Network
  • Women’s Leadership Development Forum
  • Work Life Balance
  • Christian Police Association
• Author to initiate contact with the below:
  
  • Force Solicitor
  • British Transport Police
  • Section 135 and 136 System Preparedness Plan leads
  • Essex Partnership University Trust (EPUT)
  • East England Ambulance Service Trust (EEAST)
  • Local Authority Leads:
    
    • North AMHP Lead
    • South AMHP Lead
    • Thurrock AMHP Lead
    • EDS AMHP Lead
  • Emergency Department Leads:
    
    • Colchester Hospital University Foundation Trust
    • Broomfield Hospital
    • Princess Alexandra Hospital
    • Southend University Foundation Trust Hospital
    • Basildon and Thurrock University Hospital

7.0 Monitoring and Review

This procedure will be reviewed by, on or behalf of the Head of Crime and Public Protection in consultation every 12 months.

8.0 Governing Force policy.

Related Force policies or related procedures

• E 0500 Policy – Mental Ill Health
• E 0507 Procedure - Right Care Right Person - S136 Mental Health Act 1983
• E 0505 Procedure – Acute Behavioural Disturbance (ABD) and Excited Delirium (ED)
• B 1400 Policy - Protecting Vulnerable People
• B 1407 Procedure - Safeguarding Vulnerable Adults
• E 0100 Policy - Custody

8.1 Data Security

Essex Police have measures in place to protect the security of your data in accordance with our Information Management Policy – W 1000 Policy – Information Management.

8.2 Retention & Disposal of Records

Essex Police will hold data in accordance with our Records Review, Retention & Disposal Policy – W 1012 Procedure/SOP - Records Review, Retention and Disposal.

We will only hold data for as long as necessary for the purposes for which we collected. Victims/public should be reminded that Essex Police take the protection of personal data seriously as described in the privacy notice.

9.0 Other source documents, e.g., legislation, Authorised Professional Practice (APP), Force forms, partnership agreements, (if applicable)

• College of Policing mental health Authorised Professional Practice (APP).
• Department of Health and Home Office guidance for the implementation of changes to police powers and places of safety provision in the Mental Health Act 1983.
• College of Policing briefing document, Mental Health Act Amendments 2017.
• A Joint Policy Relating To Section 136 Mental Health Act (1983) Agreed by – Essex Police, Essex County Council, North Essex Partnership Foundation NHS Trust and South Essex Partnership NHS Foundation Trust but has not yet been updated in-line with legislation.
• Royal College of Psychiatrists, Guidance for commissioners: service provision for Section 136 of the Mental Health Act 1983
• Royal College of Emergency Medicine, brief guide to Section 136 for Emergency Departments.
• National Ambulance protocol for the conveyance of persons detained under Section 136
• Essex Police and Essex Partnership University Trust Triage Operational Policy.