Policing and Crime Bill (Sixth sitting)

Lord Beamish Excerpts

Committee Debate: 6th sitting: House of Commons
Tuesday 12th April 2016 Public Bill Committees

[Jack Dromey]

First, the Police Minister is right to be frank: this set of proposals will put pressure on not just the police but a whole range of other agencies. I note what he said of Her Majesty’s inspectorate of constabulary and its PEEL reports, and I add that the College of Policing and the Home Affairs Committee will keep this matter under review. I also welcome the proposed memorandum of understanding so that we can make the new system work. On that basis, and given those assurances, we will not press our amendments to a vote.

Amendment 148 agreed to.

Clause 50, as amended, ordered to stand part of the Bill.

Clauses 51 to 59 ordered to stand part of the Bill.

Clause 60

Restrictions on places that may be used as places of safety

[Mr Kevan Jones (North Durham) (Lab)]

I beg to move amendment 157, in clause 60, page 68, line 29, at end insert—

“( ) Before a house, flat or room where a person is living is used as a place of safety the patient must first be offered one of the following locations as an alternative place of safety—

(a) a residential accommodation provided by a local social services authority under Part III of the National Assistance Act 1948 or under paragraph 2 of Schedule 8 to the National Health Service Act 1977;

(b) a hospital as defined by the Mental Health Act 1983; or

(c) a mental health care home.”

This amendment would require that a patient was offered a health-based place of safety as an alternative to their, or someone else’s, home being used as a place of safety.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 159, in clause 61, page 69, leave out lines 31 to 38 and insert—

“the point at which the decision is taken to remove a person to a place of safety, or keep them at the current place of safety.”

This amendment would mean that the permitted period of detention started when the decision was taken to remove a person to a place of safety, rather than the point at which they arrived at the place of safety.

Amendment 158, in clause 61, page 69, line 31, leave out “24” and insert “12”.

This amendment reduces the permitted period of detention to 12 hours.

Government new clause 28—Protective searches: individuals removed etc under section 135 or 136 of the Mental Health Act 1983.

New clause 11—Detention in places of safety: annual reporting—

“(1) Police forces in England and Wales must publish an annual report containing statistics on the usage of the power to detain a person in a place of safety.

(2) This report shall contain, but need not be limited to, information on—

(a) the number of detentions;

(b) the age of detainees;

(c) the length of detention; and

(d) the location of the detention.”

This new clause would require police forces to report annually on the number of detentions in places of safety, including information on the age of the detainee and the location and duration of the detention.

New clause 12—Access to Independent Mental Health Advocates—

“(1) A person detained in a place of safety under section 135 or 136 of the Mental Health Act 1983 shall have the right to an independent mental health advocate (see section 130A of the Mental Health Act 1983).”

This new clause would extend the right to an independent mental health advocate to those detained under sections 135 or 136 of the Mental Health Act 1983.

New clause 50—Powers under the Mental Health Act 1983: reporting and review—

“(1) One year after section 59, 60 and 61 of this Act come into force the Secretary of State must lay before parliament a report on the impact of the changes to powers under the Mental Health Act 1983 on mental health assessment and outcomes.

(2) This report shall contain, but need not be limited to, information on—

(a) length of time taken from commencement of mental health assessment of an individual under sections 135 or 136 of the Mental Health Act, to either the discharge, admittance to hospital or extension of period of detention of these individuals,

(b) availability of trained medical professionals to carry out assessments, and

(c) availability of hospital beds for persons deemed to require inpatient care.

(3) In producing this review the Home Secretary must consult the Secretary of State for Health.”

This new clause would make it mandatory for the Home Secretary to report on the impact of Section 59, 60 and 61 on mental health assessment and outcomes. This would allow for scrutiny of whether the proposals improve the outcomes for those subject to police detention and mental health assessment, and whether health providers have the capacity to carry out timely assessments and provide any necessary inpatient care.

[Mr Kevan Jones]

It is a pleasure to serve under your chairmanship, Mr Howarth. I have said in Committee, and on the Floor of the House, that I recognise that the Government are trying to make progress on ensuring that the way in which people with mental illness are treated by the police is both compassionate and secures them the help that they deserve. The problem that is evident today, and will be as the Bill continues its journey through this House and the other place, is that although the Home Department is trying to improve the situation, the elephant in the room is the resources and activities of the Department of Health. This is an area in which two Departments are intertwined, because the issues are quite clearly not, in essence, a police matter, although the police are left to resolve the problem.

Amendment 157 recognises that the Government have tried to emphasise that a police cell is the worst place for not only a young person but an adult. I commend the Government’s initiative in trying to ensure that few adults, and certainly no children, are detained in a police cell. We have to ask why they are currently detained, which is—I am going to be very political—because of the reduction of beds and facilities by the Department of Health. I have tabled amendment 157 because the Government, quite helpfully, have no objection to a place of safety, under the Mental Health Act 1983, being someone’s flat or home, because that is a place in which those individuals can be supported by mental health services and other agencies. That is important. The problem is that it might become the default position that people are forced to stay in their homes if an alternative is not available. I put it to the Committee that most of us, given the choice between staying at home or being in a police cell, would stay at home. However, that does not guarantee that home is the best place of safety.

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[James Berry (Kingston and Surbiton) (Con)]

The hon. Gentleman makes a good point and speaks with authority on the subject. Does he recognise that there are some excellent local examples of clinical commissioning groups working well with the police? In Kingston we have a new project where the mental health trusts, the clinical commissioning group and the Met police have come together to provide just the kind of facility we are talking about. Although there is more to do nationally, there are some good local examples of the policy working.

[Mr Kevan Jones]

I agree with the hon. Gentleman. One of the few good things that came out of the Health and Social Care Bill was that it allowed local providers to develop contracts out of the box, perhaps with the third sector and others, to provide good local services. I am on record as having said that. I have to say that in my own area and nationally that has not happened in practice because unfortunately the default position is that the contracts that have been awarded are so large that a lot of small, good voluntary organisations that could provide those services are not getting a look in.

The hon. Gentleman makes a good point about the project in his constituency, but we need to ensure that there is uniformity across the piece. If we have a situation where the only option is for people to go to a police station or stay at home, that is not satisfactory.

Amendment 159 is also probing, aiming to explore and again bring pressure on the Department of Health. With regard to the time limits put in place around the place of safety, it is important that people are assessed quickly. It is no good waiting, in a police cell, hospital or any other facility, for a long time without assessment.

When being removed to a place of safety, it is important that the assessment is made quickly and undue time limits are not in place, for example, if someone has to travel a long distance to access a service. At the point of detention, a decision would start with the removal of the individual, certainly in terms of Lord Crisp’s report for the Commission on Acute Adult Psychiatric Care. That gives examples of people having to travel up to 50 km to access a mental health bed. If that were done in the back of a police car or van, it could take a long time and add to that individual’s distress. Again, I want to get the Minister’s thinking; I do not think for one minute that she wants anyone to be detained for an unduly long time without assessment. We are probing to find out what the Government are thinking in terms of trying to put pressure on the services that provide assessments. Can we get intervention at an earlier stage?

Amendment 158 is linked to the previous amendment and is another probing amendment. I welcome the reduction from 72 to 24 hours, showing again that the Government want to improve the situation. This probing amendment would further reduce the time from 24 to 12 hours. I would like to understand the Government’s rationale for agreeing to 24 hours. Under existing and proposed legislation, if someone is clearly incapable of assessment, that period can be extended. The Royal College of Psychiatrists has a target of three hours for someone to be assessed. I accept that there are difficulties: for example, if someone is intoxicated or has some other issue, with drugs or anything else, an assessment may not be possible for a long time, but I think that 24 hours is too long.

I have tabled these amendments to assist the Minister to press her Health colleagues to push the boundary. I accept what the hon. Member for Kingston and Surbiton said about some excellent local provision. We do need a uniform service, but it would be completely wrong for individuals to be detained longer than necessary. I would not, for one minute, suggest that any healthcare professional, police officer or the Government, for that matter, want to detain people. Early diagnosis and assessment are in the interest of the individual and help to ensure an efficient use of time.

Let me deal with new clauses 11 and 12. I may push new clause 11 to a vote because it is important. One fear I have is that we have before us a Home Office Bill which deals with the problem faced by police forces up and down the country of people being detained under the Mental Health Act. The right aim of the Home Secretary is to ensure that no one is detained in a police cell. Certainly, her target for young people is welcome and she clearly wants to get to a position whereby no adult is detained in a police cell either. The problem I have with that is that we may achieve the target in terms of the police—a police authority or a police and crime commissioner may be able to stand up and say, “We have nobody in police cells who has been detained under the Mental Health Act”, but unless we have some indication of what has actually happened to those individuals, it could mask a problem. It could move away from the clear spotlight that has been put on this, certainly in terms of young people being detained in police cells.

If the answer to the written question that we ask every year is that nobody is being detained in police cells, that is good, but if people are languishing in the community without support, or are unable to access the treatment that they want, that would let the Department of Health—again, not the Home Office—off the hook in terms of its responsibility to those individuals. It is important that we have reliable statistics, because we need to see where there are pressures, which there certainly are. Having talked to my local police force, I know that forces throughout the country are dealing with a lot of mental illness problems that they are not qualified to deal with. The system has failed when people with such problems turn up in police cells, so we need to address that.

I feel passionately about new clause 12, because, very strangely, the only people who are not allowed advocates under the Mental Health Act are people who are sectioned under section 135 or 136. I am not sure why that was agreed when that Act passed through this place. It may have been to do with cost, and I understand that if we offer everyone who is sectioned an advocate, costs will be incurred, but we are talking about ensuring that people with mental illness are given the right approach and support. If someone is arrested for any other crime, they should have an advocate to speak on their behalf. Many people think that those with mental illness will have family members or others to help them, but there are clearly individuals who do not, so there is no one there to speak on their behalf. There are also individuals who go into crisis whose family members have never experienced anyone with mental illness and so will not know the right questions to ask or the rights of the individual.

The need for an advocate is particularly relevant to the issue I mentioned earlier: the home becoming a place of safety. Is someone really going to object to their home becoming the “place of safety” if they have no one to advocate for them or understand their position? I do not think they would. The default position would be that the easiest option is to stay at home, even though it might not be the best option for some individuals, so advocacy is very important.

As I said on Second Reading, sections 135 and 136 are unique powers that are, quite rightly, not used lightly. They are used to protect either the individual themselves or the people who might be in danger from their actions, but that still leads to people’s liberties being taken away from them. If the default position in this country is that someone who is arrested for a crime is entitled to legal representation, it is not too much to ask in this day and age that people who are detained—we are not talking about a massive number of cases—should at least, within a permitted period, be allowed an advocate to speak on their behalf and advise them. Properly done, that may well save time and money by ensuring that the individual takes the advice they are offered and by allowing the system—the police and health services—to ensure that that person is directed to the help they require.

[The Chair]

As I understand it, the hon. Gentleman has expressed his intention to press new clause 11 to a Division.

[Mr Kevan Jones]

New clauses 11 and 12.

[The Chair]

It might be helpful to the Committee if I point out that although both new clauses can be debated at this point, any Divisions will come later when we deal with new clauses.

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[Karen Bradley]

I know that it will seem odd to the shadow Minister for a Home Office Minister to refuse further powers, but I will at this stage. I will return to that point later.

I will deal first with whether a health-based place of safety is the most suitable place of safety in every case, which goes to the nub of amendment 157. As the hon. Member for North Durham knows, a private home can already be used as a place of safety for a person detained under section 136 of the 1983 Act if the occupier consents. Clause 60 will make it possible to use a private home as a place of safety after a section 135 warrant has been used to enter those premises.

Where consideration is given to using a private home, it should be because it is the most appropriate place of safety for meeting that person’s needs, and not due to a lack of better health-based alternatives. In determining which place of safety to take a person to, those involved will need to consider all the relevant circumstances in the round. However, if the person concerned is particularly frail or likely to be very distressed if away from familiar surroundings, removing them from a home setting may be judged to be, on balance, more harmful than helpful. Conducting the mental health assessment in the home may therefore prove both quicker and a more satisfactory experience for all concerned. Similarly, it may be preferable to take a young person to their family home, rather than detaining them in a strange place where they know no one.

There is no question of a person being taken to a private residence or forced to remain there against their will. The use of a private dwelling as a place of safety will require the active consent of both the person detained and the occupiers of the residence.

The shadow Minister talked of street triage. When I have met street triage teams across the country and seen mental health clinicians working with law enforcement, the best cases have been where the law enforcement officer has allowed the mental health professional to take responsibility for the necessary decisions. I have seen examples of the mental health professional, rather than the police officer, going into the place where the individual in crisis is, assessing them and determining whether they should be arrested or detained, whether at their own home, at somebody else’s home or in a health-based place of safety.

Anybody who has been in a police custody suite—I hasten to add that it was not as an inmate, in my case—will know that it is stark and brightly lit, with no shade and nowhere to hide. It is a horrible environment for somebody who is ill to find themselves in. Going to a health-based place of safety is a much better option, but it may be that some people can be treated better and get the appropriate care in their own home. I assure the hon. Gentleman that we are not saying that there is no need for health-based places of safety—absolutely not. We are determined that health-based places of safety will be available as they are needed, but for some people it is better to be treated in their own home. In the majority of cases I genuinely believe that the health-based place of safety is the best place, but for a small number that will not be the case.

The Bill is designed to increase the flexibility that police and medical professionals have to act in the best interests of the person concerned in a wide range of circumstances, while ensuring that appropriate safeguards remain in place to prevent abuses of such a system.

Amendment 159 seeks to provide that the period of detention would commence when a decision to detain was made, rather than on the person’s arrival at a place of safety. As the hon. Member for North Durham will know, sections 135 and 136 enable someone to be removed to a place of safety if that is required. Once they arrive at the place of safety, it is essential that the mental health professionals have sufficient time to conduct the assessment and arrange any further care and treatment that are required. Any individual in such a circumstance must have the opportunity to have a thorough assessment that is not driven by detention deadlines.

Amendment 159 would unfairly penalise both the people in need of care and the health professionals assessing them if the decision to remove them was taken in an isolated place and if getting them to a place of safety would take some time. I know from my constituency that in isolated rural constituencies, things just take more time. As it happens, one also cannot give birth in Staffordshire Moorlands because there is no maternity facility. If one goes into labour, it will take at least half an hour to reach a maternity hospital. That is the reality of isolated rural communities.

Similarly, what about situations in which removal is difficult and risky for all concerned—for example, when someone is threatening to jump off a bridge? An attending police officer would probably make the decision to detain very soon after arriving on the scene, but it might take time to get the individual off the bridge. Would it be reasonable to require the police officer, in that highly pressured situation, to think about the clock ticking towards a time when they would have to release the person, whether or not they had managed to get them to a suitable place for a mental health assessment?

I do not think that that is what the hon. Gentleman intends with his amendment. I think he intends to ensure that the person is transported to a place of safety as quickly as is reasonable. That can be addressed through guidance and the performance management of ambulance response times, rather than through legislation. Front-line professionals need to make the right decisions, taking account of the circumstances and the individual’s best interests.

Amendment 158 seeks to reduce further the permitted period of detention. As far as I can see, there is no disagreement among members of the Committee that the current period of up to 72 hours is much too long. It was put in place to take into account bank holidays, weekends and so on, but that is not good enough. We cannot have a situation in which, because someone has a mental health crisis on the Friday night of a bank holiday weekend, they find themselves in a police cell for 72 hours. That is simply unacceptable. It cannot be right to hold someone who is suffering a crisis and is in urgent need of a mental health assessment against their will for up to three days anywhere, not just in a police cell.

Clause 61 deals with that issue by introducing the concept of a permitted period of detention, and setting that period at 24 hours. We have also allowed for an extension by a further 12 hours if—and only if—the person’s clinical condition merits it. This is not a target time. Just as they are now, we expect that the vast majority of cases will be resolved much more quickly. The Royal College of Psychiatrists has recommended, as a matter of good practice, that the assessment should start within three hours of the person being detained, and that has been built into the Mental Health Act code of practice. I want to be clear that 24 hours is not a target. We do not expect that a mental health assessment will start at 23 hours. We want it to start as soon as is reasonably practical, to ensure that the person gets the assessment and treatment that they need as soon as it is required.

We have been told by stakeholders that there will be occasions when the clinical condition of the person is such that they simply cannot be assessed immediately—for example, because they are intoxicated through drugs or alcohol. We have listened to that advice, and the maximum permitted period of detention has been set at 24 hours so that time is built in for the effects of intoxication to wear off. Otherwise, we would risk creating a situation in which the assessment process was made difficult or impossible because the person was unable to participate fully.

Equally, a shorter maximum detention period would risk the person having to be released before they had been assessed because they were not yet clinically fit to participate. Clearly, that would be in no one’s best interests. For those reasons, we have set the permitted period of detention at 24 hours. In the Government’s view, that provides a good balance between keeping periods of detention as short as reasonably possible and making sure that the assessment can be carried out in the most effective way.

The provision for an extension of not more than 12 hours over and above the original 24 hours, is for the very rare cases where the clinician responsible for carrying out the assessment is satisfied that the person’s clinical condition is such that the assessment cannot be started or completed within the 24-hour period. I want to be clear here: the provision to extend beyond 24 hours will be based solely on the person’s clinical condition. There is no scope for it to be used in any other circumstance, such as staffing problems.

In practice, the average period of detention is now less than 11 hours. That time includes the person being detained, the assessment being made and any future care or treatment arrangements arising out of that assessment being put in place. In the majority of cases, the necessary processes are already completed well within 24 hours. Of course, we recognise that the reduction to 24 hours may represent more of a challenge in some areas than others, but the work that is going on across England to improve mental health crisis care services, backed by both the national crisis care concordat and the 94 local concordat groups, is helping to develop services that can respond to the changing needs of the areas they serve.

I hope that I have reassured the hon. Member for North Durham that the 24-hour time limit is not some arbitrary figure that has been chosen for convenience, but a deliberate decision that seeks to establish the balance between compulsion and care that I mentioned earlier.

New clause 11 seeks to introduce an annual reporting requirement in respect of detention in places of safety. The Government agree that the police should be transparent about the use of their powers under the Mental Health Act, so that we can see how often these sensitive powers are used, who they are used for and what further actions are taken. That will enable the changes being made through the Bill to be monitored effectively. It is only through looking at the data that we are in the position we are in. When my right hon. Friend the Policing Minister had responsibility for this area, he was determined to get to the bottom of what was and was not working well, and to make the decisions and changes that were needed to get to things working well across the country.

The Health and Social Care Information Centre and the National Police Chiefs Council publish annual data on detentions under sections 135 and 136 of the 1983 Act. For section 135, data are provided by health services covering the volume of detentions in which people are taken to a health-based place of safety. For section 136, the data include the numbers of people taken to police custody and health-based places of safety and are provided by the police and health services respectively.

However, we know that police data in this area have varied in quality. As a result, the Home Office is working with forces across England and Wales on a new data collection system for section 135 and 136 detentions to raise the level of consistency across the country. The new data set is voluntary in 2015-16, but will become a mandatory part of the Home Office’s annual data requirement for all forces in England and Wales from April this year—this month.

The annual data requirement will capture not only the number of detentions, but the age, ethnicity and gender of the people detained; the place of safety used, including, where applicable, the reason for using police custody; and the method of transportation and, where a police vehicle is used, the reason why. We intend to publish the data annually to ensure that there is full transparency, so I hope the hon. Member for North Durham will not need to ask written questions at that point.

[Mr Kevan Jones]

I welcome what the Minister has said, as it goes to the core of what new clause 11 aims to achieve. In what format will those data be published? Will there be a consistent approach, as she suggests, so that areas can be compared? That is the other important point to consider as this legislation progresses: we must ensure that it is working, that people do not end up in police cells and that we have comparable data from different areas.

[Karen Bradley]

The hon. Gentleman is absolutely right. If we do not have comparable data, we cannot compare. My right hon. Friend the Policing Minister, who set this work in train, was adamant that we needed comparable, appropriate data, which would be available online, so that we could make a fair comparison.

It is a fair suggestion that the length of time for which people are detained should be recorded, but there are practical difficulties. It would be incredibly difficult for the police to keep such information, because, quite frankly, we do not want police officers to be part of the process once somebody has been detained under section 135 or 136 of the Mental Health Act, apart from in the very rare cases where a police station is used.

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I apologise to the Committee for the length at which I have responded to these points, but I think it is incredibly important that what the Government are trying to achieve is well understood and that we all share the aims of the Bill. I commend new clause 28 to the Committee.

[Mr Kevan Jones]

As I said, my amendments are probing amendments. I thank the Minister for the full way in which she has responded to them. I know, and I want to put it on the record, that she, too, has a genuine interest in this subject and wants to do the best for individuals who suffer mental health problems.

I welcome the Minister’s response to new clause 11. The data are going to be very important, because they will attest to whether the changes are working. By comparing areas with one another, local scrutiny will allow areas to improve their situations and to learn from best practice. As she said in response to an intervention, what happens in one area can be transferred to another.

I hear what the Minister says about new clause 12. I accept her point that this situation is very different from being sectioned under section 2 of the Mental Health Act, but for people to be detained without any right to advocacy is unique. Like her, I do not want to overburden or inhibit the system, but there needs to be a basic right for individuals to have access to information. Given her commitment to further discussions on new clause 12, I shall not press it to a vote, but we may come back to it on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 60 ordered to stand part of the Bill.

Clause 61 ordered to stand part of the Bill.

Clause 62

Application of maritime enforcement powers: general

Amendment made: 214, in clause 62, page 71, line 29, at end insert—

“( ) a National Crime Agency officer having the powers and privileges of a constable in England and Wales under the Crime and Courts Act 2013, or”.—(Karen Bradley.)

This amendment makes express provision for National Crime Agency officers to come within the definition of law enforcement officer that applies for the purposes of Chapter 4 of Part 4.

Clause 62, as amended, ordered to stand part of the Bill.

Clauses 63 to 76 ordered to stand part of the Bill.

Clause 77

Firearms Act 1968: meaning of “firearm” etc.

[Lyn Brown (West Ham) (Lab)]

I beg to move amendment 227, in clause 77, page 81, line 7, leave out subsection (5).

This amendment would remove the exception for airsoft guns from the definition of a lethal barrelled weapon.

It is a pleasure to serve under your chairmanship, Mr Howarth. I, too, hope that you had a really happy holiday—I am learning from the Minister how to do these things.

The amendment would remove the exemption for airsoft guns from the definition of a lethal barrelled weapon from the Bill. It has been tabled as a probing amendment to understand why the Government have allowed an exemption in this case.