A couple of blog ideas occured to me this week and fortunately, they overlap!
I spent Wednesday morning in Stoke-on-Trent speaking at the Police Federation custody seminar – check out the Twitter hashtag #NCFseminar for more. Twitter followers who were not able to be there asked if I would write up my half-hour presentation into a blog, given that they were unable to attend. As half of my presentation touched on custody issues around handling of “criminal suspects who are mentally ill”, I thought that a very complex story I also heard this week would best exemplify the input.
Whenever I do presentations on policing and mental health issues, I always split it into two parts, and mould each part to the particular audience.
- Police responses to mental health emergencies
- Criminal suspects who are mentally ill
So, with custody sergeants and custody inspectors in the audience, it was obvious we need to talk about “the police station as a place of safety” and “the custody sergeant’s decision around the ‘diversion‘ of offenders” (whatever that means).
PLACE OF SAFETY
I outlined the journey that West Midlands Police undertook between 2005 when I first started a serious attempt ot understand how we get to a position of having health-based places of safety in every area. I explained the West Midlands process:
- Arrest – under s136 MHA
- Ambulance – called every time
- Assess – the clinical needs of the patient
- RED FLAGS to A&E
- No RED FLAGS to the psychiatric place of safety – it is for them to determine how much alcohol or resistance is too much, not the police.
- Police station as a last resort – if you can’t improvise around it. << Yes, improvising solutions is legal as long as it is assessed carefully.
The major learning points around this were:
- Custody officers need to think about para 10.22 of the Mental Health Act Code of Practice and would benefit from reading all of Chapter 10 and 11 of the document,
- It is worth, for legal and clinical reasons, enquiring of arresting officers who have removed people to the cells under s136 to explain their decision-making against para 10.22
- Consider para 9.5 and Annex E to Code C of PACE against the decision to detain in the cells – it may end up being that as soon as ‘detention authorised’, it’s off to hospital, transferred under PACE.
Finally, I covered a couple of issues around improvising around the location used as a place of safety: recalling the story of the officer in the south of England who had detained a 13yr old girl who appeared mentally ill. Having been declined access to the NHS facility on the grounds of her age alone, the officer was faced with taking her to cell block. Before doing so, he ran her home where he found a concerned mother, a clean and safe environment and somewhere infinitely better than a cell block full of criminals for a 13yr old girl with a history of self-harm. So he explained to the girl’s mother she could either get the kettle on and accept a cop in her house for a few hours; OR he’d have to remove the girl to custody. Guess what she did? What would any responsible parent do?
Was this in the policy? No. Was it legal, was it better than custody?! Definitely. The FME and the AMHP came to the house a few hours later and assessed her and referred her needs to the appropriate NHS team, having decided that admission was not necessary.
CRIMINAL SUSPECTS WHO ARE MENTALLY ILL
I was told today of a most complex case. A young man with a distinctive appearance arising from his particular learning disability, who had also suffered a brain injury following an accident in his early teens. He was alleged to have committed a serious offence involving a weapon, in circumstances where it could be argued he posed a serious risk. Police inquiries led to concerns that this incident against a stranger was not the first offence, but the others committed towards family or carers, they have never been reported to the police. There were serious problems during the investigation because of particular legal difficulties around identification procedures. And because of a significantly reduced IQ and communication capacity the suspect was prevented from providing meanginful consent to – or capacitous refusal of – things within crime investigations which are required by law.
The police balancing risk (to the public from further offending) against the need to ensure access to any necessary assessment, treatment or care; it represented potentially the most complex challenge to criminal justice and mental health professionals I have ever known.
At the Police Federation conference, I outlined that there were several things custody officers could do, right now and tomorrow, within the law, without the need for policies, protocols or procedures, which would significantly improve police management of ‘diversion‘ and prosecution decisions, including where arrests occur in complex cases like the above. And it quite simply rotates around the custody sergeant’s use of police BAIL under the Police and Criminal Evidence Act 1984.
Previously, I have written that in police custody the factor of whether someone with a mental health problem is ‘sectionable’ under the Mental Health Act 1983 is the single influencing variable which determines whether someone is diverted from the criminal justice system to the health system.
- If you are ‘sectionable’, you’ll probably find no further action taken for the offence
- If you are NOT ‘sectionable’, your mental health problem will probably be of no particular relevance to the decision made.
We need to be more sophisticated than this. Also – what are we diverting people to and will it work? Most people diverted from police custody under the Mental Health Act are detained under s2 MHA for assessment of a mental disorder. As this admission provision leads to a range of outcomes, why are we taking very premature decisions about the criminal offence before we know the assessment conclusion. One of several things could happen after admission under s2:
- Conclusion of serious mental disorder “of a nature and degree” requiring detention for treatment under s3 MHA.
- Conclusion of less serious mental disorder which can lead to referral to a community mental health team or a General Practitioner.
- Conclusion that there is no mental disorder whatsoever.
So what happens if it’s option 2 or 3 and the original offence which led to ‘diversion‘ (whatever that means) was not entirely trivial?!
Why don’t we just make it a matter of routine that all people diverted to hospital are bailed under s37(2) of PACE and the Investigating Officer reqruired to liaise with the Responsible Clinician for the patient to find out the conclusion? They can then either cancel police bail if it becomes clear that prosecution cannot occur – whether for evidential or public interest reasons – OR, they can allow the patient who has since been released to answer bail and an appropriate criminal justice decision be reached.
With a limited few patients who have committed a serious offence before arrest and where allowing diversion (whatever that means) into a non-secure or low-secure psychiatric unit would be potentially inappropriate, it remains open to argue to the Crown Prosecution Service that charged be brought in order to allow Part III of the Mental Health Act to take its majestic course – a course which could lead to the granting of a hospital order or restricted hospital order under the Mental Health Act. These orders better balance the right to treatment and care with issues around public protection.
Back to the young man with a learning disability. The custody officer would be key to decisions if this man were arrested. Whilst profoundly disabled, there is also a public interest factor arising form the risk he posed. Notwithstanding our legal system requiring CPS authorisation to charge someone and medical decision-making to detain someone under the Mental Health Act, the custody officer retains a key constitutional responsibilty:
The custody sergeant has the authority to deny immediate ability to the Mental Health professionals to remove someone from custody under the Mental Health Act because of their legal decision under the Police and Criminal Evidence Act that there is sufficient evidence to charge and that it is in the public interest to do so. These are legal decisions reserved to the custody officer under s37 PACE and as it is about the administration of our criminal law, it would trump an AMHP’s civil decision under s13 MHA to apply for admission.
So we now know, that the custody sergeant is a KEY constitutional position. Not only charged with ensuring safety, dignity and wellbeing for those in custody, but also for making nuanced decisions with regard to the most challenging decisions that would ever be required of any police officer. Often, these people can be found making them, whilst the shift are dragging in yet more drunks, yet more domestic violence offenders into busy, noisy custody offices, lacking in natural light and air.
It is difficult work that I’m proud to say I have done and that is why, notwithstanding my current rank, I remember everytime I step into a custody block that I’m not in charge there.
The custody block belongs to the custody sergeant – that is all.
The Mental Health Cop blog
– won 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
– 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.