Monday, 23 April 2012

What is a Public Place?

I am currently working with a woman who recently had an unfortunate encounter with the Charwood Police. Joan is a single woman in her 50’s. She works as a self employed nail technician. She is good at her job and has a loyal clientele. She has had no previous history of mental disorder.

Joan was in her front garden one fine weekend Spring morning, gardening. Her sister was with her. Her sister was concerned about her mental state, as she had just finished with her boyfriend of several years, and her mood seemed to be very volatile. Her sister called the on-call doctor, who refused to come out, and suggested she call an ambulance, which she did.

Instead of the ambulance arriving, three male police officers suddenly entered Joan’s garden and, apparently without attempting to talk to Joan, wrestled her to the ground. They managed to break her leg in the process. They then detained her under Sec.136 and took her to A&E. She was subsequently assessed under the Mental Health Act, detained under Sec.2 and admitted to Bluebell Ward, in a cast.

I met Joan when she appealed against her detention and I was asked to provide a Tribunal Report. However, her Sec.2 was rescinded and she was discharged less than two weeks after admission. Since discharge, she has shown no signs of mental disorder.

When I heard about the circumstances of her detention I was very concerned, to say the least, about the legality of the Sec.136.

The MHA states (Sec.136(1)): “If a constable finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety.”

The Reference Guide to the Act (Ch 30.17) adds: “For these purposes, a “public place” can be taken to mean any place (whether indoors or outdoors) to which the public have access, whether by right, by explicit or implied permission, on payment, or otherwise.

Richard Jones, in the Mental Health Act Manual, observes that this “probably includes: public highway, public access if payment is made, eg a cinema, public access at certain times of the day, eg a public house.”

Is someone’s front garden a “public place” or “a place to which the public have access”? Although there is little Mental Health case law which examines this issue, there are a number of cases relating to other legislation in which this has been explored.

In the case of R v Edwards (1978) in the Court of Appeal, it was found that, as far as the Public Order Act 1936 was concerned “the fact that the public can obtain access to a private house as visitors through the front garden does not make the garden a public place”.

The Weightman’s legal website has an informative article examining this issue. In relation to someone’s front garden, they note:

“With regard to the front garden of a private house, for example, we know that it will only fit the bill if members of the public can enter it without invitation (R v Bogdal [2008] EWCA Crim 1); and that in the case of a very small garden, it won’t be sufficient that someone standing there could reach a pedestrian on an adjoining highway. (R v Leroy Lloyd Roberts [2003] EWCA Crim 2753) But we only know that because of cases decided under the Public Order Act 1936 (R v Edwards (1978) 67 Cr App R 228), the Criminal Justice Act 1988 and the Dangerous Dogs Act 1991.”

Based on these sources, then, it is reasonable to conclude that a front (or a back) garden does not constitute a public place within the meaning of Sec.136. The Police therefore acted unlawfully when they restrained Joan and then took her to a place of safety. Joan is taking legal action.

While I do think that the Police are generally trying to act in the best interests of individuals when they invoke Sec.136, the typical copper on the beat does not necessarily understand the legal niceties of Sec.136. One such example was reported in Wigan Today on 30th November 2011, the case of Ms Atkinson, who died in hospital from a punctured lung.

It was reported: “Police had been called… following reports of a woman acting aggressively to her partner. They found Ms Atkinson clearly distressed, screaming and waving her arms around. Because of her behaviour, police decided to section her under the Mental Health Act for her own safety and took her to hospital for help.”

One of the officers during cross examination during the inquest stated: “After we detained Ms Atkinson and put her in the back of the van, PC Allen asked me to contact Leigh Infirmary and told me he'd detained her under Section 136 of the Mental Health Act. I hadn't really thought about what powers we had to detain her, I just wanted to do the right thing and get her to hospital as quickly as possible."

I’m sure that these officers were just trying to do “the right thing”. I’ve assessed many people in police custody over the years, sometimes detained under Sec.136, and sometimes under arrest for a public order offence. At times it seems it was the custody sergeant who decided under which power the officers involved had brought them to the police station on their arrival.

However, using Sec.136 when the mentally disordered person is not in a public place can cause more problems than it might solve. One such case is featured in a piece of Mental Health case law known as R (Sessay) v South London and Maudsley NHS Foundation Trust (2011) EWHC 2617 (QB).

In this case, the police attended the home of a woman after concerns about her mental health were raised. They removed her from her accommodation and eventually brought her to a hospital where the police officers completed and handed in a document which they called a “Sec.5-6 MCA 2005 Form” which stated the basis upon which they considered the Claimant to lack capacity and upon which they had therefore used their “powers” under the MCA 2005 to bring her to hospital. The hospital rightly concluded that this had no legal authority, and told the woman that she was being detained under Sec.136. She was eventually detained under Sec.2.

The Mental Capacity Act 2005 does not give anyone powers to remove a person from their home and forcibly take them to hospital. Once in a hospital, Sec.136 cannot be invoked because it is not a public place. As Richard Jones observes “an A& E dept waiting area is a public place, but a hospital ward is not, as it is a place to which only particular members of the public can attend at the request of the patient and with the permission of the hospital managers”.

The police could not of course have used Sec.136 to remove this woman, as she was in her own home, again not a “public place”.

The Court found, among other things, that her rights under Article 5 of the European Convention of Human Rights were infringed. It also stated that Sec.135 and Sec.136 were the exclusive powers available to police officers to remove persons to a place of safety, and that the hospital unlawfully detained her.

Incidentally, I believe all this may answer the query posed by Rosemary Cantwell, a blog reader, who posted in the comments to my last post, Conveyance of Mentally Disordered Patients to Hospital, the following question: “Is it necessary to obtain Sec.136 to remove forcibly a person from hospital to a place of safety who is not under Sec.2 or Sec.3?”

I do not know whether Ms Cantwell is referring to an actual case or a hypothetical situation. Either way, it is clear that a hospital ward cannot be considered to be “a place to which the public have access”, and Sec.136 could not therefore be used to remove an inpatient, or anyone else, from that place. However, if by “hospital” Ms Cantwell means a hospital reception area or A&E department, then Sec.136 could be used.

15 comments:

  1. Based on experience of working with the police with mentally disordered patients, I have to say I can't imagine them detaining Joan in the manner described.

    The police are very reluctant to invoke their powers of detention and will spend a significant period of time trying to persuade a person to attend voluntarily. As a last resort they will use s136, and if necessary, force, but to suddenly jump on someone out of the blue?

    Re s136 in A&E, I have seen it done when a voluntary patient could not be persuaded to stay. However, would it not be more appropriate for a doctor to invoke their power of temporary detention in this situation?

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    1. I too have encounted very similar experience to Joan when 4 police jumped on me out of the blue on my property!!. Luckily too, I had witnesses. Suffered severely broken bone required metal plates to repair. Something is badly wrong. Does anybody know if it is legal for me to have been sectioned after receiving morphine for the severe pain at hospital?. I have reason to believe this is illegal. I had also asked for a solicitor at this time which I was denied.

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  2. I too am usually very impressed with the police's handling of mentally disordered people, their ability to often talk them down, and their proportionate use of physical force if all else fails. However, something went badly wrong in this case -- not only does Joan give this account, but also her (sensible) sister, who was a witness to what happened. And she was certainly not in a public place when Sec.136 was invoked.

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  4. Hello

    I think the car park of a residential home used as a thoroughfare by local people is probably 'a place to which the public have access' but what about the back of the ambulance sitting in said car park which contained a cognitively frail service user obstinately refusing to debouch following a discharge from the hospital?

    This is an academic question as the Police attended, mumbled something about the back of the ambulance already being a place of safety and then left, leaving it up some CPNs with C and R training to effect removal to the care home using proportionate force.

    If staff had decided that the placement was likely to amount to a deprivation of liberty, obviously it would have been desirable if an assessment relating to the person's best interest in relation to the placement had been undertaken and a Standard Authorisation to already be in place at the care home, however, DoLS Authorisations (unlike Guardianship orders) give no authority to convey to the place where detention will take place.

    I know the 'correct' answer is probably that an approach should have been made to the Court of Protection for an order permitting the transfer and authorising the proportionate use of force and restraint. However it it realistic to do this for every hospital transfer where an incapacitated person might dissent or become distressed by a change to their routine? I think it was OK to rely on s. 5 of the Mental Capacity Act (authorising restraint short of a deprivation of liberty) for the staff who intervened to resolve the crisis, however would it have been permissible for a best interest meeting to conclude in advance that ordinary MCA powers gave sufficient authority to staff involved in the transfer to manage the situation in the service user's 'best interest'?

    A little bit of foresight might have spotted that this might be a difficult hospital transfer and should have prompted steps to be taken to avert this minor crisis. I think it might have been appropriate for very mild sedation to have been used to reduce the service user's distress before her departure (not as awful as it sounds, she was prescribed sedatives for the management of her periods of agitation). Better planning might have been more to the point, briefing the ambulance crew not to faff about allowing the situation to escalate, and not to argue, trying to convince the service user but in fact hardening her resolve.

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  5. From MentalHealthCop:

    There is often a blurring about 'public place' and 'place to which the public have access'.

    Parliament intended any response to psychiatric crisis in a private dwelling to be an AMHP lead MHA assessment, or an AMHP sought warrants under s135(1) for the same ... involving a DR.

    Try getting one of those following a spontaneous attendance at a job which then requires it. Two hopes in my operational experience, including last Wednesday evening.

    Check out my blog for considerations the police should or do or must go through when responding to mental health incident in private premises, becuase the Masked AMHPs legal points and other observations are spot on, but the police are often left by services in a 'damned if you do' / 'damned if you don't' situation.

    Not easy.

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  6. I appreciate how difficult it must be for the police at times but recently I was restrained by the police whilst in my own home, and actually not even putting up a fight. They were called by a family member because I was distressed and on arrival, they just charged in and without speaking to me restrained me. I was left with two broken ribs. It was absolutely terrifying and left me quite traumatised as you may imagine.

    There is a complaints procedure for this but nobody is prepared to apologise. I can see that they perhaps thought they were doing the best for me - but I had never fought the police and actually didn't get sectioned when they did the MHA. I'm sure though sometimes it is a no win situation, there may be others who may have attempted to harm the police or themselves but I hadn't. The majority of the time I have to say the police have been brilliant with me =]

    It's really sad to read this blog post and know that it happens to others, but in a way it is also a relief to know that I'm not the only one. I felt like a criminal when all I had been was really sad & crying.

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  7. I was put on a Section 136 whilst I was asleep in a tent at a festival last summer. I woke up as the police grabbed my ankles to drag me out.

    I don't think that inside my tent is 'a place to which the public has access', but no-one seems to know, or to how I could find out for sure. If I found someone I did not know inside my tent, I would expect they had been stealing things and call the police.

    I also don't think that the police should have been able to use a s136, because it says 'If a constable finds.. a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control', but until the police broke into my tent and grabbed me, they could not see or hear me, and I was asleep, so I could not have appeared to be in immediate need of care and control. They made their judgements based on false allegations and not what they could see or what I was doing.

    The section was because a man who had previously assaulted me had made a false allegation that I'd threatened him with a knife. It would have been easy to check that this never happened before sectioning me, but no-one did.

    I spent 14 hours in police cells, and was strip searched by force. The MH assessment decided I was fine & I was released with no follow-up (beyond my usual monthly GP appointments).

    I am very worried about the s136 coming up on CRB checks. It will end my career if it does. There doesn't seem to be any way to appeal, even though I should never have been put on a 136 because the allegations were completely false & it would be easy for me to prove that, if I was allowed a chance.

    What can I do?

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    1. i think it would be very hard to argue that a tent is a public place under the meaning of S136 and i think you also have a very good point on them thinking you were mentally unwell. you've probably done this by now but I think a solicitors firm specialising in mental health law would love this case.

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  8. I would suggest you seek legal advice from a local firm that specialises in mental health law. They will probably have a better idea about the tent "as public place" and whether the arrest is likely to show up on a CRB. What did the AMHP who assessed you say about the manner of your detention?

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  9. I had an enhanced crb check a week after a 136 and having had 4 previous detentions and it didnt show up

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  10. As an AMHP I raised this issue at a recent forum where the Police were in attendance.

    I was informed that a 136 would show up on a CRB but you can apply to the Chief Constable of the arresting constabulary to request removal.

    It is interesting to hear from LR that this didn't show up on their recent check.

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  11. This is a quote from the Sessay judgement

    ' 57. In our judgment Parliament provided an exhaustive code concerning compulsory admission to hospital in Part II MHA. Sections 2-6 cover procedure for hospital admission which include in s.4 admission in emergency situations. We do not accept that there is any lacuna in MHA in relation to the period when a person is at the hospital pending an application under s.2 or s.4 MHA. Each case necessarily turns on its own facts. However in our view it is unlikely in the ordinary case that there will be a false imprisonment at common law or deprivation of liberty for the purposes of Article 5(1) ECHR if there is no undue delay during the processing of an application under ss.2 or 4 MHA for admission. (See paras 48-52 above).'

    The police seem understandably touchy in using the MCA to detain someone since Sessay but this quote from the Sessay case seems to be saying that if there hadn't been such a delay in detaining the woman under the MHA once she had arrived in hospital then it would have been ok for the police to use the MCA. S6 MCA does give conditions where MCA can be used to restrain the person and it is difficult to see what other legislation the police could use if they had immediate concern for someone's welfare.

    be interested to know what you think.

    Paul (AMHP)

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  12. Interesting to know...

    I am waiting on the police to arrive re an incident with my neighbours, they are to blame. As someone with MH issues, I was curious (because I am close to harming myself) if the police had the powers to section me and take me to hospital.

    Alas it seems they don't if I am in my own flat, but perhaps do if I stand in the shared hallway or car park!

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  13. Not wishing to give my name right now but....firstly....a garden or house is NOT a public area. Various MHA experts have made this VERY clear. In Gloucestershire the use of 136 has risen 3 times since the place of safety was changed from the local police stations to a purpose-built 136 suite. The police use 136 to remove people from their front doorstep (invited out for a cigarette or other pretext). This saves all sorts of hassle about dealing with domestic disputes/drunkenness etc. The section/3/voluntary admission rates has not increased to the same level, so that discounts the sudden increase in madness in Gloucestershire from the day the suite opened!!!. Staff complain but nothing happens.

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