European Court got it right on mental health detention delay – Martha Spurrier

This piece is in response to Rosalind English’s post on this blog arguing that in M.S. v United Kingdom the European Court extended to far the ambit of Article 3 of the European Convention on Human Rights (ECHR), which protects against torture, and inhuman or degrading treatment. This post argues that the European Court’s ruling is both a logical step in the jurisprudence and a welcome one for the protection of those with mental health problems in state detention. 

M.S. v United Kingdom identifies a gap in the provision of crisis mental healthcare for those in state detention that has long been recognised by lawyers, campaigning organisations, carers, service users, the police and healthcare providers. The judgment is a welcome recognition of two things: first, that a prolonged and acute mental health crisis while in state detention can amount to degrading treatment for the purposes of Article 3 ECHR. And second, that the state is responsible when delays in the provision of psychiatric care to those in detention cause someone with mental health problems to descend into a crisis that is degrading and undignified.

Section 136 of the Mental Health Act 1983 (MHA) provides for people with mental health problems to be detained for up to 72 hours in “places of safety” when they are in need of immediate care or control. Section 135(6) MHA identifies that a police station can be a place of safety. However, the MHA Code of Practice in force at the time stated:

10.5…As a general rule it is preferable for a person thought to be suffering from a mental disorder to be detained in a hospital rather than a police station.”

“10.8.c. Where a police station is used as a place of safety speedy assessment is desirable to ensure that the person spends no longer than necessary in police custody…

Concerns about the use of police stations as places of safety have been raised by a number of organisations, including Mind, the Royal College of Psychiatrists and the Mental Health Alliance. A police cell is not a therapeutic environment for someone experiencing mental distress, potentially delaying the provision of effective treatment and exacerbating mental health problems. This sentiment finds official support in Home Office Circular 66/90, the memorandum that accompanies the MHA 1983, the joint Home Office and Department of Health review of health and social services for mentally-disordered offenders (Final Summary Report, Cm 2088) and the National Service Framework on Mental Health. In spite of this, in 2004 a survey found that police cells were being used in 80% of cases where section 136 powers were invoked, usually because no other accommodation could be found.

Widespread failing

The Mental Health Alliance has reported widespread feeling among police, social workers, service users and carers that police stations are inappropriate places for holding those with mental health problems, a feeling echoed in the blogosphere following the judgement in M.S. v United Kingdom. The police in M.S.’s case were no different: they recognised that M.S. should not be in a police cell, tried to get him transferred to a hospital and expressed concern and frustration when this was not possible. It is admirable and right that they did so, and the European Court of Human Rights recognises this in its judgment. The fault did not lie with individuals. The failing in this case was a systemic one: in 2004, Birmingham (where M.S. lived) had no healthcare facilities designated as places of safety and as a result M.S. could not be provided with the urgent medical care that everyone agreed he needed.

In 2008 the Report to the UK Government arising out of the visit carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) stated:

148. The CPT also has concerns with respect to the availability of appropriate psychiatric care for persons detained by the police …detained persons who display severe psychiatric disorders should be transferred without delay to a mental health facility. The CPT recommends that immediate steps be taken to ensure that detained persons with mental health disorders, held in police stations, are provided with appropriate care and treatment, until they are transferred to a mental health facility.

M.S.’s case is sadly resonant of these concerns, highlighting the very real risk for those with mental health problems that crisis care will not be available when they are suffering extreme mental distress, even when they are detained and therefore at their most vulnerable. These concerns, and others, were identified by Mind in its recent independent inquiry into acute and crisis mental healthcare, Listening to Experience.

The mental health crisis that M.S. suffered in the police cell over four days included him banging his head against the cell wall, beating his chest, stripping naked, drinking from the toilet bowl, ranting incoherently and smearing himself in food and faeces. In the press it has been suggested that finding that this amounted to degrading treatment is tantamount to interpreting Article 3 as a socio-economic right. This is misconceived.

The obligation to prevent extreme suffering is concomitant with the duty not to cause it. People detained by the state are vulnerable, all the more so if they suffer from mental health problems. In this case the state failed to prevent the degrading and humiliating conditions that M.S. had to endure while in detention. The European Court in M.S. v United Kingdom has not carved out a right to treatment; it has extended the right to be protected from indignity in detention that is already well-recognised in its jurisprudence (Keenan v United Kingdom).

There is no doubt that this case represents an extension of the Article 3 case law by finding that unintentional delay in the provision of services can result in a breach of Article 3. But the genesis of this judgment can perhaps be found in Aerts v Belgium where the Court found that there had to be a proper relationship between the aim of detention and the conditions in which it took place, namely that detention on the basis that someone was of “unsound mind” (Article 5(1)(e)) should take place in a therapeutic environment and not a prison. With this in mind it is not surprising that the Court was willing to go a step further and find that where a person is detained in an inappropriate and damaging environment, the effects may be so extreme as to breach Article 3.

It can only be hoped that this judgment will add another authoritative voice to those calling for the gap in crisis mental healthcare for people in police detention to be filled.

Martha Spurrier is a barrister and in-house counsel at Mind, a mental health charity

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9 thoughts on “European Court got it right on mental health detention delay – Martha Spurrier

  1. I fully agree with this position and similarly to its author was surprised to read in the first report on this judgment that M.S.’s treatment was solely a violation of ESC rights. A recent Strasbourg judgment (Stanev vs. Bulgaria) ruled that Article 3 violations – resulting, among other things, from lack of adequate care – can also take place in social-care institutions. Some practices in the treatment of people with psychosocial or intellectual disabilities are frequently a violation of both their CP and ESC rights. Our failure to recognise this earlier has left some of the most vulnerable people exposed to even more damaging abuse..

  2. when the Govt persuades everyone to pay a fair tax so there is money available for lots of safe secure units then this situation will end but I think the police did the best they were able to at the time.

  3. I agree fully with this position. As a former county-wide lead in Forensic Clinical Psychology, we long ago recognised that police cells were not appropriate “places of safety” With the best will in the world custody officers are not trained to manage acute mental illness or distress. As a result, when we set up our Court Diversion scheme we worked with all relevant parties to make sure that the designated place of safety was the local Psychiatric Intensive Care Unit. Police Officers were given training by mental health staff on the recognition of mental illness thus, as far as possible, ensuring that S136 patients were taken immediately to the unit. This has worked well over the years.

  4. The mentally ill especially those with an organic base should not be placed in the Criminal Justice System except for the most serious crimes. The criminal justice system itself leads to exacerbation of the original problem.
    Civilized people from the future will look back in horror at the way mentally ill Defendants are treated. Our system will be viewed with the same horror as we do when we look back to the 1960’s where young girls were incarcerated for years in approved schools for getting pregnant or being found drunk.
    Placing mentally ill defendants on bail for years is as much a form of torture as locking them in a police cell. We have a system now which permits the torture of those who are emotionally vulnerable and not able to defend themselves.
    We have a situation where the majority of women in prison are either mentally ill when they enter the criminal justice system or seriously damaged by the system. Campaigners say that incidents of self-harm among women prisoners are increasing. Government statistics reveal 10,446 cases of self-harm during 2009, rising to 12,663 the following year. Analysis by Women in Prison estimates that the figure is likely to rise above 13,000 – more than 35 a day. There are 4,100 women in prison, only5% of inmates, yet they account for almost half of self-harm incidents.
    The Police can be excused for their callous attitude to vulnerable suspects but well educated Barristers should be deeply ashamed of the harm they do prosecuting defendants with mental health problems for non violent crimes. Indeed this is against the Public Interest,
    As a society it is time we treated mentally ill Defendants with compassion and put a system in place to take them out of the criminal justice system which causes them so much harm.

  5. I totally agree with this judgment. Prison Cells are designed for minimum comfort they have nothing to distract the mentally ill from the dwelling on their problems. This is torture.

    It does lead one naturally to consider how mentally ill people are treated by the System as a whole. we need a complete review of how Mentally Ill Defendants are treated.

    I know of one case where an organic mentally ill Defendant has been kept on bail for two and a half years and re-bailed 20 times for a non violent offense where no money has been lost. In my view this is inhuman and degrading treatment and amounts to mental torture.

    The more lives we ruin through wrongly diverting the Mentally ill into police custody or the Criminal Justice System the more damaged our Society becomes as a whole.

    If resources are available to incarcerate and prosecute the mentally ill then resources are available to help them lead a normal life.
    The Legal profession has a responsibility as a whole, in the public interest, to bring some sanity to the criminal Justice System and find a way to divert mentally ill defendants away from it.

  6. Thank God for this judgement: This is a personal account of reality and our experiences: Ironically according to national guidance my son was in the “highest risk category for successful suicide” being “Young, male, with a violent self harm history” however short! My 29 son may have been safer in police custody but as his violence was to self, and on presentation, he was sent away with a leaflet then after harming again for a second time, was eventually sectioned “for his own safety”.

    Whilst on the wards, under the duty of care of the States agents, he was moved 6 times in as many days, was inadequately observed and care was patchy. Worries re physical health were generally ignored and ‘care’ was “primarily carried out by Healthcare assistants” . After just a few days on the wards (and left totally unobserved for 48 hours when post-op IV antibiotics were needed ) my son was “found” (how do you find someone you are observing?) fatally wounded in a bathroom and moved to hospital in London for life support.
    There was no investigation, no police called, the alleged weapon or potential crime scene was not secured, notes were scant and eventually four senior managers left (CEO to SHA) and whole Board stepped down BUT nobody has explained anything!

    Inquest hearing was horrendous, where we found Trust had failed to submit key documents(or Coroner failed to request them?) and the verdict of suicide was based on “the balance of probabilities” ….yet another system we had,had no previous experience of! Coronial Reform was promised too but this has failed to materialise.

    2010/11- We were eventually granted “an Independent Care and Treatment Inquiry” by SHA NHS London Title suggests there was any! and we were told Root Cause Analysis was used (despite the Inquiry being almost 6 years after my sons death!) Subsequent report was a whitewash, with no alignment of system failures to care pathways and not clear how lessons could be learned!
    I fully agree that a complete review of mental health services needs to be carried out especially where ill people are taken to the cells and not hospital.
    Pleased to say we have built a good rapport with new Trust team and they are keeping us informed of implementation of recommendations. However, the death of a child (no matter what age) needs to be explained….and this is WIP!

  7. Thank God for this judgement: This is a personal account of reality and our experiences: Ironically according to national guidance my son was in the “highest risk category for successful suicide” being “Young, male, with a violent self harm history” however short! My 29 son may have been safer in police custody but as his violence was to self, and on presentation, he was sent away with a leaflet then after harming again for a second time, was eventually sectioned “for his own safety”. Whilst on the wards, under the duty of care of the States agents, he was moved 6 times in as many days, was inadequately observed and care was patchy. Worries re physical health were generally ignored and ‘care’ was “primarily carried out by Healthcare assistants” . After just a few days on the wards (and left totally unobserved for 48 hours when post-op IV antibiotics were needed ) my son was “found” (how do you find someone you are observing?) fatally wounded in a bathroom and moved to hospital in London for life support. There was no investigation, no police called, the alleged weapon or potential crime scene was not secured, notes were scant and eventually four senior managers left (CEO to SHA) and whole Board stepped down BUT nobody has explained anything! Inquest hearing was horrendous, where we found Trust had failed to submit key documents(or Coroner failed to request them?) and the verdict of suicide was based on “the balance of probabilities” ….yet another system we had,had no previous experience of! Coronial Reform was promised too but this has failed to materialise. 2010/11- We were eventually granted “an Independent Care and Treatment Inquiry” by SHA NHS London Title suggests there was any! and we were told Root Cause Analysis was used (despite the Inquiry being almost 6 years after my sons death!) Subsequent report was a whitewash, with no alignment of system failures to care pathways and not clear how lessons could be learned! I fully agree that a complete review of mental health services needs to be carried out especially where ill people are taken to the cells and not hospital. Pleased to say we have built a good rapport with new Trust team and they are keeping us informed of implementation of recommendations. However, the death of a child (no matter what age) needs to be explained….and this is WIP!

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