This post should not be needed at all. You’ve read it all before. Frankly, I’ve said it so many times before, that what you’re about to read, is partly cut and pasted from other blogs – but here we go, again. 😦
You will have read over the last week of a new independent investigation by the IPCC into a death in police custody after detention under s136 of the Mental Health Act – another horrific story of human tragedy and loss. This investigation may take years to conclude as those commenced in 2011 are still ongoing and in several of these cases the officers are being criminally investigated. I don’t know any more about this most recent case than that which is in the media already, but that means I do know a person detained under s136 MHA was resistant upon detention, was restrained and taken in a police vehicle to police custody. I can therefore very easily see why a death following this procedure is being investigated as it is.
Nothing that follows in this post is further comment on the recent case, but general issues that we see again and again following these awful events. Officers may or may not have done this or tried to do this – I don’t know. That’s what the IPCC need to determine, along with a cause of death.
Let us be clear about this, yet again — another death in police custody or following contact could happen tomorrow in any area where the procedure followed by the police is not built to mitigate against unlikely but highly significant risks. Some police forces work in areas where their MH trusts work very closely in developing proper procedures, other police forces don’t. But the duty of care owed by every officer and by every police force, is the same irrespective of where in the country they are.
The law is the law.
There are dozens of articles on this blog about all different aspects of this statutory provision for the police to detain people and I would encourage you to read them and build knowledge. It is my strictly personal view that almost all areas of our country, the s136 processes we still have in place “stack the risk deck” in favour of untoward outcomes and in deliberate disregard of various laws, statutory guidelines and nationally agreed partnership and clinical guidelines and standards.
Quite simply: it is not taken seriously enough and too many crucial people lack knowledge.
HOW TO DO IT PROPERLY
This advice applies to all detentions made by the police under mental health law, not just section 136 —
- Call an ambulance to EVERY detention under the MHA – without fail
- Remove anyone suffering from a potential medical emergency or physical injury to A&E
- Remove other detainees to the psychiatric place of safety in your area – it is not the role of police officers to pre-judge issues around admission to a place of safety where drugs, alcohol or resistant behaviour is involved. That is for the NHS to decide.
- Only when all three have been done and any other (improvised) alternatives have been rejected, consider removing to a police station. It is a PoS of last resort, after all.
You do not need advance permission to ring an ambulance for someone you think is ill and in urgent need — chapter 11 of the Code of Practice states you should do so and that is your answer if anyone wants to rebuke you for doing it —– the ambulance service may not come as a result of their policy or the demand they face at that time. But that is then a matter for them. It is not for police officers to absorb the liability and risk that arises from Clinical Commissioning Groups not adequately commissioning emergency ambulance services for people who may well be very ill.
You do not need advance permission to remove someone to whom you now owe a duty of care to A&E or to an NHS Place of Safety in a Mental Health Unit — if you genuinely believe it to be necessary, perhaps on the advice of a paramedic, you are entitled and obliged to do so. Nowhere should have mental health nurses triaging patients over the phone to see if they are prepared to accept them. A&E may say, “we’re not a place of safety” or “violent or intoxicated patients should go to the cells”. But that is then a matter for them —– Accident & Emergency areas operate against various standards and guidelines and they know perfectly well, or they should, that some highly resistant and agitated behaviour arises from medical problems. It is not for police officers to absorb the liability and risk that arises from A&E or MH trust directives that we condemn people to police custody without adequate triage. (You may well need to remain in A&E to protect NHS staff, that is one of your obligations to keep them safe.)
You need to have an explanation ready for the custody sergeant about how you’ve applied para 10.22 to the Code of Practice to the MHA ahead of arriving in the cells, if that’s where you end up — custody sergeants need to remember about para 9.5 and Annex H to Code C of PACE when making their statutory decisions about whether people with clinical needs are detained in custody. Can those clinical needs be met in custody, bearing in mind we often don’t know what they are? If not, PACE says you transfer that person to hospital — it is not for the custody officer to absorb the liability and risk that arises from A&Es and NHS PoS services not being set up to deal with that reality. You improvise past that by ensuring sufficient officers in A&E or an NHS PoS to keep NHS staff safe. Not ideal if you’re a duty inspector with limited resources but better than a death in custody.
POLICY v LAW
In the background of local policies and procedures are over-arching legal frameworks like the Human Rights Act and health and safety legislation. Local policies need to comply with those frameworks and where they do not, you must ask yourself how you will survive legal scrutiny in the event of a tragedy — so if your local procedure is not where we would prefer it to be, you need to ask yourself now what you will do if it is you makes the next MHA detention on your team tomorrow?
Do you comply with the local procedure or do you adhere to the law, as your oath of office said you would?
I don’t even think that is a difficult question – ensuring the Convention Rights of people detained by the state is not optional and the health services are as much a part of the positive duty to ensure those Convention Rights as the Police service. But I’ll tell you something else which I’ve said for some while now which I know won’t go down well: street triage makes these events more likely, not less. If or when we get the scenario like those we’ve seen before and a MH nurse is standing over the shoulder of the officers providing professional advice, we’ll see more of the “violent, intoxicated detainees have to go to custody” stuff that we’ve seen previously.
That is my deepest fear.
Winner of the Mind Digital Media Award.