“The legal duty of care owed to people detained by the police exists, whether or not the infrastructure through which to discharge this duty exists or not.” I have said this countless times in meetings in order to convey that human rights obligations such as the right to life (article 2) the right to not to suffer inhumane and degrading treatment (article 3) and the right not to be deprived of one’s liberty except in accordance with law (article 5) are real. All public authorities have a positive duty to protect these rights in the way they conduct their business, including police forces and primary care trusts.
It should also go without saying that police officers cannot commit criminal offences such as malfeasance in public office (wilful neglect), false imprisonment or breaches of the Health & Safety Act. Nor can they be encouraged to do so. Chief Constables now need to be (personally!) mindful of Corporate Manslaughter legislation. If the Home Office, Coroners, HMIC and the IPCC have already repeatedly stated that officers need to be mindful, for example, of the impact of prolonged restraint, should officers not consider the necessity of it to be a medical emergency? Certainly the medical experts who gave evidence at the Inquiry into the death of Rocky BENNETT thought so following catastrophic restraint by NHS staff in a psychiatric hospital.
It is for this reason that police forces and police officers need to know PlanA and PlanB for the detention and handling of people with mental health problems. PlanA is achieved by organisations working together at high level to ensure proper ‘pathways’ exist to manage people with appropriate dignity, according to need. It means organisations recognising the potential to have to place a temporary package of security AND care around people with complex, potentially unknown needs. PlanB means knowing how to do your best, if PlanA can not be realised.
Section 136 of the Mental Health Act brings officers into contact with a wide variety of people – confused, dementia patients wandering in the street; individuals who are psychotic because of drug intoxication; those suffering from suicidal thoughts or paranoia; those who have actively self-harmed in one way or another. They need to be especially mindful of how to handle situations involving an ‘acute behavioural disturbance’, excited delirium or anything where prolonged restraint is perceived to be necessary. Of course, it also brings the police into contact with people who are not mentally ill at all, but may appear to suffering from mental disorder to a cop – I will blog separately about the diabetic’s life that was saved following arrest under s136.
Most people seem to agree that police stations are not an ideal place for those arrested under s136, but in 2008 the Independent Police Complaints Commission found that 65% of those detained were removed to the cells either because there was no alternative or because the facilities identified in their area declined to accept them. Most usually this was because the person was under the influence of drugs or alcohol; because they were violent or because they were children. (Yes – some mental health places of safety facilities will not accept anyone under 18.)
So – if police officers operate in an environment where the ambulance service has not been commissioned to respond to mental health crisis to assist with clinical decision-making, does this mean a cop can’t call for a paramedic’s assistance in an obvious healthcare situation; if A&E has declared that it is not a ‘Place of Safety’ under the MHA, does this mean that if the police are handling someone who may be suffering from a physical condition or whose psychiatric condition is also a genuine medical emergency, that they cannot remove people there and ask for help? Can a violent presentation in and of itself justify detention in a police cell when it may be a manifestation of a medical emergency that we haven’t ruled out? Clearly, three ‘NOs!’ on those counts. Of course, the NHS are at liberty to say no but that would be for them to justify.
We should remember – 17% of deaths in police custody involve people who are mentally ill; 5% of deaths in custody are s136 MHA.
Chief Constables and Duty Inspectors therefore need to have a PlanB – “If my NHS partners either have not, can not or will not ensure appropriate pathways for those arrested under s136 or if an individual healthcare professional blocks that pathway, how do I lead my officers in way which ensures that they can do everything that is reasonable to protect the medical integrity of those they have detained; and to protect themselves from accusations that they have broken the law?”
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Since this blog began, the law of England and Wales, including the Codes of Practice to the Mental Health Act 1983 have been updated, several times. Always check the date of publication, displayed below; and cross-reference to current legislation and guidance when using this material as a reference guide.