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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