Safe Spaces Scoping Report

3. The Legal Place of Safety

3.1. Introduction

The legal place of safety is defined in section 297 of the Mental Health (Care and Treatment) (Scotland) Act (2003) (the Act). This section, with section 298, of the Act empowers the police to remove a person in a public place to a place of safety if they reasonably believe that the person has a mental disorder, is in immediate need of care and treatment, and removal would be in their interests or necessary for the protection of other people.

3.2. Emergency Departments

The person can be detained in a ‘place of safety’ for up to 24 hours to allow a doctor to examine them and make any arrangements for their care and treatment. The Mental Health (Care and Treatment) Codes of Practice state that:

it is likely the preferred place of safety would not usually be an Emergency Department (ED). It could instead, where appropriate, be a specialised assessment unit closely linked to, or at least accessible to, a psychiatric facility.’

The Mental Health Codes of Practice define a legal place of safety as a hospital, registered care home or other suitable place where the occupier is willing to temporarily receive a person with a mental disorder. The Code of Practice is clear in stating that a police station should not be used, and this has been echoed in other findings and reports. The Codes of Practice which accompany the Act, provides for local agencies to identify designated places of safety in line with section 300 of the Act. However, the code recommends that these are not EDs and goes on to recommend that any use of an ED as a designated place of safety should “be restricted to occasions where the person also has significant physical health problems related to, for example, self-harm or substance misuse”.

Despite the Codes of Practice clearly outlining that ED is often not the most appropriate setting for use as a legal place of safety monitoring information provided by MWC suggests that this is overwhelmingly the case.

Expanding the number and range of alternative safe spaces as a means of improving outcomes for individuals has the potential to promote appropriate and proportionate support for those experiencing mental health crisis and distress as well as reducing demand on frontline emergency workers within unscheduled care settings. The expansion could further assist in reducing stigma and barriers and support the ‘No Wrong Door’ Approach. It could do so by facilitating an early intervention and prevention approach, enhancing the mental health unscheduled care provision when people do not require care within an ED setting but do require some form of care or monitoring to ensure their immediate safety and wellbeing.

3.3. Custody Suites

Section 300 of the Act provides a clear definition of what could constitute a place of safety and emphasises that a police station should not be used unless no place of safety is immediately available. The accompanying Code of Practice[7] also states that on the rare occasion where a person is held in a police station instead of a place of safety, it would be expected that the person should only remain in the police station for as short a time as possible and for no longer than is necessary to make more suitable arrangements for their care and treatment. Where it is exceptionally required, custody suites can be used as a legal place of safety for children, young people and adults experiencing mental health crisis and distress.

It is important that a person is removed to a suitable place of safety as soon as possible and as circumstances permit because when an individual is taken into custody they are disorientated, isolated from support networks, and criminalised for their mental health.

The National Institute for Health and Care Excellence (NICE) published guidelines^[8] in 2017 covering assessing, diagnosing and managing mental health problems in adults who are in contact with the criminal justice system with the recommendation that staff receive training to de-escalate situations, minimising the use of restrictive interventions.

The Scottish Mental Health Law Review supported the MWC desire to see greater use of third sector supports as a diversion route and recognised this would need ‘significant investment’.

3.4. Analysis of the use of the Legal Place of Safety

There are several issues reported around the use of place of safety orders, these include the type of space used for legal places of safety, the appropriate and proportionate use of a legal place of safety, local agreements which facilitate collaborative working and the correct recording procedure when a legal place of safety is utilised.

The MWC Place of Safety Report^[9], published in 2018, looked in detail at the use of place of safety orders. This report observed a three-month period between 1 July 2017 and 30 September 2017 to consider the prevalence of individuals who then went on to be subject to detention under the Act. The report highlighted that 79% of individuals taken to a place of safety were not subject to the Act in the period of two months before and two months after conveyance.

More recent data from the MWC The Role of Police Officers in Mental Health Support Report, published in November 2023^[10], indicate that rates of conversion from all section 297 detentions to emergency or short-term detention is around 15%. This is approximately three times higher than the rate among those being repeatedly detained under section 297 which is at 5.34%. The report outlined that more than 90% people who are repeatedly detained using the place of safety power relate to suicidality and that a considerable proportion (approximately 35%) of people being repeatedly detained under section 297 having no care plan recorded.

As noted earlier in this paper, there are significant challenges around the amount of time police officers spend at EDs when conveying an individual to a place of safety. Unless there is an immediate threat to life or serious harm, it is vital that mental health triaging services are used to ensure that individuals receive the right care, quickly, and use of the legal place of safety is only when legally appropriate, proportionate, and necessary. The report recommended Police Scotland review its Mental Health and Place of Safety Standard Operating Procedure (SOP) to ensure patients are not being subjected to unnecessary detention when they are willing and able to be assessed on a voluntary basis.

To ensure use of the legal place of safety is appropriately utilised and the use of police resource is a necessary measure, it is essential for partners to work in collaboration. Police Scotland’s SOP advises that a joint risk assessment process should be conducted by Police and NHS staff at the place of safety. As outlined above, research suggests that not all use of section 297 is proportionate. To address this, incorporating collaborative decision making between partners prior to the conveyance taking place, for example through community triage, and having this detailed within all board local PEPs should drive improved patient experience and outcomes, reduce demand experienced by frontline services, and enhance the unscheduled care response. This should include the role and value of care planning to improve the patients’ outcomes when experiencing distress which, if properly embedded, could further promote collaborative working, reducing the use of disproportionate powers (see Care Planning at section 7.6. below).

A final issue identified is the variance in recording and issues with duplicate records following the use of the legal place of safety. This makes monitoring of the prevalence and frequency of use of section 297 place of safety for both ED and Police custody challenging. The MWC will continue to collaborate with Police Scotland to improve the completion of this section of the form.

The MWC’s Mental Health Act Monitoring Report^[11] for 2022-23 reported that there were 1,345 section 297 (place of safety) orders in over that period, which was a 7.2% increase compared to the one before. These orders related to 948 individuals. A higher proportion of place of safety orders was for males (53.1%) with the highest proportion of individuals detained aged 25–44 years. Of the individuals taken to a place of safety, 97.1% were taken to a hospital/health care facility and only 2.9% were taken to a police station, marking a decrease over the years, from as high as 18.1! in 2011-12 in the proportion of place of safety orders where the individual was taken to a police station. This reduction was welcomed in the report with a desire for more to be done to continue this trajectory.

In addition to this, the report noted that six individuals were detained under section 297 10 times or more and one individual was detained 21 times during the year. It also highlighted significant geographical variation in the use of place of safety powers suggesting variance in demand, professional thresholds, and varied use of legislation throughout Scotland.

The data available on the use of place of safety powers also suggests both a variance in risk appetite between police and health services, where following conveyance, the criteria for hospital admission is not met for detention under the Act, and that the lack of an alternative is driving conveyance to ED using section 297 powers unnecessarily. It also suggests a gap in follow-up support for people who do not require an immediate clinical response, highlighting the need for increased collaboration between partners to ensure that following an episode of distress, meaningful treatment/support is offered to respond to the individual’s needs.