Terry McGuinness analyses a Strasbourg decision dealing with the unlawful treatment of a mentally-ill man in police custody
The European Court of Human Rights, in MS v UK, has unanimously held that the detention of a mentally-ill man in police custody for more than three days violated the prohibition on inhuman or degrading treatment under Article 3 of the European Convention on Human Rights. The Chamber accepted there had been no deliberate intent on the part of the police to humiliate Mr S. and recognised that the custody record was evidence of the real concern that Mr S be transferred to a clinic. However such was the applicant’s vulnerability and dire need for urgent psychiatric care, the conditions he had to endure until his transfer to a clinic on day 4 of his detention amounted to degrading treatment.
In the early hours of 6 December 2004 the applicant was found by police in his car, continually sounding its horn and acting in a highly agitated manner. It was clear, following his arrest, that he was unwell. His detention at a Birmingham police station was authorised under the Mental Health Act 1983. Section 136 of the Act allows the detention of a person suffering a mental disorder for up to 72 hours for the purpose of being examined by a doctor and receiving treatment. Police then attended Mr S.’s address and found his aunt with serious and extensive injuries to her face and upper body. The injuries had been inflicted by the applicant.
Mr S.’s mental health was assessed by two psychiatric specialists as warranting his detention in hospital in the interests of his own health and safety and for the protection of others. However in view of the fact that Mr S. might be charged with an offence and remanded in custody, a consultant psychiatrist at the local Reaside Clinic did not consider the clinic’s involvement as immediately necessary.
On the second day of the applicant’s detention the CPS concluded there was insufficient evidence to charge him with an offence. On the third day of detention Mr S.’s mental health was assessed by Reaside’s clinical director. Following discussion with his nursing staff, it was his opinion that Mr S.’s admission in the middle of the night, just before the expiry of the permitted period of detention, would pose unmanageable risks for all concerned. The next morning, and after more than 72 hour’s detention during which his condition seriously deteriorated, Mr S. was brought in handcuffs to the clinic where he received treatment.
In its judgment the Chamber referred to the 2008 report by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT):
“148. The CPT also has concerns with respect to the availability of appropriate psychiatric care for persons detained by the police. More than once, members of the CPT’s delegation were told that the behaviour of some detained persons became so erratic that custody officers considered it necessary to tie them naked to a chair in order to prevent any acts of self-harm. Such treatment is clearly unacceptable and should be stopped immediately. In such cases police officers should immediately call a doctor and act in accordance with his instructions. Further, 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.”
The UK government response, published in November 2009, asserted:
“432. Where a police station is used as a place of safety, immediate contact is made with local social services and the appropriate doctor, to ensure that an assessment is conducted effectively and quickly, and transfer to a more appropriate location, where necessary, is arranged at the earliest opportunity.”
The Court accepted that the police wished to see the applicant transferred to a clinic as quickly as possible and endeavoured continuously to bring this about. During his detention he was in a place of relative safety for him. Nevertheless, during this time no psychiatric treatment could be provided to him. The Court found the situation to have arisen out ‘difficulties of coordination between the relevant authorities when suddenly confronted with an urgent mental health case’. It described as significant the failure to respect both best medical practice in England and the statutory maximum time-limit for detention under section 136.
In its submissions to the Court the UK government claimed the applicant’s case had led to improvements in the arrangements between police and heath authorities to respond more rapidly in such cases. This is undoubtedly to be welcomed. However there remains progress to be made on police understanding of the particular vulnerability of those detainees with mental ill health and on the need for speedy cross-agency responses when faced with urgent cases.
The key Bradley Report of 30 April 2009 described post-arrest detention in the police station as ‘currently the least developed in the offender pathway in terms of engagement with health and social service’ and described training for police officers on mental health awareness as ‘inadequate’. Of particular significance, in the light of MS, Lord Bradley found:
“There are widespread concerns among stakeholders about the current assessment of detainees. Significantly, I have been told on a number of occasions that the perception is that if a person is detained in custody, they are in ‘a safe place’ and as such there is a delay in medical teams responding to assess a patient.”
The Improving Health, Delivering Justice national delivery plan published in November 2009 by the Department of Health accepted Bradley’s criticisms and promised (emphasis added):
“We will work to understand and develop the response to training needs for police officers, police civilian staff and healthcare professionals to ensure that people in police custody who are vulnerable due to mental ill health, physical ill health or social considerations have access to competent practitioners by April 2011.”
The ACPO Guidance on Responding to People With Mental Ill Health or Learning Disabilities published in 2010 acknowledged the need to improve the coordination between the police and mental health agencies. The guidance emphasised:
“it is essential that people with mental ill health or learning disabilities are recognised and assisted by officers from the very first point of contact.”
It is to be hoped that the Court’s decision in this case will serve as a timely reminder of the importance of this principle.