Mental health law briefing 193 – How long can a patient be held under section 136?
The use of section 136 Mental Health Act 1983 (MHA) is common where a mentally disordered person is found in a public place. It authorises removal to a place of safety for up to 72 hours. However a recent case in the European Court of Human rights provides guidance on the extent to which those who are subject to this power have specific rights while in police custody. The judgment acknowledges the particular vulnerability of such individuals, and emphasises the importance of timely access to appropriate healthcare services.
The applicant (M), who suffered from serious mental health problems, was arrested and detained at a police station after he was found behaving in a highly agitated manner in a public place. He was later suspected of having inflicted serious injuries on his aunt.
His detention was authorised under s.136, and he was subsequently assessed by two psychiatrists who found him to be suffering from a mental illness of a nature and degree that necessitated admission to hospital for treatment. However, failed attempts to find him a place in either a psychiatric intensive care unit or medium-secure clinic (“the clinic”) resulted in his detention in the police cell continuing beyond the maximum statutory threshold under the MHA of 72 hours.
The consultant forensic psychiatrist at the clinic mistakenly believed that their involvement would not be required until M was charged and remanded in custody. Accordingly, M was not assessed by the clinic for the first two days of his detention, despite displaying disturbed behaviour. On the second day of detention, the CPS concluded that there was insufficient evidence to charge M, but no further decisions were made and he remained in the cell. By this time, his behaviour had dramatically deteriorated: he removed all his clothing, drank water from the toilet bowl, and appeared agitated and incoherent.
A psychiatrist from the clinic attended the police station on the third day of M’s detention. He was assessed as requiring inpatient treatment, but could not be admitted to the clinic until the following day due to a lack of beds. Once admitted, he was diagnosed as suffering from a manic episode with psychotic features. He received treatment and showed sustained improvement over the following days.
M’s breach of human rights claim was initially rejected on the grounds that the clinic was not a public authority for the purposes of the Human Rights Act 1998, and the circumstances did not meet the minimum level of severity required to amount to inhuman and degrading treatment under Article 3 European Convention on Human Rights (ECHR). M’s appeal against this decision was similarly dismissed. He therefore applied to the European Court of Human Rights, alleging a violation of Article 3 due to his inappropriate detention during a period of acute mental suffering, which necessitated hospital treatment as a matter of urgency.
European Court of Human Rights judgment
The European Court upheld M’s complaint, finding that there had been a violation of Article 3 ECHR.
The Court accepted that the initial arrest and detention were both justified. Furthermore, there was no intention on the part of the police or health authorities to treat M in a manner contrary to Article 3. Indeed, both agencies were observed to have demonstrated a genuine and active concern for his wellbeing, seeking to ensure that he was assessed and transferred to a therapeutic setting as swiftly as possible.
Nonetheless, the Court highlighted that mentally ill persons were in a position of particular vulnerability. Accordingly, clear issues of respect for their fundamental human dignity arose when they were detained by the authorities. M was highly vulnerable throughout the period of his detention at the police station, and in dire need of appropriate psychiatric treatment. During this time, his fundamental human dignity was excessively diminished, despite the fact that the authorities were under specific obligation to safeguard this as they exercised control over him.
It was held that the situation arose out of difficulties of coordination between the relevant authorities. Despite the best intentions of those involved, the conditions to which M was subjected constituted an affront to human dignity and amounted to degrading treatment for the purposes of Article 3 ECHR.
This decision is significant in its application of the principles of human dignity, well being and vulnerability in assessing the length of time a mentally ill person in police detention should reasonably expect to wait before gaining access to medical treatment. It would appear that this approach is not solely limited to detention beyond the statutory 72-hour period, as the judgment focused on the effects of M’s detention across the whole period. The Court considered the recommendations of both the Committee for the Prevention of Torture and the Code of Practice issued under the MHA, which encourage speedy assessment and the prompt provision of medical care for mentally ill detainees, without prescribing specific time frames. What is clear from this judgment is that the principles of necessity and immediacy are crucial.
Moreover, the Court identified systematic failings in the coordination between the different state bodies concerned, thus highlighting the need for all those involved with mentally ill detainees to take individual responsibility for their right to access adequate healthcare.
 MS v United Kingdom (24527/08)
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.