Mentally Vulnerable People

Question 1

What is the Mental Health Act Code of Practice (Department of Health, 2015)?

Answer 1

The MHA 1983 is used in relation to people with mental illness.

Question 2

Mental ill health comprises a variety of disorders, including…

Answer 2

Psychotic disorders (e.g schizophrenia)

Mood disorders (e.g depression or bipolar disorder)

Personality and anxiety disorders (e.g panic attacks and phobias)

Question 3

Learning disabilities cover a wide range of conditions with …”

Answer 3

…significant impairment of intelligence and social functioning”.

(s 1(4) of the MHA 1983)

Question 4

What must be done when individuals with learning difficulties are giving witness statements?

Answer 4

They are identified as such.

Question 5

It is not an offence to be mentally disordered in a public place. However, s 136 of the MHA states…

Answer 5

If a police officer finds in a place to which the public have access, a person who appears to be suffering from mental disorder and to be in immediate need of care or control, a police officer may remove that person to a place of safety if it is necessary to do so in the interests of that person or for the protection of other persons.

Question 6

According to s 136 of the MHA, what are the two reasons for detaining the person?

Answer 6

1. If it is necessary to do so in the interests of that person.
2. For the protection of other persons.

Question 7

Considering s 136 of the MHA, what is a place of safety?

Answer 7

A place of safety could be:

• your home
• the home of someone you know
• a healthcare setting, such as a hospital ward or accident and emergency (A&E) department
• a police station

Your friend’s or relative’s home should not be used as a place of safety if:

• you don’t agree it should be used
• someone who lives in the property doesn’t agree that it should be used

Question 8

A police officer can’t take you from the following places using s136:

Answer 8

• your home
• someone else’s home
• a yard, garden, garage, or outhouse that is used in connection with the home

Question 9

According to s 136 of the MHA, if a person needs to be transported to a place of safety what should be used?

Answer 9

Hospital or ambulance transport.

Police transport should be used in cases of extreme urgency or where there is a risk of violence (Code of Practice, para 16.32).

Question 10

Police station cells can only be used as a place of safety for adults in certain circumstances and never for children (under 18s) suffering from a mental ill health.

How long can a person be on a Section 136?

Answer 10

You can be on this section for up to 24 hours. During this time, a medical examiner will assess your mental health to decide if you need to be in hospital or not. A medical examiner can extend the section for up to 12 hours if:

• it is not possible for the assessment to be done before the end of the 24 hours
• your assessment is still going on at the end of the 24 hours
• Power to search under s 32 of the PACE Act 1984

Question 11

The Police sometimes get called to a private place to restrain or help a mentally disordered person.

What legislation does this fall under?

Answer 11

section 135 of the Mental Health Act 1983

Question 12

S135 may be used if someone thinks you are not well and need to be in hospital for mental health treatment. S135 is used in 2 situations…

Answer 12

When professionals believe that you have a mental illness and:

• you are in a private place such as your home
• you are not able to care for yourself
• you are being treated badly by someone
• you are being neglected by your carer

Or:

• you are in a private place
• you were detained in hospital or other accommodation under the Mental Health Act but you have left without permission.

Question 13

How can a section 135 be used?

Answer 13

The situation may prove difficult and require the use of police powers.

These powers require the officer to apply to a magistrates’ court for a warrant to get access to the home, to authorise entry and search to remove person believed to be suffering from the mental disorder.

An Approved Mental Health Professional (AMHP) must be present.

Question 14

Can a mental ill person, once detained under section 135/136 be interviewed for questioning if suspected of committing an offence?

Answer 14

Yes, but only with an appropriate adult.

An interview without an appropriate adult needs to be approved by the rank of superintendent or above.

Question 15

Procedures at the place of safety

The detention period under ss 135 and 136

Answer 15

Must not exceed 36 hours from the time of arrival in the first place of safety (24 hours with a possible extension of 12 hours).

Question 16

Detention under ss 135 and 136

A person removed from a public place to a place of safety may be detained there, but only:

Answer 16

• To be examined and assessed by a registered medical practitioner
• To be interviewed by an approved social worker; or
• While necessary arrangements are made for his/her treatment or care

Question 17

Where a person displays disturbed behaviour when now in a place of safety, and therefore need additional care and control, what must be done?

Answer 17

This care and control should be provided by the doctors and nurses (using their powers under s 5 of the MHA and Code of Practice, para 16.20) and the police should not be called to intervene under s 136 of the MHA.

Question 18

On occasions where there are suspicions that a person in a place of safety has been suffering ill treatment or neglect, or is not being kept under proper control what can be done?

Answer 18

In such circumstances, the officer can execute a warrant under s 135 of the Policing and Crime Act 2017 to initiate procedures for alternative provisions to be made in the current location.

The officer is not obliged to remove the person to another place of safety (s 135(1A)).

Question 19

What is the Mental Capacity Act 2005 (MCA)?

Answer 19

Provides a broad legal framework which aims to protect vulnerable people aged 16 or over (s 2(5)) who do not have the capacity to make their own decisions (e.g through illness, unconsciousness, alcohol, drugs or a severe learning difficulty that has been present from birth).

The Act also empowers and offers protection to carers and other (e.g police) who find themselves involved in the protection of vulnerable people (e.g s 5 provides power to carry out acts related to care/treatment such as restraint).

Question 20

General principles underlying the Mental Capacity Act 2005

Section 1(1) of the MCA provides some key principles, for example that a person:

Answer 20

(2) A person must be assumed to have capacity unless it is established that he lacks capacity.
(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

Question 21

Judging a person’s mental capacity

What is capacity?

Answer 21

The ability to take in information and use that information to make decisions.

A lack thereof could be caused by an impairment or disturbance in the functioning of the mind or brain (s 2(1)). e.g learning difficulty, dementia, toxic confusion from drug use etc.

Question 22

Mental Capacity Act 2005

3 Inability to make decisions

(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable—

Answer 22

(s 3)

(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means).

A lack of capacity cannot be established merely by reference to—

(a) a person’s age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.

Question 23

Mental Capacity Act 2005

4 Acting on behalf of a person who lacks capacity (best interests)

In determining for the purposes of this Act what is in a person’s best interests, the person making the determination must not make it merely on the basis of—

Answer 23

(a) the person’s age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.

Question 24

Mental Capacity Act 2005

4 Acting on behalf of a person who lacks capacity (best interests)

(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.
(3) He must consider—

Answer 24

(a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and
(b) if it appears likely that he will, when that is likely to be.
(4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.
(5) Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.

Question 25

Mental Capacity Act 2005

4 Acting on behalf of a person who lacks capacity (best interests)

(6) He must consider, so far as is reasonably ascertainable—

Answer 25

(a) the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),
(b) the beliefs and values that would be likely to influence his decision if he had capacity, and
(c) the other factors that he would be likely to consider if he were able to do so.

Question 26

Mental Capacity Act 2005

4 Acting on behalf of a person who lacks capacity (best interests)

(7)He must take into account, if it is practicable and appropriate to consult them, the views of—

Answer 26

(a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,
(b) anyone engaged in caring for the person or interested in his welfare,
(c) any donee of a lasting power of attorney granted by the person, and
(d) any deputy appointed for the person by the court,

Question 27

Mental Capacity Act 2005

4 Acting on behalf of a person who lacks capacity (best interests)

If the actions are resisted…

Answer 27

If the actions are resisted (despite efforts to communication and encourage participation) then restraint may be needed.

There must be reasonable belief that restraint has to be used to prevent harm to the person, and the restraint must be proportional (s 6).

Question 28

Some people have particular caring or legal responsibilities for an individual who lacks capacity, and may also have a power of attorney. It is an offence under what legislation for any such carer or responsible person to ill-treat or wilfully neglect a person.

What does this include?

Penalty?

Answer 28

s 44 of the Mental Capacity Act 2005

Includes physical, psychological, financial, domestic, discriminatory or sexual abuse.

Offence is triable either way and the penalty is a fine or imprisonment (summarily 12 months, and 5 years on indictment).