The AMHP and Article 5 positive duty

Law and practice Other
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I’m very interested to hear others thoughts on the implications following from Theis J’s very recent judgement in Surrey Police v PC & Ors [2024] EWHC 1274 (Fam). It appears to me that it has really quite wide application. Although a judgement relating to unlawful detention in police custody - with a prescription of how to approach such matters in future situations in police custody – the driving principles are more universal. Namely the common law and the positive duty under Article 5. As I understand it, this will apply in any situation where a bed is not available, a person requires detention, and there is no, or soon will not be, a legal framework to provide for the continuing detention of the person. The judgement requires that where the avenues for providing a bed are exhausted and no other legal framework for detention can be used, an application to court to authorise the detention must be made. Although the positive duty applies generally to ‘the state’ and therefore to all public bodies involved in a case (in this case: the local trust, the police and through the AMHP the local authority), particular emphasis is placed on the role the AMHP and local authority have under this duty. It is asserted that in the current case “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”. My reading of the case suggests that where an AMHP is aware that there will be no legal framework available, or that the existing framework will expire leaving a vacuum (s136 in this case), then their positive duty is engaged and in all cases they have to then ensure an order from court is secured. Obviously, this has big implications for the demand on AMHPs and the local authority, equally the court. I am constantly assessing people without a bed being available and having to leave them, particularly, in A&E without a legal framework and, on occasions, in police custody.

I’m very interested to hear others thoughts on this, as, if my reading is correct, it will have a big impact.

As an aside, this interestingly answers my long-held question about whether there was a positive duty on AMHPs in these situations, see my contribution to the post on this site under ‘s136 Suite Detention’ (02/02/2024). Also, do AMHPs who have knowledge of s136s expiring in places of safety and patients being held under ‘common law’ - for days and sometimes weeks - have to now take action, where trusts are not? (Something I have long thought we possibly should be doing).

A more technical question is whether the construct of the ‘state’ is divisible, i.e can the public bodies involved be differentiated into those who have greater or sole responsibility under the positive duty?

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The background of this is: there are something in the region of 10,000 (my estimate) unlawful detentions each year whilst beds are sought for patients who have been assessed and require admission. It’s something like +4,000 criminal arrests where ‘diversion’ is sought; and another c6,000 s136 detentions (I can explain how I reach those numbers if anyone wants me to).

I found it very interesting the court laid down an expectation the AMHP satisfying themselves of intoxication being a barrier to assessment (perhaps because the CJL&D service and the police denied having stated PC was intoxicated) and I was also curious why they felt the need to s136 someone who was already under arrest in custody - what’s the s136(1) to justify it? The person suffering a mental disorder was already under ‘control’ and can be assessed MHA in custody whilst under arrest. So if they are doing it because of an immediate need for ‘care’, why keep him in a cell block for MHA assessment? The need for care was so profound and immediate, they kept him where he already was to receive the healthcare assessment input he would have had anyway if he only remained under arrest for criminal damage.

I noted the court stopped short of declaring what happened to be unlawful, it made no mention of duties on AMHPs under s13 or on ICBs (or LHBs) under s140 MHA and it didn’t offer a view about the back-to-back use of x2 periods of s136 MHA - which didn’t make sense anyway, if you look at the timings because the first 136 period began 1044hrs 240423 so expiring at 1044hrs on 250423; and the second period was argued to be due to run out in the evening of 250423, some twelve hours or less after it began … that aspect of the published judgment just doesn’t make sense but I hope we’re all agreed: back-to-back s136 periods without release or new justification is unlawful. Amazed me to learn that an AMHP thought it was lawful (but it didn’t amaze me to learn a police “legal adviser” thought it was).

Ultimately, it wasn’t a ruling on all aspects of what happened specifically, it was an intervention / remedy to an ongoing situation which in fact, ended up resolving itself prior to a ‘full’ hearing on the morning of the 26th April 2023. As such, it leaves a load of aspects unaddressed and even the barrister who acted for the Official Solicitor acknowledged it doesn’t resolve much.

But it does seem to put the AMHP front-and-centre in terms of protecting the rights of people like PC to ensure they do not end up unlawfully detained, which is why I would love to see Local Authorities waving this ruling at their ICBs and LHBs to say, "What are you now going to do about s140 MHA and the joint policy which should exist (see Code of Practice MHA) but doesn’t to govern how urgent admissions will work when they are requried.

And if I were a police force, I would include in my escalation policy a representation to an AMHP and the MH trust or ICB at a relevant point of impending illegality that unless steps are taken to prevent unlawful detention, I would prepare a High Court application in respect of which costs are likely to be awarded against the local authority, unless the AMHP can show the necessary steps were taken in which case I suspect the NHS may find themselves liable for failing to ensure a bed is available.

Yes, the state can be divided in to its component agencies because they have different legal responsibilities - that’s reflected in how the court addressed the question of costs, ascribing them to the LA, not the police, for example.

Love to hear other people’s thoughts.

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I’m wondering why it has taken so long for this sort of situation to go to court, and why it had to come from the police. It has become almost common place now for people to be kept in places of safety long after the S136 has expired, with no clear legal authority in place. Why have hospitals been allowing that to happen? Is it all just too big and difficult? Do hospital staff and AMHPs now feel so overwhelmed by the lack of resources that this situation has become sort of acceptable? It doesn’t help that all the different agencies argue amongt themselves about who is reponsible. It would be amazing if they could all work together and say ‘OK, what are we going to do about this’, rather than ‘what are you going to do about this’. I’m probably being hopelessly naive, but it would be great if the narrative could change from antagonism to cooperation.

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Thanks for this Michael. I too was disappointed that a number of issues weren’t addressed. My jaw was on the floor when I read about the back to back s136. It was a flagrant disregard for what is a very specific statutory time frame. But as you rightly say the decision the court was addressing was narrow and specific, to use or not the inherent jurisdiction to make lawful the deprivation of liberty. I’d like to hear more about how to judge the weighting and differentiation of the responsibilities under the positive duty. The local authority had eventually fulfilled as far as possible it’s statutory duty under s13(1) other than to make the application – this being stymied as there was no bed. It’s other responsibility, as raised by the Official Solicitor, was to consider the duties under the Care Act. I suggest this would not have had a role, as the person’s need was a health care need: containment; nursing care and immediate psychiatric treatment. The only other role under the Care Act might have been to raise a safeguarding concern, if no one was considering going to court (something I raised in my post back in 02/02/2023). But it’s clear from the judgement, there is no need for this intermediary. The positive duty alone is sufficient grounds for the local authority to have to approach court, if no one else was doing so. So I’m not clear about how greater weighting was placed on the local authority.

Hi Nick,
I’m afraid you are right. Staff largely have become desensitised to the situation. It is frankly a matter of routine that there will be no bed and that the person will be left without a legal framework, or reach this point when the 135/6 expires. It is also true that the trusts believe they can rely on a common law defence, in spite of the ruling in HL v UK (and others), and regularly do so. Occasionally a place of safety bed will be converted into an admission bed, but this is rare. The other aspect, which this ruling I think will change, is that AMHPs and other professionals are largely ignorant of the positive duty under Article 5 (and other Articles): i.e if the state either knows of, or should know of (which can mean investigating) a situation where a person is deprived of their liberty without a legal framework, there is a duty to ensure the person’s rights are made practically available to them and public bodies should seek to reduce the restrictions or to make the situation lawful. I must say for my own part, I have raised this matter a number of times over the years in our AMHP legal updates but have been told the AMHP is not subject to the duty in this context – which has always made me hesitate to take it any further.

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An interesting article which raises an important question. How many people are being ‘unlawfully detained’ by Police Officers as a result of a Sec 136 expiring …be that as a result of a bed-space being unavailable in a HBPS or because it was not possible to complete a MHA assessment?

I would question if anyone from Surrey has looked at the impact on the person detained under s135/136 especially given that Surrey S136 data currently indicates that nearly 50% of people detained under s136 have no mental disorder and are released from detention with no mental health follow up required. If people with no mental disorder are also subject to unlawful detention I would suggest that public bodies (Surrey Police and Surrey County Council) need to consider the impact of this episode of detention on the person detained.

I understand your concern John in respect of impact on workload, but should the focus here not be on person led care and our duty to ensure that we protect people’s human rights and we treat people with respect and less about the impact on the organisation and us as individuals?

There is also an argument here that the Councils current practice could be improved to avoid unnecessary work.

As a suggestion, we know that the ASC call centre have historically had a lackadaisical approach to screening SCARF from Surrey Police - simply passing them to the MHCDT. If we improved practice and returned cases that did not meet the
‘Adult at risk’ Care Act criteria we would reduce workload and be able to focus on those cases requiring intervention.

If we could encourage Surrey Police MASH Team to adhere to SCARF policy, Council colleagues would not be receiving inappropriate referrals.

If the authorities (Surrey Police / Surrey County Council) understood and upheld the DHSC SHARE consensus, they would not accept referrals where people posed no risk to others and dissented to care. By protecting people’s rights and freedoms we also reduce workload for staff and allow time sensative work to be undertaken to safeguard those that need safeguarding. We also of course avoid traumatising those who do not wish to have their autonomy removed by coercive control and we uphold a persons rights to be free from authority interference,

We also I would suggest could improve the MHCDT practice, by ensuring staff understand the limits of their authority, so for example by making staff aware of DPA 2018, p170(1); making sure they understand SCARF Handling Instructions; understand and follow UK GDPR etc.

If we direct resources appropriately and ensure we are only working with those we have the lawful duty to work with, we can hopefully put the person at the heart of our work, empower and not traumatise, and reduce the numbers of those unlawfully detained.

Given this data,

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I certainly agree Jane, the starting point should be the person. I naturally raise concerns about the potential impact on those providing a service, but that, as you rightly say, does not mean we don’t do it. Upholding the person’s human rights is fundamental.

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Most of this leaves me with a lot of questions, but two in particular

“I endorse 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.”

Does this mean this guidance is specific to Police Stations? I’ve never heard of this happening in a Police station before - but locally this situation arises regularly in A&E - where the ‘Mental Capacity Act’ is relied, quite dubiously imho.

Secondly

“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.”

I am really unclear why the AMHP or the local authority is seen as being the most appropriate party to lead the application - especially as the CoP seems to say the AMHP is not expected to address the delay in finding a bed themselves.

Given that the duty is not on the AMHP to find the bed, the AMHP will not know what alternatives have been looked at, and also that I do not think it sits with the AMHP to identify what care and support the person will need while waiting for a bed, including physical or chemical restraints - that would seem to be either the local NHS trust, or the Police force actually carrying out the actions.

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I presumed the view was taken about the AMHP / LA being appropriate to lead because it is the AMHP who is effectively being obstructed from complying with their s13 MHA duty to make the application, the grounds for it being met. Of course, the AMHP can’t make the application without the hospital being identified by the doctor (or NHS bed manager on the doctor’s behalf), but if that legal duty fails, then it’s the AMHP left high and dry in terms of complying with their own responsibilities to complete the application.

As for the police: well firstly, the police did make this application and nothing in the judgment suggests they couldn’t do it again but it seemed clear the judge thought they shouldn’t have been placed in that position. Also, the court didn’t get the chance to make a ruling on certain issues here and one thing is fairly key:

The man was originally under arrest for criminal damage and somebody has persuaded the police to instigate use of s136 MHA for someone who is already under arrest. As I mentioned in my other comment, this seems dubious. How can we possibly argue the grounds for using 136 were met when someone is already controlled, under arrest? … secondly, even if we are going to end up in 136 land, the grounds for keeping someone in a police station as a Place of Safety seem unlikely to be met in the situation described here. If I’d been the custody officer or custody inspector (and I ahve been, for countless cases like this), I’d declined to touch s136 MHA until the PACE grounds for arrest ceased to apply and then use s136 if the grounds were justified on the person’s release from arrest.

At that point, the Regulations for police stations need considering and there’s no way I’d have authorised use of a police station so off they go, either to a s136 suite if there is one available, or A&E if there’s not - because that’s the law now, albeit often ignored.

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I am glad that at last a judge has made it clear that leaving someone deprived of their liberty for a substantial period of time, while waiting for a bed, without a legal framework is potentially unlawful, and that in the absence of anything better an application under the inherent jurisdiction would be appropriate. As John says, this situation has been tolerated by some Trusts for far too long. I also welcome the confirmation that public authorities, including AMHPs, have a positive duty under Article 5.

However, I agree that it is not reasonable to expect local authorities to take the lead in making the court application in cases where they are not the detaining authority. I would also question whether an LA has the standing to make such an application where the person needs inpatient mental health treatment, which is beyond the scope of what an LA can provide, and they have no control over bed availability. Where would they keep such a patient pending admission?

I don’t actually think this is what the judge is saying. Rather, she thought the LA should be proactive in assisting with an application being made, which is not the same thing.
Here, the police wanted to regularise the legal position pending the person being admitted, so they were arguably the correct applicants.

The aspect of the case which the judge felt should have been undertaken by the LA was ensuring that the patient’s interests were legally represented, in this case by covering the costs of the Official Solicitor. I can see the logic of this, though personally I would have put this burden on the Trust, on the basis that it was their failure to find an admission bed which had necessitated the court application in the first place.

Going forward, in response to John’s original point I would suggest that an AMHP who is faced with an unlawful deptivation of liberty should (a) raise it as firmly as they can with the current detaining authority as something that needs to be regularised, and (b) flag it up to their own managers and/or their legal department, as it might result in a court application coming their way. This in the spirit of showing they have done what they realistically can to discharge their Article 5 duty. There is no question of the AMHP being expected to make any application themselves, and I doubt that in this kind of situation the local authority would usually be the right applicant either.

Like Michael, I hope that this case might encourage Trusts which have not already done so to agree a robust s.140 policy which might actually lead to urgent admissions being arranged. Too many policies at present are words only, with no agreed framework for action behind them.

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I’d just finished this posting in response to Anonymous 40, when I saw Simon’s response. So I’ll post my original, but thank Simon for his helpful response and pose the question at the end for his consideration as this was influencing my thinking that the local authority’s responsibility under the positive obligations may stretch further. Does the safeguarding role of the local authority alter their standing?

As I point out in my original posting, I believe that the implications of this judgement are wider than just police stations. Theis J, starts out by explaining at para. 3, that “The focus of this judgment is the relevant practice in situations as arose in this case…”. The key situation that arose was the potential for a person to be deprived of their liberty without a lawful framework. This, equally, can arise in a number of other situations, as you say more often in A&Es. The Official Solicitor prescribes a procedure which he states is for similar situations in police stations. However, I believe the crucial link for a wider inference is the Official Solicitor’s identification, at para. 33, of a positive obligation under Article 5 falling to the local authority. If it is the case that the positive duty obtains in this situation, it obtains not because it’s a police station but because the local authority knows, or ought to know, that there is a deprivation of liberty without a lawful framework and there is an obligation on the ‘State’ (public bodies) to either reduce the restrictions or make the situation lawful. If that is true in police stations, it is true in other contexts: where an AMHP wants to make an application for detention but there is no bed and there is no less restrictive option. There may be a variation to the weighting on the local authority to take the lead in other contexts (but I’m not sure of this). The judge and the Official Solicitor identified the burden as being on the local authority as they were the ones in this particular context who had more experience in applying to court under the MCA and inherent jurisdiction. The judge says at para. 39, that “in this situation” the local authority has the greater experience – possibly implying that in other situations this may not be the case. Whether court would see the acute hospital, in the situation of A&E deprivations, as having sufficient experience to have a similar burden, possibly, I don’t know. What is certainly the case, is that the judgement is saying that this should be a co-operative enterprise between the public bodies involved and proactive steps should be taken.

However, what is the position of the AMHP if the public body holding the person doesn’t go to court, even though encouraged by the AMHP to do so - which I’m anticipating will happen when I next assess someone in A&E without a bed? In Stork v Germany 2005, at para. 101, the Court stated that the State is “ … not only to refrain from an active infringement by its representatives of the rights in question, but also to take appropriate steps to provide protection against an interference with those rights either by State agents or private parties.”. In Staffordshire CC v SRK 2016, Justice Charles said that where “the local authority with the adult safeguarding role described by Munby J in Re A and Re C knows or should know of the situation on the ground and, as Munby J concluded, I consider that this triggers its obligations to investigate, to support and sometimes to make an application to court (or to consider doing those things).”. Does this mean that where a “state agent” (an acute hospital) is failing to take the matter to court, thereby “interfering with those rights”, and the local authority with the safeguarding role knows of this, that they have to take action? This is equally the question where AMHPs know that a 136 has expired and the trust is using “common law/best interest” to continue to detain the patient.

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I completely agree that the situation described here (an unlawful deprivation of liberty triggering positive Article 5 duties) can arise in many different circumstances, and that the local authority and the AMHP (if involved) need to be proactive in such cases and not just sit by passively. That could include supporting a court application, as the judge suggests here. However, that is not the same as the local authority being expected to make the application itself. If the person needs inpatient psychiatric treatment, the LA cannot provide it. I don’t therefore see that they have the legal standing to apply to court to impose the legal duty on another body, in this case on the Trust- it really isn’t their battle, and they are not themselves holding the person pending admission. The best they can do is to support it being brought before a judge, as in this case.

I repeat that the judge in the Surrey case isn’t saying anything different to this. Her comments in para 39 of the judgment, about the LA having greater experience, are in the context of who should pay the Official Solicitor’s costs. I don’t see anywhere any insistence that the LA needs to be the applicant to court. That surely depends on the circumstances, but normally the ‘right’ applicant is the body which has the power to hold the person and wants to get it authorised, or the body which is currently holding the person and wants another body with the same legal duties to take over responsibility.

I don’t think the local authority’s safeguarding duties affect this. The difference in the SRK case which John mentions is that the LA has responsibility for DOLS, and hence the power (and often the duty) to bring a community d.o.l. before the Court of Protection. So when Staffordshire knew about an unregulated d.o.l. they had a pathway for implementing their positive Article 5 duty. Here I don’t think there is such a pathway for the LA, though I would be happy to be corrected by a lawyer with more experience of the inherent jurisdiction.

It might still be appropriate for an AMHP (or anyone else) to raise it as a safeguarding issue if nothing was being done to move the situation along. Even though the safeguarding referral on its own would not guarantee action would be taken, it may be all they can realistically do in furtherance of their Article 5 duty.

Here, the body with ultimate responsibility is the Mental Health Trust, but as we know they have no absolute duty to admit anyone to hospital (which is one of the major frustrations for AMHPs)- they just have to show they have used their best endeavours to find a bed, and evidently in this case the judge was satisfied that they had. So I suspect that the least worst outcome was for the police to continue to hold PC until the bed finally became available, as happened here.

Finally, a lot of people have queried the making of back-to-back 136s. I would need to know more about the circumstances, but as Michael said earlier, on the face of it it looks unlawful, even though the judge didn’t comment on it (it seems no-one raised it as an issue, and she isn’t a mental health specialist herself).

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Simon, thank you for this. This situation has been exercising me for a number of years. Being aware of the Munby J Re A and Re C, and Charle J SRK judgements, I had always felt that we likely needed to act. As I mention above, I have hesitated to take it further as I had been cautioned that the Article 5 positive duty didn’t apply. When I saw in this judgement that the duty did in fact apply, in my head, it then followed that that knowledge of the d.o.l. led to the duty to investigate, support and go to court, as outlined in SRK. I can now see how the duty, although triggered, is necessarily qualified and therefore limited. I had always thought of it as an absolute - where it applied, all responsibilities for the state to make the d.o.l. lawful followed: of note, from Stork v Germany, where the State is to take action to protect against action or inaction of State agents. This is very helpful. You have led this fly out of it’s fly bottle!

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Just a shame the High Court would drown if it had to take c10,000 applications a year about this stuff.

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Just to be clear, there is clearly a duty on the state as a whole to address breaches of Article 5, as discussed in Storck v Germany. However, which agency of the state should have the lead role in taking this forward will I think depend on the circumstances. It’ll be a matter of the AMHP, and of the local authority, showing they have done what tbey reasonably can to regularise the d.o.l .

I saw Michael’s figures earlier, and why you think it would be 10,000 cases. Even 100 cases would put the High Court under strain. More than that would surely be unsustainable. Will this be another situation where public authorities get blamed for not fulfilling legal duties which are in practice unachievable? The real mischief lies in the inadequacy of mental health services to meet current needs.

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Hi Simon, I did some work about six or seven years ago where I estimated there were around 2,000 unlawful detentions a year in the situation considered by the court in this application, ie - someone arrested for an alleged offence, assessed MHA whilst in custody under arrest and s2 or s3 admission indicated but no bed available 2hrs after the PACE clock for the arrest obliged the person’s release on evidential grounds. In other words, once the police were obliged by law to release - for whatever legal reason, like insufficient evidence to prosecute or the 24hr PACE clock had run out - there was no MHA application by an AMHP because of a lack of a bed.

See here - Police reveal 'unlawful' mental health detentions - BBC News

This was a very conservative estimate because I didn’t want to be excused of over-egging the pudding but when I presented on it, NHS colleagues thought it was an outragous over-estimate and the reality could be nothing like as much. It led to the Cabinet Office being asked to examine it and they did a report on the matter which remained unpublished for several years, albeit the headline figures were shared with the police / NHS, etc… The BBC eventually forced disclosure of those headline findings under FoI laws, revealing the Cabinet Office had surveyed seven forces representative of the cross section of areas in England / Wales and it revealed there had been somewhere between 3,900 - 4,500 unlawful detentions in police custody because of a lack of a bed, per year.

See here - Mental health crisis ends in cells for too many, snapshot suggests - BBC News

Of course, this is just one way in which the ‘no bed’ nightmare manifests itself - the arrest / diversion scenario.

We also need to think about the s136 Place of Safety pathway, where the 24hrs expires without a bed and someone is held beyond that point, unlawfully. In forces with which I’m more familiar, this number is even bigger than the arrest/diversion scenario and most “no bed” nightmares are 135/6 related - mostly 136. A little more ‘back of the envelope’ maths is required because this hasn’t been as formally examined as the arrest/diversion stuff by the Cabinet Office, but that’s what gets you to the c10,000 threshold - the s135/136 versions of ‘no bed’ is a bigger number than the arrest/diversion numbers.

This may also be an under-estimate, because a lot has changed since 2018 (when the Cabinet Office research was done) and beds have been cut further, demand also having gone up.

Hope this helps explain - I didn’t just pick the number out of the sky but some estimation has been necessary on this because I doubt very much the NHS, LA or police want to be shouting loudly how many people are being unlawfully detained by them, for various obvious reputational and legal reasons.

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Coincidentally, this prevention of future deaths report has just been published.
Juan Martin: Prevention of future deaths report - Courts and Tribunals Judiciary
It includes:
Juan Martin was held informally on 7 April 2022 and following a mental health assessment on 11 April subsequently became liable for detention. He therefore spent 6 days in the Lotus Assessment Suite. Witnesses confirmed that no suitable bed was identified until approximately after 15:00 on 12 April 2022, which then became unavailable.
The Matron in Acute and Urgent Care confirmed bed capacity remains an ongoing problem and has not been resolved. The Matron provided one recent example where a patient waited for 7 days in the Accident and Emergency Department for a mental health bed.
The Matron added there was an exceptional process which required a considered decision at a high level to make a bed available through identifying someone currently occupying a bed space to be discharged and that the ‘flow’ of patients being discharged or moving to another setting amplified the bed capacity issue.

Based on the evidence heard, my principal concern is that bed capacity in London remains inadequate. Whilst some action may have been taken by the Trust to better triage the need for beds it is insufficient to resolve the problem. It follows there is a genuine risk of future deaths directly connected to a shortage of mental health bed spaces in London unless further action is taken.