Exclusion criteria

“Exclusion criteria” is my term for those aspects of someone’s presentation which often mean a person detained under s135/6 of the Mental Health Act are denied access to a Place of Safety in a psychiatric setting with a presumption that it will be possible, legal and safe to detain them in police cells.  (Occasionally, a PoS is within a dedicated part of A&E, established for the purpose of MH assessment and I include them here.)

I have come across the following exclusion criteria:

  • Drugs
  • Alcohol
  • Aggression
  • Children
  • Learning disabilities.

If you examine samples of people detained the above would amount to some 40 – 60% of the total, depending on your sample – I’ve sampled it at least ten times.  The justifications for such exclusions are usually given, as follows:

  • Drugs / alcohol:  you cannot assess someone under the MHA when they are under the influence of substances.  Fine:  doesn’t mean it’s medically appropriate to have them in a police cell, though.  17% of deaths in custody involve drugs, alcohol and mental illness and 5% of deaths are people detained under s136.  Let’s think about what we’re doing before we exclude to the cells.
  • Aggression:  it is not safe to have violent patients in A&E or in a psychiatric unit and they should be in the cells until they calm down.  Again, I understand this.  But what if the person is so floridly psychotic as to need constant restraint to prevent head-banging or self-harm?  NICE guidelines for this cannot be applied in a cell block and the experts who gave evidence at the Rocky BENNETT Inquiry described the need for ongoing restraint as a medical emergency.
  • Children:  it has been said, that there are safeguarding issues to having children in an ‘adult’ setting and it is to be avoided.  This is not correct, if the PoS involved is a distinct facility within an MH ward.  What are the safeguarding risks if the only people that child will come into contact with are trained, vetted professionals and / or their own parents / families?
  • Learning disabilities:  I’ve heard it argued that where the police detain someone with a learning disability, that person should be excluded from the PoS and either taken to the cells or LD services should establish their own PoS facility.  How do the police tell whether someone has an LD or an MH problem?  What if they have co-mobidity?

As I bounced off these debates I was more or less breathless.  How can the answer to a notional, theoretical safeguarding risk to a child be to put them in a cell block where quite possibly some man will be under arrest for raping boys or possessing indecent images and where at any moment whilst the child is being moved around the cell block to the Doctors room, the toilets or showers the local response team might drag in a violent drunk or domestic violence offender who wants to fight the world?  <<< That’s a safeguarding issue.

How intoxicated is intoxicated?  Some areas use Breathalyzers to determine the answer; but some are zero tolerance – any alcohol at all and you can’t come in; others use the drink / drive limit, others use double the drink / drive limit.  Some don’t use Breathalyzers at all because the senior service psychiatrist has said, “It’s pretty disgusting if you think about it.  What is it actually telling you?!”

Three pints of beer in one person will render them quite intoxicated; with others it won’t touch the sides and whilst neither could drive a vehicle lawfully, one of them may well be able to hold a sufficiently cogent conversation with an AMHP to be assessed under s136.

Aggression is a really difficult one:  the police are always very keen to lock violent people in cells and keep people safe.  The problem comes whether that action is consistent with keeping the detainee safe.  The tragedies which have befallen individuals and their families include those which involve violence which is symptomatic of a medical emergency; or which requires ongoing restraint which causes further medical problems, perhaps because of underlying poor health or previous medical problems.

These are the reasons why protocols on s136 need to include sensible mitigation of medical risks before we condemn intoxicated and / or violent detainees to the cells; and it is why mainstream mental health services need to have proper pathways to their LD and CAMHS services, for those occasions where those services’ patients are detained and removed to a place of safety.

This means about six to eight organisations getting around the table to trash it out and it has happened in the real world and it works well with ongoing support across the organisational boundaries.

Winner of the President’s Medal,
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award


All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2012

I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current.  Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.

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25 thoughts on “Exclusion criteria

  1. I hope they get round the table very soon! The list of exclusion ‘reasons’ is something that MH staff use to deny access to treatment to those they just don’t like or just can’t be bothered with 😦 I sometimes suspect that they feel that they might catch something and use the police as their rubbish collectors so that then can tick ‘job done’ and go back to undisturbed games of Solitaire on the office computer

    1. Not really contributory and lends nothings to the debate. Also unhelpful stereo typing does nothing to foster robust and respectful interagency working. I think I can hear the clock going back…….

    2. as a psychiatric nurse i can say that at times this “rubbish collector” tag you have used is one we feel as well. I agree with the article above that there are very few exclusion criteria for section 136 however i would say that we can only detain under the mental health act if the doctor assessing is saying that they are too intoxicated then we cannot detain them. I would suggest that the safest place would be A&E becuase of the immediate access to doctors and life saving equipment

      1. It fairness, it is written down absolutely knowhere in British law that if a patient is intoxicated they can’t be detained in a place of safety. Have the debate by all means about where is more appropriate, but your comment indicates exclusion to A&E whereas they will say the opposite. It’s when our NHS can’t sort the over-functionalised nature of it’s provision that people fall between the gaps, end up in the cells and then some of them, meet serious untoward consequences as result.

        How intoxicated is too intoxicated – if someone has had two pints of alcohol, they are hardly “drunk” or “paralytic” so nothing prevents a psych PoS detaining them. Four pints: maybe it would depend upon the impact of that on the person – eight pints: again it might depend, but most people will be in a position where it could well be masking other health problems or be a cause of concern in it’s own right. As long as the police are able to evidence that this is person was reasonably believed to be suffering from a mental disorder, in immediate need of care or control, etc., etc. – then it’s still the job of the NHS to have a response: not only in terms of providing appropriate assessment as and when that can be done, but also in terms of providing a suitably safe environment in which people can reach that point.

        It’s over ten years since the Inquiry recommendations following the death of Rocky BENNETT pointed out that all psych units should have defibs, trolleys and staff who can use them – a lot have doctors there too. I’ll leave the debate with you and A&E: all I know, is bring anyone under s136 in an intoxicated condition near a police cell and any custody officer worth their salt will deploy laws to divert them back to where they belong: within the NHS.

  2. a deterioration of my mental health manifests itself as drunkenness. its not, its dissociation. There is also the risk of head injury as was the case recently where someone died for this reason.

  3. 1 Drugs and alcohol – police aren’t medics – shouldn’t be in a cell – should be supervised by health professionals
    2 Aggression – tricky – padded cell OR administer a sedative EVEN if the subject refuses (ECHR nightmare but makes sense to me for the greater good – go on then, shoot me now!)
    3 Children – definitely not in a cell for the reasons you gave
    4 Learning Disabilities (now this IS my field!) – Absolutely agree on co-morbidity but WHAT LD services??? Shouldn’t be in a cell but the trend seems to be that you guys have to deal with the lot! So maybe you could have a nice suite. Like a rape-suite or something. BUT why isn’t the Health Service (mental HEALTH) doing just that very thing?

    I’m glad I do my job. Reading your blog makes me even more sympathetic towards the plight of the police. You have to know the law and be mental health experts too! As well as being social workers and probably sweep the streets with the proverbial broom in an unmentionable area. Oh, wait. That’s the plan for 2013.

    1. Jen
      Drugs & Alcohol – both can make people disinhibited and mask symptoms of mental ill health and physical injury, both can also make manging people problematic, yes they should be supervised by Healthcare professionals, yes this can be in a PoS or Police Station or A&E subject to provision of the correct resources and the ability to move a person between the 3 if required.
      Aggression, not necessarily tricky and also not necessarily appropriate to resort to seclusion or sedation. Whilst it is absolutely true that Healthcare staff should not accept violence towards them we have to accept that there are differences in intent in cases where violence may have a clinical causation and clearly that may apply to an individual in the grip of a psychotic episode who thinks NHS staff are cannibals trying to eat him! For whom A&E is unlikely to be appropriate again PoS or police station with immediate access to healthcare.
      There is published guidance from NICE about managing violence in psychiatric settings and A&E Depts, although too many A&E Depts don’t comply. Its also worthy of note that there is secondary legislation that requires all NHS Trusts to have an Exec lead responsible for reducing violence at a strategic level & a day to day specialist in post to lead on reducing violence.
      Children & LD again dependent on circumstances A&E and police stations may be equally inappropriate for vastly different reasons.
      All this brings us back to Mentalhealthcop’s point. That a properly commissioned, equipped and resourced PoS can be the answer for all the individuals that some PoS operators currently exclude for spurious reasons.

  4. I have had personal experience of this! It’s horrible knowing that you are out of control and cannot help what’s happening, go to A + E for help and a “place of safety” to stop anything bad happening and when you kick off (because you are not well) self harm in the department (how is that allowed to happen?) the staff get you arrested for breach of the peace and you spend the night in a police cell feeling utterly lost, scared alone and still unwell. The sooner they sort this, the better for all concerned. Thanks for writing about it.

  5. I think there is a collective agreement that assessing someone under the Act when under the influence of alcohol is not ideal and that a person should be (relatively) sober. The problem starts with the subjectivity of sober. Using the breathalyzer as a yardstick is not a complete measure of someone’s capacity but it is one that the police use as a measure of their capacity to drive. Do we use subjective judgment if a person should be assessed, and run the risk of a causing further frustration to all involved due to inconsistent responses from services or to we use a measurable (breathalyzer) consistent approach?

    1. I need to nail that one on the head straight away: breathalyzers are most certianly NOT a method that the police use as an assessment of someone’s capacity to drive – it is something used to provide a loose indicator of breath alcohol volume. Someone’s capacity to drive may well be affected by alcohol and it usually is, but most cops have an anecdote to tell – I’ve got several – where a chance encounter with a motorist whose personal demeanour and driving caused no concern at all gave off an ambient sense of alcohol. In such cases I can think half a dozen drink-drivers who failed failed both screening tests and station (evidential) tests and were prosecuted despite no evidence that their driving actually had been affected. The offence of drink driving doest require evidence that driving was affected, only evidence of blood alcohol levels being above the prescribed limit.

      If the police feel that someone’s capacity to drive is impaired, they arrest them immediately under s4 RTA for being unfit through drink or drugs and without reference to screening devices; usually, it is only if there is doubt about about levels alcohol at the roadside will a test be done with a screening device – we then arrest them under s5 if they fail.

      Breathalyzers tell you NOTHING objective about alcohol in relation to someone’s capacity to be interviewed by anyone – either by the police or an AMHP or a DR because as you rightly suggest, effects of alcohol and perceptions of effects on alcohol are subjective. This is not (just) my view, I’ve heard expressed countless times by medical professionals, and AMHPs and psychiatrists.

      More important than all of that for the police, is that the screening device – if it is used – should not be an entry crtieria and it should never be assumed that failure of a screening test or a subjective assessment by a nurse means off to the cells it is. Apart from breaching the Code of Practice to take such an approach, it renders the perons without any clincial oversight until such time as they can be assessed. Exclusion to the cells because of alcohol or becaues someone has ‘failed’ a breathtest is also potentially dangerous because we KNOW that alcohol can mask other problems and this is reported annually in the IPCCs death in custody reports.

  6. Point taken but it was not meant as a rationale for taking people off to the cells to sober up which as you say would breach COP etc. It seems there is no easy answer on how mental health professionals make judgements (over the phone) about someone who is under the influence having capacity etc. But a ‘novel’ approach would be to actually see them and make some objective decisions. Seeing someone face to face and making a decision that assessment under the act is appropriate to conduct is both safer, easier to defend and hopefully will allow for better outcomes for all involved.

    1. Turns out we’re saying the same thing then: I think it’s perfectly possible to say this:

      1. Call ambulance every time – emergencies to A&E
      2. Remove EVERYONE else to the PoS – allows for that face to face decision-making you’re after. If brief period (>2hrs?) is needed to get someone sober enough to be assessed then use the PoS, bearing in mind if someone was paralytic, this would have removed to A&E first.
      3. When all else fails, or if it’s decided that someone needs to sober up but not in A&E environment under clinical supervision, then the cells are in play because know it’s safe.

      So as said: we agree! (Shame not all of your colleagues do!)

  7. the decision to assess someone who has been drinking alcohol and/or using drugs will of course be subjective but it boils down to the risks to them and others if left. The duty to assess in a suitable manner is not absolute its as suitable as you can practically possible. The idea of excluding someone from a PoS due to age or Learning Disability is to me nonsensical. Also i have never tried to assess based on a phone call. I trust other professionals judgement to the extent that if they think a assessment of their mental health is required then its your duty to respond and if you think afterwards it was a waste of everyone’s time tough better you waste some time then have a SUI on your hands. Remember the person been assessed is the only important person in this situation.

  8. This is an interesting article and what it demonstrates to me is that the pre-determined PoS is, in many cases, wholly inadequate in design.

    There seems to have developed a sliding scale where MH services in some places will only accept patients who have crossed a threshold of tolerable behaviour.

    Until that point, whether it be through drink, drugs or aggression, a hospital deems them to be someone else’s problem until such time as they are calm enough to be assessed.

    I can recount a tale, many years ago now, where a patient was so floridly psychotic that it took eight officers to detain him and he still managed to bend a set of quick-cuffs. He was a man mountain and having struggled to get him into a police van he began self harming.

    He was taken to A&E where we waited outside. He was still going banzai in the back of the van. Two psychiatric doctors happened to walk past the van and spoke to me.

    It was clear that they felt his behaviour was brought on by mental illness and they suggested we got EDT out – there and then – to assess him in the van and get him to an appropriate hospital.

    EDT refused to entertain the idea. They said the back of a van was “not conducive” to allowing a proper assessment and that it was the police job to protect them whilst assessing him in a place of safety. Either that or the cells.

    I pointed out that it was impractical and indeed impossible to protect them but they refused to work with what we had.

    Whilst the ideal setting for a mental health assessment will allow the team to speak calmly with a detainee there seems to be a reluctance on their part to work with anyone who is outside that bracket. Until they are calm enough to speak to properly they won’t speak to them. This means hours of time in police custody for someone who is ill.

    The most sensible way forward is for there to be combined provision. With many forces now moving towards centralised custody it makes sense that, in addition to regular police cells, that the following be added:

    1. One or two appropriately padded cells
    2. A doctor permanently based in custody
    3. A mental health professional based in the same unit permanently.

    Now there will be days when the the mental health professional may be sat around with little to do but at present EDT call the shots. They come out when (and in some cases if) they want to.

    A doctor could reasonably be used during most shifts for all kinds of other medical issues.

    This will cost money and lots of it.

    Similarly the PoS at hospitals needs to be better equipped for patients who meet these exclusion criteria.

    The fact is that detainees under the mental health act are patients not suspects. Their need is clinical and the police have neither the training, expertise or equipment to deal with them as they need to be treated.

    The violent patient in a police cell will be treated as a violent prisoner – forceably restrained but without medics being present or medicine being administered. No doctor, no defib for what is and remains a medical emergency.

    This is why people die. It is wrong and it is inhuman.

    There also seems to be massive reluctance on the part of mental health providers to move forward on this. The feeling is that it is better for them if things stay as they are. That way – it is someone else’s problem.

    That is a strategic issue and not the fault of front line practitioners.

    Something needs to change

  9. I have a friend who was in a programme for alcohol addiction and was told that mouthwash containing alcohol can give a positive breathalayzer result. Is this true? As someone who won’t go out without at least using mouthwash due to OCD and who has had contact with A&E for MH reasons, I worry. Sorry if this is silly question, I have learning disabilities and a below adult mental age. Thanks.

    1. It’s a perfectly sensible question regardless of any kind of age – I am aware that some MH services use breathalysers as a condition of entry to a Place of Safety service and apply a zero tolerance approach. I’m not a mouthwash expert but do know that some of them are alcohol based, but in very low quantities.

      The breathalyser measures breath alcohol from within your lungs so residual mouth alcohol should not register or only barely, and certainly not enough to compromise drink-drive type limits which was what more services use as yardstick. I’ve never heard of A&E using this kind of approach, so I would have thought you’d be fine.

      Does that help?

  10. “Cherry picking” is a term widely used in Canada, and I believe to be the same as your “Exclusion criteria”. It’s when medical professionals deny/refuse detained proposed patients accesss to treatment. Some arrive themselves, some brought in by family and some by police.

    “Aggression” What ever happened to using straight jackets and medication to control a person who is clearly out of control? This person does not need to be in jail, they need assessment and treatment if justified.

    I am a mental health advocate, I am not anti-psychiatry like some MH advocates. Citizens who need mental health help should get it, but capable citizens being treated as mentally ill need to be able to have the validity of their detention checked, so they are not being treated and detained unlawfully.

    Psychiatric professionals get trained and get paid to deal with psychotic people. If they exclude “aggresive” proposed patients, then I assume the patient they treat could be seen by a psychologist instead.

    In Scotland’s Mental Health Strategy 2012-2015, there is a commitment to audit who is being detained and treated in psychiatric settings. This should be done in every country!

  11. From a doctor’s point of view it is equally frustrating. Last week, an AMHP turned up and saw two 136’s but refused to see the third lady because she had had a drink. The lady concerned had drunk a bottle of wine the previous night, got drunk and tried to take an overdose. We were asked to see her the following afternoon. The AMP refused to see her unless she breathed zero on the intoximeter . At 4.15pm The custody Sgt. noted that maybe the time of day had something to do with it! Now I am facing an official complaint for arguing that the lady should be seen. As I write, there are three 136’s waiting to be seen for over 17 hours. No AMHP!

    1. Well said – the AMHP in this case should be reminded of the incident in Gloucester where pedantic refusal to assess until zero was blown on an intoximeter led to an alcoholic being forced into DTs and he died! … for heaven’s sake!!

  12. most of those exclusion criteria would not stand up where I work in a mental health ward with an attached 136 suite which is not fit for purpose but again that’s another story. there are only two exclusion criteria medically unfit to be detained ( please take to A&E then by all means bring back)however after a few incidents of this last year the police now almost always call an ambulance so this has thankfully largely become a thing of the past.

    The other is aggression. This one is a sticking point between nurses and police officers alike. What the police don’t understand is that we have a ward with 20 + patients to look after and a minimum safe staffing level of 6 that’s without anyone on 1.1 / high risks etc etc etc etc. We are only given one extra person for the 136 suite. We also have one seclusion room between two wards one being a picu and the 136 suite is not fit for that purpose,

    If the police bring in someone that is violent and aggressive, we do not have the option of medicating the service user as under 136 its not allowed.
    Even if this were possible we often don’t have the persons medical history therefore any medication we give them shouldn’t be given until they have received bloods, ECG etc etc and people brought in on a 136 are often angry / resistive to this.
    We often don’t have the option of seclusion to safely manage someone as it can be in use by either ward for very valid reasons.
    We are not allowed to use “mechanical restraints” ie handcuffs to reduce the risk of violence towards others.
    The only option left if face down prone restraint to safely manage the situation if we were to accept someone who was violent or aggressive. This again has massive risks because it takes 4 people away from the ward to safely manage the situation, leaving 2 /3 ( 2/3 as one member of staff may be on break out on leave with other service users) staff or less if we have already been short staffed or have a 1.1 needed during a shift. This is why some wards including myself have at times needed to make the difficult decision and tell police officers that I cant safely accommodate a someone who is violent and aggressive in our 136 suite. It isn’t always the case that this would be unsafe but sometimes the decision is made on the basis that the ward may have several very high risk patients already and simply would be to dangerous to have 4 staff elsewhere for any length of time.

    Just to give you an example from last year I started a shift with a full quota of 7 staff. But I was the only qualified nurse on duty.
    During the shift there were two assaults resulting in one patient and therefore 1 member of staff being in the seclusion suite.
    I had a service user who kept having medical emergencies and therefore needing my attention almost continuously ( HCAS are not allowed to be responsible for giving oxygen )throughout the shift and ended up on 1.1 nursing because as the only qualified so much else was happening that I could spent the time I needed to with this service user to ensure he was medically ok .
    I had a service user who was at high risk of being assaulted by others due to intrusiveness into others personal space due to a severe psychotic episode. During that shift she was placed on a 2.1 and nursed in the wards attached 136 suite because that’s the only place we could safely contain her at that time.
    That meant out of my seven staff I actually had 2 staff on the ward ( plus me trying to run between all of these different things and make sensible decisions, write peoples notes , get physical obs done, placate service users whos leave had been cancelled due to the chaos and ring 7 different agencies to ensure the next shift were not left in the same state, incident forms , medication, etc etc etc). We also had three patients at high risk of ligaturing and no way that the member of staff checking on these people could sensibly complete the 5 minute checks.

    Anyhow the police turned up with someone who was known to us highly aggressive when detained and unmedicated. And whilst I was sympathetic to their concerns that it is not good that someone is mentally unwell be detained in the police cells, I had to make it plain to them that I couldn’t safely manage the person in the 136 suite and the ward at that time but would try and get extra staffing for the following 3 shifts to ensure the ward could manage. Luckily on this occasion the police officer involved knows our service through a family member who works on the ward, and didn’t argue the case I never would have disclosed all of the above to the police officer and accepted my “because of current staffing level I cant safely manage this.” But on other similar occasions we have police officers argue and even had one threaten to arrest nursing staff for “detaining a police officer” when they had brought the person in and the nurse made it clear we couldn’t manage it for similar reasons to the above.

    I do know that most nurses ( where I work anyway ) unless really up against it wouldn’t refuse a patient brought in by the police as we all recognize that actually the cells arent the best place for our service users, often no crime has been committed and even if it has it is often in the context of mental illness.
    But I think that the problem is when 136 suites exist and staffing is expected to come for this from an already full and chaotic ward there are going to be tensions between nursing and police staff.

    Part of my trust have set up a 136 ward which appears to work better as they can have up to 4/5 136s in at a time and have the dedicated staffing for this whether the 136 is full or not, This has massively reduced the need for the use of police cells in that area. I’m hoping that this model gets recognized and becomes the standard of 136 suites across the country. The 136 patients in that part of the trust get taken to what is essentially a mini ward, with all the services afforded to that (showers , bed etc etc etc) particularly as someone can be held on a 136 for up to 72 hours. This is opposed to ours which is essentially a large cupboard with a toilet, no out door space, no shower , no drinks facility and only recently a bed as apposed to the mattress on the floor we had until recently!!

    1. Nobody disputes the challenges faced in running a mental health ward or the decisions that have to be traded off to make things work, but your response is tactical one – I’m making a more strategic argument. It’s for very senior health managers to ensure that you are not in that position and there has been over thirty years of them mostly failing to do so. We know it’s hard: public service is. Policing riots is hard; murder investigations are hard; finding half a police response team to sit around looking after people on s136 when there is no need for them to do so and where national guildelines say they shouldn’t is hard – the point being made in this blog is about it no longer being acceptable for health to just throw their hands up (at strategic level!) and say, “Oh, it’s all too hard so you’ll have to suck it up!”

      Since this post was written, your police service has shrunk by 20% and plans are a foot for a further 40% which way outstrips any cuts to mental health services (which were 8% at last reckoning after a decade where budgets increased in real terms by 59%!) if you cut something by 20% and then 40%, you cut it overall by more than half and I note that mental health cuts were largely the decision of health managers who exercised their right to make choices. It is no longer acceptable to put individual patients at risk in custody, in violation of statutory guidelines and, from time to time, human rights law, because NHS managers took decisions they didn’t need to take, strictly speaking. So I hope the errudite pushback you’ve given here is also something you’ve done to MH Trust and CCG managers whose understanding of these issues is all too often, woeful?

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