Scenario - a person is arrested then sectioned under the MHA. What happens after a person is sectioned and they are released from hospital? Will they be released to police custody? Does the detention under the MHA have any impact on the original arrest?
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I remember a patient who was arrested for affray and the next day he was detained under section 2. When his section was rescinded, we contacted the police and they have dropped the charges as well. I assume it depends on the charges and police?
Iāve asked a similar question elsewhere and it seems to depend on the type of section and whether it was the outcome of a court hearing? If so, Iāve been advised that whether the individual is discharged into community or goes back into the criminal system is a decision for the MoJ. Only MoJ or a MH tribunal can discharge from hospital where the section relates to an index offence; once the RC decides the patient is fit to plead (assuming the section was a result of a court process). In the worst case scenario, any ātimeā spent sectioned counts towards any time that the individual would have been expected to serve had they been imprisoned (if found to have been in control of the offence) as a result of court proceedings.
If someone, say, has a severe psychotic episode and badly injures someone, itās likely they werenāt in control of the offence (evidenced by being sectioned by the judge instead of going to prison or other punishment). To the best of my experience that black and white scenario means that discharge is ultimately dependent on them being well enough (and ātimeā is incidental).
From my experience the clear occasion when the patient may go back into a āpunitiveā criminal system is when they started off in it (i.e. custody) but then became unwell and get transferred to a MH hospital while awaiting a court hearing (which in turn would be dependent on them being fit to plead).
Please note Iām replying from personal experience of navigating for a family member over the past 9 years sectioned under 37/41 (Iām not a lawyer)
The following is not advice even if it sounds like advice. Please seek independent legal advice where appropriate for your or another personās particular circumstances
Your post did not initially specify the entity doing the arrests or reasons for arrest.
Then the question āWill they be released from police custody?ā led me to cautiously infer that the context is that of police arrest.
A person can be arrested by the police for a number of reasons -
- Suspicion of a Criminal Offence
- Preventing Harm or Further Offences
- Protecting a Vulnerable Person
- Ensuring Attendance at Court
- Preventing Witness Intimidation
- Public Order & Safety
- Drug-Related Crimes
- Drink/Drug Driving
- Breach of Court Orders
- Outstanding Warrants
[not a full list]
Arrest by the police often does not automatically lead to āsectioningā (detention in a hospital). Some people believe that S136 MHA 1983 is an arrest and some donāt. Iām not getting into that sort of debate.
For persons detained by the police and then transferred to an appropriate place of safety under S136, that is not detention in a hospital (unless in rare instances the NHS Trust decides to run āflip bedsā).
Sectioning is a separate process to arrest by the police (perhaps with an exception I cannot readily recall).
Release from hospital detention under MHA, is not a police matter.
Detention in hospital is usually a separate matter to police custody. On occasions a person my be ābailedā to an inpatient facility - seen it happen. Discharge from hospital will then follow police protocols and yes - re-arrest is possible, depending on particular circumstances.
This is a vast area - depending on the type of āsectionā and whether (inter alia) a community treatment order is implemented for Section 3 MHA. [Not everybody post-S3 gets a CTO]. What also happens post S3 discharge, is also governed by S117 (which is not a form of compulsion or detention).
A person can be āsectionedā for certain mental disorders under certain parts of the MHA alongside but not āforā alleged or proven criminal offences (there are some uncommon exceptions that are complex/complicated). Those sections are serious - can involve the courts and/or prisons and/or the Ministry of Justice depending on the nature of any alleged or proven criminal offences. [Caution: Iām trying to keep this as simple as possible - so for sure oversimplification runs the risk of introducing errors]
Please seek independent legal advice where appropriate for your or another personās particular circumstances
I think the original question is simply asking what happens to a person who is arrested and then (during the post-arrest police detention period) is moved to hospital under s2 or s3 MHA. The short answer, I think, is that the person is released into the community just like any other s2 or s3 patient (not into police custody). The effect of the MHA on police detention and investigation decisions is mentioned on the College of Policing website at https://www.college.police.uk/app/mental-health/mental-health-detention:
Transfer to detention under the Mental Health Act 1983 from police custody
Section 34(2) of PACE obliges the custody officer to release the person from police detention once a decision is taken not to charge the suspect. This may be either with or without bail, or under investigation depending on whether the investigation will continue after release.
If, following assessment by an AMHP (and/or s 12 doctor), the detainee is to be transferred to a hospital or other mental health unit for treatment and care, the individual enters a condition of legal custody under the MHA 1983 (s 137) at the point where an AMHP makes a written application for that personās admission to a hospital. After completing a MHA 1983 assessment in police custody, the personās detention remains governed by PACE until the AMHP completes this application for admission.
Once a custody officer learns that the AMHP wishes to apply for admission under the MHA 1983 or admit the patient voluntarily, they need to decide whether or not criminal charges will still be immediately brought (for example, because the alleged crime is an especially serious one). If this is not the case, the custody officer is required under PACE to release the person without charge if diversion (away from a criminal justice outcome and towards healthcare support) will fully end the consideration of any prosecution. If prosecution may be still considered at a later stage, they are required to release the person on bail.
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If a person has been ābailedā to an inpatient facility that means once their hospitalisation is over they will be released into police custody?
I donāt know the specifics of the OP but the situation Iām supporting a family member with resulted from a 37/41 section at crown court (not a bail situation)
Taking that as a question, I think the answer is No ā the police could change could change the bail address, or take any other action they could have taken if youād been bailed somewhere else.