There was a point as a young officer, when I got really frustrated by my inability to always do the right thing at work. In mental health terms, this could include working in a city where no place of safety (PoS) service existed at all and as a consequence I spent countless hours and days of my life that I will never get back, sitting in cell blocks and A&E departments, responsible for patients who should long since have become the responsibility of mental health services. It used to drive me up the wall, to be honest: why have a legal Code of Practice that states how s136 or a PoS should work, if we just ignore it? Who polices the implementation of these legal frameworks?! Whoever it was, it did not seem to be very effective.
Meanwhile in the real world, we were busy detaining people under the Mental Health Act, recovering AWOL patients and supporting NHS and MHA procedures. To be doing so in a context of imperfect options, meant I learned a very important in lesson police-work and life: decision-making is, sometimes, about selecting the least-worst option from a whole range of things you’d prefer not do.
Some real examples from policing and mental health:
- Would you rather release a murder suspect in a gravely psychotic condition into the street without any supporting care / structures OR wilfully detain them in your cells without any obvious legal authority to do so, risking all the civil, human rights and potential criminal liabilities this entails?
- Would you prefer to remove a patient under s136 MHA who is intoxicated, resistant and / or aggressive to an A&E department who have been known on occasion to patronise, complain or refuse to deal because they are “simply NOT a place of safety” OR would you prefer to take them to custody where the sergeant bemoans your decision because resistance or aggression might be, but probably isn’t, a risk factor for clinically significant issues which place the person at grave risk in the cells?
- Would you rather see a self-harming, non-responsive service user who has a history of hurting paramedics and police officers and is crisis whilst in possession of razor blades or knives struck to the arms with a metal pole knowing it could break their arm OR would you prefer to see them struck with 50,000 volts from a police taser – all in the decision-making of keeping people safe?
THROWING YOUR TEDDY FROM THE PRAM
It is fruitless to stamp your foot in frustration or throw your toys from the pram – even where the situation arises because of a short-coming somewhere else or a lack of insight by someone else. It really doesn’t matter whether an AMHP could do this or that; whether A&E are right or wrong; whether the custody sergeant is being too risk-averse – you are where you are. You have to take this decision and grab the nettle; not insist upon the hypothetical one you’d prefer to take because it’s not available to you.
Doesn’t take long to work it out, does it? – you take the least worst option. The most defendable thing in the circumstances, perhaps the morally correct thing. Or do you? To do so, philosophically speaking, is to act in the utilitarian tradition of moral philosophy, or to act consequentially. Consequentialism interests me greatly, but I’ll let you find out more about that for yourself.
Sometimes, you may take these decisions in the real world whilst fighting other battles – let me explain:
The first dilemma – this was a situation in my police force area some years ago and I’ve come across it several times. There was an inter-area dispute about a patient. He was resident in Area A, but had allegedly offended and been arrested in Area B. After the MHA assessment, the poor AMHP was left in one hell of a position which had a knock-on consequence for the police: the first recommending Doctor waved goodbye at 5pm intending to play no further part in searching for a high-demand bed within a Medium Secure Unit (MSU). The search would resume at 9am, apparently. The problem for the custody officer was the detention clock on the murder suspect ran out at 2am and there was, for various legal reasons, insufficient evidence to charge him with murder. What was he then expected to do?! The first bullet point, above, was his very real dilemma.
“Well, if there’s no bed, there’s no bed. That’s all we can say.” It actually isn’t! – the state has various legal duties here so we’ll have to talk to a court about people breaching them, if you really insist? Oddly enough, a bed was found whilst we were planning for ‘the least worst thing’.
The second dilemma – this one plays itself out again and again in the UK and has featured in various inquests into high-profile deaths in custody. It’s all very well there being a legal framework and various Royal College guidelines, Codes of Practice and this and that, but the officers deciding whether to take a detainee presenting in a challenging way will have to take their decision in the environment in which they work, not the one in which they would prefer to work. It’s all very well saying, “Violent or aggressive patients cannot be safely detained in a psychiatric place of safety” or an Accident & Emergency Department, but if they are presenting in that way because of underlying clinical conditions or if there are ongoing risks from any restraint being applied to prevent harm to self or others: what do you want the officers to do?
We know from the MS v UK case, that the courts have shown an interest in the police related conditions where psychiatric patients are detained. We need to absorb the learning from cases like this and weave it into our psyche about what ‘good’ looks like. And we need to do it together because if this situation presented itself again, I think I’d resort to the first solution and speak to the force solicitor.
The third dilemma – this gets to the heart of the police use of force on vulnerable people. It is beyond doubt we would rather not use force at all and would happily spend hours talking people into the safe resolution we would all prefer. But if time is not on your side as the attending officer and the alternative is to watch someone self-harm until they can self-harm no more or put police officers at risk of death or life-altering, career ending injury, we may have to take the decision to use force. If we had to take it against a background of knowing some potential short-coming in previous health or social care responses, it can only add to frustrations.
Would we rather ‘risk’ the use of police equipment which may well cause physical injury by breaking bones or causing bruising, or the use of a controversial weapon which some will say is linked to the death of people who may be suffering from underlying health conditions that are literally invisible and potentially unknowable to the officer whose job it may have become to use force?
THE HUMAN RIGHTS ACT
Many people don’t like the Human Rights Act. I actually do. I haven’t come across a so-called ‘stupid judgement’, which when read doesn’t make sense. << This doesn’t mean I agree with every judgement! I just don’t think it is anything like the caricature present by our media. I had to study it, extremely superficially, for my inspector’s exam and couldn’t find anything to dislike. I would also recommend you follow the UK Human Rights Blog, which is invaluable.
Two quite incidental pet facts of mine to point out, frequently misunderstood:
1. The European Convention on Human Rights was law in the UK before the Human Rights Act 1998. The HRA simply made challenges under the European Convention possible in the British Courts, although current appeals against the finding of British Courts can ultimately still go to Strasbourg.
2. The European Convention and the European Court of Human Rights is not the same thing as the European Union. Quite different. Leaving the EU, doesn’t get you out of the ECHR or vice versa, even if you think one or both of those things is a good idea.
Human Rights considerations are relevant to all three situations above. The right to life is covered by article 2 ECHR; the right not to suffer inhumane or degrading treatment is covered by article 3; the right to liberty, except in situations prescribed by law, is covered by article 5.
By virtue of these provisions, the above three situations represent a conflict. All three bullet points are a challenge to police officers as to which provision they would rather breach. So how do you decide?
If you want to read more about consequentialism and decision-making in ambiguous circumstances, I suggest you read the work of Dr Toby ORD and those towards whom his work points. He is a research fellow at the University of Oxford and apart from the fact that he is known for being the academic who intends to give over £1m of his salary to charity in the course of his career, Toby’s work on consequentialism and moral philosophy, as well as on decision-making in uncertain conditions, is nothing short of absolutely fascinating.
It is against this philosophical background and practical reality, that I argue we must learn how to reach for the least worst option, measured in terms of potential and actual consequences for the well-being of other human beings. The opposing philosophical position – deontology – just doesn’t cut it for me and can’t be easily applied to operational policing which is, by necessity, pragmatic. Notwithstanding that “we don’t know what we don’t know” in various mental health related situations, this doesn’t mean there isn’t a rationale, intuitive framework for assessing how to act in ambiguous circumstances.
But form your own view – this is simply mine.
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.
Government legislation website – www.legislation.gov.uk