Serendipitous Timing

Please bear with the typos on this post, which I will correct later this evening – done on a very fast train, in a hurry and I have a raging headache from trying to proof read at 135mph. I wanted to get it ‘out there’ so here it is, warts and all – they will be surgically removed in a few hours!

You may be aware that the Government has spent the last year or more reviewing various aspects of the Mental Health Act 1983 (MHA), mainly focussing upon sections 135 and 136 of the Act.  These are the legal powers that relate to emergency police intervention in public places and to warrants to enter private premises and remove patients in need of assessment to a place of safety.  The review is published today and you can read it in full, for yourself.

1. The full report

2. The executive summary

3. The easy read report.

This post intends to summarises the highlights for you, whilst reminding that this document, in itself, means little and nothing happens immediately.  It amounts recommendations for amendments to primary legislation, it would require an Act of Parliament for these things to take effect and we already know this will not be attempted until after the 2015 General Election.  We may see a Green Paper putting forward suggestions in the spring, but Royal Assent to any changes will not occur for at least a year and in theory, may not happen at all, depending on the political outcome in May.  Some of the findings within the review will feed into the parallel review of the Mental Health Act Code of Practice which will probably be revised in April 2015.

But first I want to divert our attention to something which may appear quite unrelated.


The CPS and the IPCC have announced that a police custody sergeant and two civilian detention officers will be charged with manslaughter and misconduct in public office following the death of Thomas ORCHARD in Exeter in October 2012.  Mr ORCHARD lived with schizophrenia and was arrested for an alleged offence under the Public Order Act 1986 before being restrainted and removed to a police station.  Although not detained under the MHA itself, it has been argued that he should have been given that this arrest followed a marked deterioration in his mental condition and it has already been publicy remarked by Mr ORCHARD’s family that the mental health trust were ‘on the verge’ of sectioning him.

Following arrest there was a protracted restraint related intervention and he was taken to police custody.  The facts of what followed will now be subject to a criminal trial so are not for comment here, but it can safely be queried why the prolonged restraint of a mentally ill man led to removal to police custody given everything we’ve known for decades about the dangers of restraint and how prolonged restraint of psychiatric patients should be treated as a medical emergency (according to experts who gave evidence into the death of Rocky BENNETT).

So as you read today’s document and contemplate the highlights, bear in mind that the National Institution for Health and Clinical Excellence, whose job it is to draw up guidelines for the NHS, are currently consulting upon updated standards for the “the short-term management of violent and physically threatening behaviour in mental health, health and community settings“.  These will potentially replace the 2005 standards already in operation.  I admit to still wondering how all of these things square up together, especially given the implications of existing multi-agency standards published by the Royal College of Psychiatrists on Section 136 MHA?  Police officers prosecuted (again) in the criminal courts in connection with the removal to police custody of resistant, frightened and vulnerable people allegedly failing to take account.

Perhaps I’ll learn details in the trial to come that helps me to understand?


The are four things to focus upon, although the document does contain much more, especially about issues which have been referred to the update of the MHA Code of Practice.

  • An end to the use of police cells as a place of safety for anyone under 18yrs of age.
  • Reduce the timescale for detention in a place of safety from 72hrs to 24hrs, with the possibility of extending this only in defined, exceptional circumstances.
  • No legislative change to police powers in private premises – and little concrete suggestion of what will be done instead despite admission of a real problem.
  • A definition of sorts, for what ‘exceptional circumstances’ mean when cells may be contemplated for use in the case of detained adults – see below.

There are many suggestions which have been highlighted in the legal review that have been made known to those at the Department of Health who are updating the Code of Practice to the Mental Health Act – this document is also under review with a view to a new Code by April 2015.


For me, I don’t wonder whether some of the things in here will be achievable – it’s fine banning children in police custody, who could disagree with that as an aspiration?  Reducing time limits from 24hrs to 72hrs – again, who could argue that is a worthy aspiration?  Why should someone people with mental health problems be able to be detained anywhere, but still including police custody, for longer than the police can detain a rapist? – it sends entirely the wrong message.  But we know that some delays in managing people under s136 arise from an inability to identify a bed into which a patient can be admitted.  This is like the 16yr old girl example in Devon last month, as the MS v UK [2012] case.  Assessment occured relatively quickly, but there was no bed.  Shortening the period within which one must be found when bed capacity is still so problematic that areas sometimes struggle in 72hrs, is only going to increase the number of times that custody sergeants or place of safety staff reach the legal time limit and then have to ask themselves, “Do I now shove this vulnerable person out into the street or do I illegally detain them?”  There would need to be alterations to how beds are commissioned – specifcally, on how many beds are commissioned – to re-build sufficient flexibility into a system and allow Place of Safety assessments to be expedited in this new timescale.

Something that is not mentioned in the review is the point at which someone becomes ‘sectioned’ – it was outside the original scope of the review which focussed on ss135/6.  The Devon case referred to earlier shows this beautifully — the young woman was arrested on Thursday evening and assessed under the MHA on Friday morning.  It wasn’t until Saturday afternoon that a bed was identified and she became ‘sectioned’ – more formally known as ‘liable to be detained’.  Somewhere between being assessed and the application to that bed being found, her detention became legally quite vague given that she was arrested to prevent a breach of the peace and three sets of Magistrates had come and gone who could have heard the matters into her alleged Breach.   Imagine she had been detained unders 136 MHA in a public place – under potentially new laws, she would not have been able to be held in police custody that evening, but the local area has no CAMHS PoS provision and in any event her assessment would need to have concluded by Friday night.  We know that it didn’t and we know why.  Nothing in those problems is addressed by reducing the timescale so we will need to hope that CCGs accept the implications of any new amendments to the MHA as a motivation to commission PoS provision in their area for every kind of child detained.


This dilemma will remain very real and we saw it writ large in a Staffordshire Inquest earlier this month.  A paramedic in attendance at an address who was dealing with an intoxicated man with mental health problems called for police intervention to help keep him safe.  The police sergeant took the view that the police had no powers to do what they were being asked to do and refused to attend.  Although she was cleared of any misconduct arising from that decision, there was an IPCC investigation after that man’s death for the decision not to attend.  I accept fully that this review document makes recommendations about this issue – I believe it was taken seriously as a problem area, not least because police officers are not the only people arguing that we lack the legal tools to keep people safe.  That said, we know that parts of the Mental Health Act are ignored in a variety of circumstances; the Code of Practice has been ignored on an almost industrial scale for years so I can’t help but form the view that recommendations may be unlikely to have an impact.

What we know about these issues is that police officers cannot lawfully keep people safe in all the circumstances that unfold in the real world.  We also know that thirty years of the MHA has shown local authorities do not staff their AMHP rotas in such a way as to mean that urgent MHA assessments can be set up in an hour or two.  We also know that AMHPs in some areas won’t accept referrals or requests from police officers directly – despite their being a legal duty on AMHPs to consider requests for assessments!  Given that history and the restrictions on services that we’re seeing, it still seems reasonable to suggest that we either need to change the way that other services can support the police or we need to see a change to legal powers.

I was always explicity clear: I agreed that extending police powers would be the regretable last step and if people could up with other ways to ensure that vulnerable people are consistently safeguarded, I’d be interested to learn what it is and would support it if it were realistic.  For me this review leaves this question hanging.


Within this review, consideration was given to what ‘exceptional circumstances’ means – this is the phrase used to try and determine when it may, on some occasions, be acceptable to use a police cell as a place of safety.  The review introduces a phrase to help define this: “Behaviour that is so extreme that it would prevent someone being safely managed in a health setting.”  You mean a bit like in the case of Thomas ORCHARD?  Or like Sean RIGG?  Or Michael POWELL?  Or James HERBERT?  Or Colin HOLT?  Or Leon BRIGGS? … do I need to go on?!

You’ll see the not very subtle point I’m trying to make here:  most of the major, high-profile deaths in police custody or following contact that have involved vulnerable people with mental health probelms have involved those individuals being resistant when detained, quite possibly because they’re frightened by what the police are suddenly trying to do to them.  In all of those cases, people were taken to custody and in some of those cases the very decision to do so, was the basis of criminally prosecuting the officers.  Even in other cases where we should be thankful someone did not die, protracted detention in custody waiting for psychiatric beds was argued to amount to a violation of Article 3 of the European Covention.  We know that two police forces are being corporately investigated for potential Health & Safety Act offences arising from these things.

We also know this:  the Police and Criminal Evidence Act 1984 demands that custody sergeants give regard to whether or not anyone brought before them under arrest, whether for alleged criminal offences or under any other law including the Mental Health Act, has any apparent medical needs.  Where they do, it is incumbent upon the custody officer to call an Approved Healthcare Professional to custody or to call an ambulance and transfer that person to hospital.  I worry that any legislative amendment or Code of Practice clarification of what ‘exceptional circumstances’ means in practice, would have the effect of creating an impression in the minds of many health professionals, that it absolutely is the role of the police to detain some of the most challenging, yet acutely vulnerable adults in custody – away from healthcare support – despite what we should have learned from the cases mentioned above.


So I can’t help but think that we would need to see the details of how these recommendations would be brought in, if they’re brought in at all.  There are some superficially attractive proposals in this document that few would argue with.  The review also leaves some outstanding issues that means it remain difficult for police officers to call upon the requisite support from mental health trusts and / or local authorities when handling mental health emergencies in private premises. We know that street triage is assisting in the management of some of these calls, but we also know it’s making little difference to others. Yet this review must be taken as a re-affirmation by our elected Government that the public, partners and politicians really, Really, REALLY don’t want police officers taking unilateral action in private premises. Whether or not AMHPs, Crisis Teams or anyone else will react differently to future requests for support, I don’t know. Current feedback from many AMHPs that they lack the resources even where they don’t lack the will. Either way, early in the New Year, I will be writing guidelines for officers on how to police these incidents that will have to involved ensuring that the police have given every opportunity to health and mental health services to provide responses to people that officers believe are at risk and to be accountable for their response to that request, according to law.

And what do we think every custody sergeant in the country will be thinking today, having learned yesterday that their colleague from the tragic case of Thomas ORCHARD’s is to be prosecuted for manslaughter and wilful neglect?!  (Sergeants – it’s para 9.5 and Annex H to Code C of PACE that you need to quote in the custody record – as well as your positive duty under the ECHR and the Health & Safety Act 1974 to protect the health of anyone detained and brought to your custody area.)

The Mental Health Cop blog

Badgewon the ConnectedCOPS ‘Top Cop’ Award for leveraging social media in policing.
won the Digital Media Award from the UK’s leading mental health charity, Mind
– won a World of Mentalists #TWIMAward for the best in mental health blogs

ccawards2013 was highlighted by the Independent Commission on Policing & Mental Health
– was referenced in the UK Parliamentary debate on Policing & Mental Health
was commended by the Home Affairs Select Committee of the UK Parliament.

Tough Decisions Ahead Road Sign

Confusion, Conflation and Contradiction

For an issue that is increasingly on the radar, the debate we’re enjoying about policing, mental health and criminal justice is all too often void of certain important details.  I suppose it’s easy for me to say this – I get to do this stuff all day, every day and phrases have long since been thrown in my direction like ‘lives and breathes’ or even ‘totally obsessed.’ Fair enough, I suppose!

We see confusion in many areas, especially on anything connected to the ‘Place of Safety’ concept. I’ve said this before, but let’s take time to remind everyone:


A “place of safety” is a legal construct for those of us who are detained by the police under the Mental Health Act. It is nothing whatsoever to do with anything if someone is arrested for a criminal offence or detained under any other law – and it is nothing whatsoever to do any with anyone who is not detained at all. So whilst hospitals, police stations and so on may well be “a place of safety” there is no point having a conversation to that effect unless you’re referring to or dealing with someone is who is detained by the police under ss135/6 of the Mental Health Act.

We saw last year how confusing this can be: Panorama set out to show how dreadful it was that vulnerable people in Southampton were being detained in police custody by Hampshire Police when a place of safety should be available, only to demonstrate this point by showing a lot of individuals who had been arrested after allegations of offences. Even some of the officers in the programme bemoaned the fact that they had to take people to custody instead of being able to access health services yet the law says that the people featured absolutely should be in the cells. That’s what the Police and Criminal Evidence Act demands in this situation. The programme was saying, “Look at the police, acting just as the law says they should whilst being confused about it.”

We saw this again last week after a piece in the local media about a man in Norfolk who had been arrested for a Public Order Act offence. Questions had been raised about his mental health in police custody and after assessment he was in need of admission to hospital under the MHA – a lack of bed provision meant there was a wait before a hospital application could be made and the bed involved was 175 miles away, in Brighton. The piece starts with the normal narrative and then bridges a link to place of safety statistics by referencing the recent incident where a 16yr old girl was held in custody for two days in Devon. Of course, place of safety statistics are irrelevant here, except as general indicator of a related, yet totally distinct problem.


Then we have the issue of when someone is ‘sectioned’ – the Norfolk article just cited made this error, when it talked about someone being ‘sectioned’ when there was no bed.  I’ve argued before that police officers misunderstanding when someone becomes ‘sectioned’ has caused more problems and illegal detentions that we realise and it appeared to happen in the Devon incident, also.  To talk of someone being ‘sectioned’ is to use informal, non-legal language. In practice, it usually means that someone has been made subject to an application by an Approved Mental Health Professional for admission to hospital under the Mental Health Act. It will usually relate to section 2 or section 3 of the MHA, but it can relate to s4 as well.  The informality of this term ‘sectioned’ is seen by the fact that occasionally, it is used by others to mean other things: I’ve heard of police use of section 136 be referred to in this way and mental health professionals often object because that is something only ‘they’ can do.  The reality is, it is informal language that could mean any number of things.

But there is something really important about this term when used in its common context: the point at which someone becomes ‘sectioned’ is that point at which they may be detained against their will be others. It is initially the AMHP making the application who gives effect to the condition of ‘legal custody’ that follows the application to a hospital.  They may then detain and convey that patient under s6 of the Act to hospital and may authorise others to detain and convey on their behalf.  But until that AMHP makes that application to hospital no detention framework exists under the MHA.  So where someone is arrested for a criminal offence or to prevent a Breach of the Peace, they remain subject to the legal imperatives that follow from arrests until such time as an AMHP makes a full, complete written application to a hospital.  Where the AMHP has medical recommendations from a Doctor on which to base an application, but they have not yet made it because they don’t know which hospital has an available bed, the person concerned is not (yet) ‘sectioned’ under the MHA.  If the person were already in police custody, they remain subject to the Police and Criminal Evidence Act 1984 or to the Common Law implications of detaining people who were occasioning a breach of the peace.

As we saw in Devon: arrested on Thursday evening, application made on Saturday afternoon or evening.  The time in custody must firstly be justified without reference to the Mental Health Act.  There is a potential that any police force who has done such a thing, may be able to rely upon s139 of the Mental Health Act to protect them from liability, but such circumstances have yet to be tested against this argument so we’re not fully sure!  Ordinarily, someone arrested to prevent a Breach of the Peace would be placed before the first available Magistrate and three sets of Magistrates are normally available between Thursday night and Saturday morning.  As we saw in Norfolk: a man was arrested for a Public Order Act one day and detained for over 24hrs until eventually an application was made.  Again, s139 may protect a Chief Constable from liability arising from this, but that doesn’t render the actions legal.


We’ve seen in recent years a range of stated cases which demonstrate that police officers really, Really, REALLY do not have powers in private premises to manage mental health related incidents.  We saw that the practice of arresting to prevent a Breach of the Peace and then detaining someone under s136 when outside the premises was unlawful in the Seal case; we saw in the Sessay case that relying upon the Mental Capacity Act in non-life threatening circumstances is not possible; and finally, the Hicks case has demanded that any arrest to prevent a Breach of the Peace must be made with an intention to place the person before a Magistrate.  It is therefore possible to listen to people describing scenarios and, with reference to these cases, rule out coercive action unless the person is also alleged to have committed some kind of criminal offence, as in the Webley case.

So one night earlier this year, the police received a phone call from the ambulance service.  A paramedic was in someone’s private home, that person was believed to have long-standing mental health problems and they were intoxicated.  No-one was committing an offence, nothing seemed to indicate life-threatening risks and the police were asked to detain the man ‘for his own safety’.  Under what law?  I’m not really sure any framework of detention could be invoked by the police.  On this occasion, the control room sergeant formed this very same view and said so.  Whatever needed to happen, it wasn’t something the police could do on their own terms, so no officers were despatched.  Two days later, after the man was found dead in his flat, an IPCC inquiry was launched into the decision-making of the sergeant in the control room.  I can’t say whether or not the paramedics’ decision making was investigated on the same footing, but the Coroner’s Inquest found problems in how the NHS communicates roles and responsibilities.  The sergeant was cleared of any misconduct, but what a way to have to spend 2014 – under investigation following the death of a vulnerable person because you (rightly!) asserted that you had no powers to act and did so knowing that another professional was in just as good a position as any police officer to ensure safeguarding.

This is the contradiction we see, that won’t be corrected anytime soon:  the law states the police do not have all the powers in all of the circumstances to coercively safeguard people at risk.  Some of those powers belong to others.  When the police have historically tried to get around the rules, they have been taken to the civil courts and lost.  When the police have tried to adhere to the legal frameworks laid down by Parliament, people look at them aghast for leaving people at risk and their decision-making is scrutinised with all the potential for gross misconduct hearings to follow.  We also we see contradiction in the way we look at our police service to manage the most challenging of vulnerable people, those who are resistant, aggressive or violent – whether in public or even within mental health units.


Police officers and forces need to understand how to navigate these waters: how do you police incidents responsibly where you need others to do things they’re not willing or able to do?  When the next 16yr old is in custody, do you release the person or keep them detained; when you feel you have to use s136 on someone to keep them safe and they respond with protracted resistance to detention – quite possibly because they are just absolutely terrified – do you take them to custody because the NHS haven’t commissioned services to manage their clinical needs or because it’s too difficult to manage them through existing services?

How do you write-up your notes, your incident log or your custody record in such a way as to ensure that if you do end up doing something for which you’re struggling to find clear legal grounds, you maximise the chance that those who look back in hindsight will find virtue and morality running through the decision-making and a clear absence of other options?

So this interface is about finding the least worst option amidst confusion, conflation and contradiction.


The Mental Health Cop blog

Badgewon the ConnectedCOPS ‘Top Cop’ Award for leveraging social media in policing.
won the Digital Media Award from the UK’s leading mental health charity, Mind
– won a World of Mentalists #TWIMAward for the best in mental health blogs

ccawards2013 was highlighted by the Independent Commission on Policing & Mental Health
– was referenced in the UK Parliamentary debate on Policing & Mental Health
was commended by the Home Affairs Select Committee of the UK Parliament.


Evaluating Ethics

When I read the narratives that unfolded during incidents-gone-wrong, I often find myself thinking “been there – done that – lucky enough that it didn’t go wrong for me.” But not always – I’ve also had an incident go badly wrong and I’ve been left wondering how the hell it was me that became responsible for having to weigh up a fairly blunt set of options to a complex situation that could have been prevented from occurring in the first place. I’ll properly tell that story only many years from now.


Meanwhile, I read about incidents like that of mental health nurse Francis DUFFY – the Independent Police Complaints Commission have undertaken an investigation into “allegations that officers failed to attend an address to detain him under the Mental Health Act” in February of this year.  Two days later Mr DUFFY was found dead in his own flat after further concerns were raised.  Of course, the punchline of this incident can be quickly reached: officers had no power whatsoever to detain him under the Mental Health Act because in was in his own house – and yet there was still a misconduct investigation into a control room sergeant’s decision-making, albeit she was cleared of any wrong-doing.

Paramedics had attended Mr DUFFY’s home address on the 4th February and were there for several hours attending to various concerns whilst he was heavily intoxicated. The attending paramedic formed a view that he needed to be detained for his own safety yet made no attempt to contact the mental health trust crisis team. She stated at the inquest into Mr DUFFY’s death that in nineteen years she had become accustomed to them saying they would not attend someone who was so heavily affected by alcohol. When I read of that remark, I admit to thinking, “Fair enough!”

I fully appreciate why such doubts would emerge, but I also know why it’s regrettable we don’t push as far as we can. I’ve seen for myself disengagement by mental health professionals and organisations from those of us who are intoxicated whilst vulnerable because of mental distress and it’s not unreasonable to assume that the reaction you’ve had the first hundred times you tried to get such support will be the reaction you get when you call again. But we all know that it can create the perception of indifference if efforts aren’t made to do the right thing. The paramedic called for the police and according to the report in local press made “a request to have him detained for his own safety.”

A disclaimer here – the article I’m responding to does not explicitly state whether Mr DUFFY was known to mental health services and / or in receipt of care from them. Reading between the lines of the Coroner’s recommendations, I am assuming he was otherwise his would not be a case that would need clarification about the crisis team’s role.


So here we go again – police officers have no powers in someone’s private home unless there is a criminal offence, a Breach of the Queen’s Peace or circumstances where the Mental Capacity Act could be applied to a literally life-threatening situation. Accepting completely that I cannot find anything else on this incident beyond the local media coverage which I’ve linked, above – that news piece reads in such a way as to mean it was always obvious there would be difficulty in an approach that saw the police as the solution to a problem. Whilst he was very intoxicated, that’s not illegal in your own home.

Mr DUFFY had rung the ambulance service threatening to kill himself. It was latest in a long series of 999 calls that had seen him prosecuted for an offence under the Telecommunications Act and he was awaiting an appearance at the local Magistrates’ Court. The paramedic found him intoxicated that day and a post-mortem blood test showed that he was over five times the legal limit for driving. Nothing in the article jumped out at me to suggest there was anything there the police could do that a paramedic couldn’t.

This case shows a particular problem that was further compounded by a decision not to contact the mental health crisis team. We know from the Sessay v SLAM and the Commissioner case in 2010 that in situations where detention under the Act is considered necessary in a private premises, the Mental Health Act offers ‘a full suite of options’ – the judge in Sessay made it clear that ‘there is no lacuna’ in the legislative framework.

So there – it must be true!?


What about the alcohol consumption? Well, if I had a pound for every time I’ve heard the line “you can’t assess someone under the Mental Health Act who is under the influence of alcohol”, I’d be stressing considerably less than I am about the bill to get my car through its MOT just prior to Christmas.

Chapter Four of the Code of Practice to the Mental Health Act is often cited in these discussions, but even the Code doesn’t preclude assessment in urgent circumstances. If someone were intoxicated whilst detained under section 136 MHA, then by all means let alcohol wear off if someone is safely and legally detained somewhere. But in this situation, Mr DUFFY was in his own home.

The question has been asked about whether such an amount of alcohol could affect his capacity to take his own decisions – and in principle, it could. Whether that could have been relevant would depend upon some particular specifics that aren’t covered in the article. However, we do know that even if the paramedic had been able to declare that Mr DUFFY lacked capacity to refuse medical treatment, it would have still required additional concerns to allow the police to act on her behalf by removing him ‘for his own safety’. You will remember that section 4B of the MCA requires that in order to deprive someone of their liberty it must be considered the least restrictive way of acting in someone’s best interests and “necessary to provide a life-sustaining intervention” or to do “a vital act to prevent a serious deterioration in their condition.” Whether or not these criteria were met, I cannot say and I make no judgement either way.

I can imagine it both ways ’round and I genuine wonder about the sense in which the paramedic thought Mr DUFFY’s safety was compromised – the word ‘safety’ as opposed to ‘health’ inclines me to think that there were no immediate thoughts about life-threatening risks to his physical health, if we even accept a dichotomy between the ‘mental’ and the ‘physical’.  Either way, we do know that if urgent assessment or detention under the Mental Health Act were required, then it would require an AMHP and Doctor to attend the premises. That would be accessed through the crisis team that the paramedic didn’t contact – whilst I can understand why she didn’t, it probably should have been something that was tried.

What we can safely say, taking the description of the incident at face value, is that the police were never going to be the solution in this incident because they don’t have relevant legal powers. This does show, however, the ongoing assumption that the police can coerce people and keep them safe in all the circumstances where we might want them to be able to do so.

Well, we can’t! – and that is actually just exactly how your Parliament wants it. It has always been my view that the law we have is adequate only for services that are not configured as our’s are – we either need to change our services or we need to change our laws. The latter is not going to happen anytime soon and that only leaves one option – which will need to be paid for!


The Mental Health Cop blog

Badgewon the ConnectedCOPS ‘Top Cop’ Award for leveraging social media in policing.
won the Digital Media Award from the UK’s leading mental health charity, Mind
– won a World of Mentalists #TWIMAward for the best in mental health blogs

ccawards2013 was highlighted by the Independent Commission on Policing & Mental Health
– was referenced in the UK Parliamentary debate on Policing & Mental Health
was commended by the Home Affairs Select Committee of the UK Parliament.