In difficult times, it is generally acknowledged that we need leadership. It is also generally acknowledged that if we keep doing the same thing over and over again expecting a different outcome, someone eventually will remind us of what Einstein’s once said. So we need leadership to do something different after a tragic fortnight where we have learned of the deaths of two people following detention by the police under section 136 of the Mental Health Act 1983 and removal to police cells following restraint.
And the most important leaders in the police service are our frontline leaders – sergeants. I look to all sergeants in the police service to think deeply about what they are capable of delivering, as the legal guardians of the safety, dignity and human rights of vulnerable people in the detention of our constables. Sergeants are just one step back from the difficulty and detail, able to take that broader view whilst not busy grappling, literally, with complex and challenging people.
Let me tell you why sergeants could make all the difference in the world, whilst the bureaucratic arguments between NHS commissioners and senior police officers continue about 136 pathways, or health care commissioning in police custody and offender health. And why support from duty inspectors to let them lead us, is vital.
When I joined the service, I swore an oath of office in front of a Justice of the Peace and my Chief Constable.
I do solemnly and sincerely declare and affirm that I will well and truly serve the Queen in the office of constable, with fairness, integrity, diligence and impartiality, upholding fundamental human rights and according equal respect to all people; and that I will, to the best of my power, cause the peace to be kept and preserved and prevent all offences against people and property; and that while I continue to hold the said office I will to the best of my skill and knowledge discharge all the duties thereof faithfully according to law.
Think about that — I will “uphold fundamental human rights”, the most fundamental of which is the right to life. It is a basic expectation of policing that when people come into contact with us, they don’t leave that contact having died or suffered injuries or maladies from which they will die. (Article 2, EHCR.)
I want to argue in this post, subsequent to two fatalities, that if custody sergeants were really honest with themselves about their ability to undertake health-based risk assessments under the Police and Criminal Evidence Act, they would probably admit to an element of hope, notwithstanding the guidelines of “Safer Detention”. (For non-police readers, Safer Detention is national guidance to custody about the expectation of safe operating standards.)
Some points about law in police custody – we, as police officers, are independently attested holders of public office. We are not employees who may always be directed. We know about the peculiarities of rank that I, as a duty inspector in the police, cannot direct a custody sergeant to act in a particular way or take a particular decision, despite seniority in rank. The sergeant must be satisfied that the decision is the correct one, for they alone remain accountable for it. Should I express a view that differs to that of the custody sergeant about a legal decision that is theirs to take, it must be passed above my head to a superintendent whose word is final. (There are just a few legal decisions which sit with me as a duty inspector, and those are mine to take and they bind the custody officer.)
Finaly caveat — what I’m about to suggest is not about custody sergeants “refusing” to do anything but it may involve not initially doing something because it could go profoundly wrong. If cops have tried and failed to secure timely access to paramedics, hosptials and / or places of safety in mental health units, then the custody office is and always has been a place of safety of last resort and it may be safer than nothing at all and horrible stories we have heard about patients locked in police vans. What follows is purely an argument that custody officers should exercise themselves, as we know they can, to ensure it never acts as a place of safety, except as a last resort.
Ever – not even once.
CLINICAL RISK ASSESSMENTS
So, let’s talk about the law of custody — the Police and Criminal Evidence Act 1984 and the statutory Codes of Practice which support it are the main points of reference, but regardless of all that, Health & Safety law and Human Rights law applies to the way in which duties under PACE are discharged. PACE has eight Codes of Practice, and it is Code C (2012) which relates to the treatment and detention of people in custody, regardless of what they are in custody for and it is quite clear about the responsibility of the custody officer —
“9.5 The custody officer must make sure a detainee receives appropriate clinical attention as soon as reasonably practicable if the person:
(a) appears to be suffering from physical illness; or
(b) is injured; or
(c) appears to be suffering from a mental disorder; or
(d) appears to need clinical attention.
9.5A This applies even if the detainee makes no request for clinical attention and whether or not they have already received clinical attention elsewhere. If the need for attention appears urgent, e.g. when indicated as in Annex H, the nearest available healthcare professional or an ambulance must be called immediately.”
And remember this — the police service do not have a statutory responsibility to deliver healthcare. That responsibility sits with the NHS, by law. The medical staff in police custody are there to give opinions to help custody sergeants make legal decisions. That the FME or a nurse occasionally administers medication to assist with healthcare is incidental to what they are there for, under current law. If someone needs medical care: that is for the services commissioned by the NHS according to the National Health Service Act 2006.
So ask yourself this — when a person detained for any reason at all, but especially where detained for purely health purposes under the Mental Health Act (section 136 or otherwise), to what extent are you confident that if you do not transfer the person to hospital, by ambulance otherwise, that they will remain safe in custody, sufficient to satisfy the requirements of health & safety law and that if they are in a highly agitated condition, that there is no underlying condition causing this. If you want a medical view on these issues, read the recent guest blog by Dr Jenny HOLMES who is both a police FME and a psychiatrist. You will note that Dr HOLMES outlines various clinical causes of agitated behaviour that could not be handled in police custody, even by a doctor or nurse. This accords with the discussion I had with A&E professionals when developing s136 pathways several years ago and which led to the RED FLAG criteria, as they became known.
So if someone with known medical problems is resistant upon arrest and this becomes prolonged and is unexplained, how can a sergeant in custody tell whether or not someone has suffered a head injury or a brain tumour – they aren’t all visibly indicated? How do we rule things out or in, using the skills from our first aid course – we can’t, can we?! So PACE says, “call the nearest healthcare professional or an ambulance.” Those professionals need to then have regard to the sort of things Dr HOLMES wrote about in her recent post. Paragraph 9.5A makes it clear that these processes must occur, whether or not someone has already received clinical attention (ie, from paramedics) and whether or not they ask for it (uncooperative whilst exhibiting resistant behaviour).
ADMISSIONS AND TRANSFERS TO CUSTODY
As gatekeepers to custody, custody sergeants are also responsible for an important decision under the Mental Health Act Code of Practice. Paragraph 10.39 demands that if someone detained under s136 MHA is to be transferred from one place of safety to another, it must be agreed by the receiving location that they are prepared to accept the person. Transfers should not occur unless that agreement exists. It is also incumbent upon custody sergeants to have regard to paragraph 10.22 to the Code of Practice – this requires active consideration of alternatives to police custody, before cells are used as a last resort. So whenever any attempt is made to use custody, the sergeant should ask, “What else have you tried and considered?” If there is no satisfactory explanation, detaining officers should be advised to do so —
- Why not the local 136 suite – is it actually a good reason or would a discussion with a duty sergeant influence things?
- Why not A&E – we know that A&E see a role for themselves in some cases?
- Why not an improvised solution – like taking someone to their home or a relative’s address?
- Why weren’t these tried and considered, ahead of asking for cell-space? There should be valid, documented reasons.
And if these issues are not properly handled and have inadequate explanation, it comes back to that role of the custody officer to act as a guardian against the casual disregard of statutory guidelines: remember what was said by the House of Lords about the MHA Code of Practice: “It is guidance with which you should comply unless you have cogent reasons for departure.” Remember too the case of MS v UK — not a death in custody case, but a degrading indignity upon the person of a vulnerable, agitated man. Unlawful, according to the European Court.
Remember other law, arising from the courts — we know that prolonged detention of highly agitated, floridly unwell patients can amount to inhumane and degrading treatment; we know about our fundamental duties not to restrict someone’s right to life. These are important legal decisions for custody sergeants to take and not something that the should be pushed into taking too casually, because it suits bureaucratic preferences in third-party organisations who are themselves acting in violation of Codes of Practice. Remember our health & safety laws: we have a legal duty to ensure that reasonable steps are taken to mitigate foreseeable risks to health and safety. So how foreseeable is it, that the health and safety of detainees will be at risk when people detained under the MHA, presenting in ways that medical people and coroners have previously suggested are “medical emergencies” will be at risk if held away from professional help and assessment? << That's not even a hard question is it?! — VERY!!
So WHY, would we have people in cells in such a condition where we’ll have a couple of first aid certificates, a defibrillator and maybe a doctor or nurse with an unspecific response time and no kit without having tried everything else? Remember, trying everything else may well make the difference between a judgement that actions by the police were criminally negligent or not. Remember, police officers have been criminally prosecuted for this sort of stuff and more colleagues are going through the same.
Let’s get this sorted by remembering our Oath of Office: if you properly think about these laws, it becomes hard to countenance the medical safety and wellbeing in custody of those who present in a highly agitated condition – if those individuals have arrived before a custody sergeant without having benefited from a paramedical triage and ambulatory transportation, why would we authorise detention without immediately then exercising or right and our duty under para 9.5 to Code C of PACE to call one and / or transfer someone to hospital?
Go on, tell me!
Duty inspectors have a role here too. I floated these ideas on Twitter as I prepared to write this blog. One sergeant came back and narrated a tale of untold pressure by the duty inspector to detain someone where these kinds of profound concerns existed. Here’s news from one inspector to another: s39(6) PACE applies to that situation and you simply lack the authority to direct the sergeant in that regard. It is their decision to take and we need these people to hold the line to ensure the legal rights and dignity of detainees and to protect our constables from accusations that they were neglectful. It’s your job to then take on the NHS structures which, for that patient at least, seem unable to deliver fundamental human rights.
Hold the line.
Winner of the Mind Digital Media Award.