Recently we have received a number of enquiries about policy cover in relation to the possible detention of individuals with mental health issues who are no longer subject to the Police and Criminal Evidence Act 1984 (PACE) / detention. In some cases we have seen claims flow from such situations. A note (August 2017) on this subject was prepared by the Police Superintendent’s Association of England & Wales (PSAEW) setting out some of the practical legal challenges that have arisen.
The issue that needs to be considered is the fact a Superintendent, in doing what they believe to be ‘the right thing’, may be making decisions without possible legal authority and therefore potentially place themselves at risk of legal or disciplinary proceedings.
In this case the ‘right thing’ is to detain an individual, outside of PACE, who maybe struggling with issues of mental capacity and where the continued detention is thought essential for the individual’s own welfare until a suitable alternative solution (possibly hospital admission) can be achieved. The detention will usually be for a short period of time – maybe no more than a few hours.
The purposes of this paper is to set out the position in relation to the public liability cover offered by RMP/QBE , and we recommend if you are not insured with RMP/QBE for public liability risks that you seek your own independent advice from your insurer/broker.
In explaining our position with regard to policy cover, we have also taken the opportunity to clarify some other points so as to contribute to the wider discussion around this highly sensitive subject. In setting out our thoughts we have canvassed the views of a number of leading law firms on this topic and fed that advice into the points below.
This case involved the removal of the claimant from his home to the police station in order for him to undergo mental health assessment. Removal from home is not permitted under s136 MHA 1983, only from a public place. The only power open to the officers in this scenario was to arrest for breach of the peace, and that was not executed correctly, meaning the force were liable for false imprisonment and assault.
Police Superintendents’ Association of England and Wales – PSAEW advice to the Superintending ranks: detaining individuals with mental health issues who are no longer subject to PACE/detention – Dated August 2017.