There are dozens of police officers around the UK being criminally investigated for offences such as manslaughter and misconduct in public office, arising from the detention and restraint of people with mental health problems. Many, but not all, of these cases involved the application of section 136 of the Mental Health Act. Other detentions, like those involving Thomas ORCHARD and Sean RIGG, were under the Public Order Act 1986 but were made in relation to people who were suffering from mental health problems. There are various dangers inherent in police restraint and these are not just the medical dangers to vulnerable people.
In the last two weeks alone, we have learned of 13 police officers and several police staff placed under investigation subsequent to the deaths of Leon BRIGGS and Terry SMITH. Add to those the officers involved in the cases of Seni LEWIS, Kinglsey BURRELL, Toni SPECK, James HERBERT and the numbers now reach into the dozens – all of these are primarily tragedies for the families involved who now deserve clear, unambiguous answers to how their loved ones died. But nor should we lose sight of the impact upon the officers and their families as investigations commence against a background of procedures that are not always helpful to the chances of safe outcomes.
PARITY OF ESTEEM
In just the same way that when having a heart attack, you’re still having a heart attack whether or not you’re under arrest and regardless of what you’re under arrest for, the same remains true of someone in a mental health crisis. The nature of your clinical need arising from that crisis exists regardless of whether a legal framework is wrapped around you and regardless of which legal framework was chosen by the officers involved. In fact, when police officers decide to detain you, the clinical risks to you as a person actually increase if restraint is involved. It’s one thing to be experiencing psychosis, convinced that the police officers may be intent on harming you; it’s quite another to be in a physical engagement with officers where you may start fighting for what you perceive to be your life.
Once you’re being restrained and resisting, your body is producing adrenalin and we’re off into very dangerous territory indeed.
Restricting myself only to criminal processes which have concluded, we could look at the cases of Michael POWELL and Colin HOLT: restraint related events where officers were investigated for manslaughter but subsequently stood trial for misconduct in public office. In each case officers were acquitted but a crucial aspect of the prosecution case, which undoubtedly would have contributed to the CPS decision that officers should be charged, was the extent to which the police sought medical support in these difficult cases. In one death in custody case, a Professional Standards investigator told me that if officers had taken reasonable steps to involve paramedics or had they removed someone to A&E whilst detained, the possibility of criminal charges being proffered would have reduced significantly. Of course, officers in the case of Michael POWELL and Colin HOLT were acquitted of the offence of misconduct. But it should be obvious that any investigation charged with examining a violent death in state custody will want to examine whether those involved in it acted lawfully and reasonably in making the detention; whether they did all they could to mitigate the impact of the detention and any restraint used; and whether they discharged their basic duty of care by not withholding or denying access to necessary medical services.
It is clear from more recent investigations that the IPCC examine these things with reference to whether the police engaged paramedics and / or removed people to Accident & Emergency services. Where officers have not done so, we see the commencement of criminal investigations into potential liability for manslaughter or for misconduct in public office. But let’s remember: if we had detained a drink-driver after he crashed his car suffering a serious head-injury and then removed him to police custody without reference to an ambulance or to A&E to treat his head injury, we would absolutely expect to see a manslaughter / misconduct investigation if officers had not thought about or deliberately ignored the apparent medical need and he then died.
We can also see the IPCC taking a different approach in cases like that of Rafal DELEZUCH who died in Leicester in 2012. Although detained under s136 MHA then subjected to the use of force and restrained, he was conveyed by police car directly to A&E and I can find no evidence of that IPCC investigation being conducted as a criminal inquiry despite his death.
Parity of esteem works both ways.
DISENGAGING FROM RESTRAINT
If we are to talk about a new approach to restraint events, we will have to start discussing the circumstances where we simply do not enter it in the first place or where we disengage from it once started, if it is obvious it may lead to the realisation of serious risks. I once reviewed a restraint incident where officers had attended a mental health unit at the request of staff who had been faced by a patient with a weapon. I could not help but wonder why, after restraint had led to the weapon being removed, that we had just then disengaged from any further restraint and contained the subsequent risks. That we should “contain not restrain” is a phrase I’ve used a lot in the last couple of years: is there scope for more of this?
We saw last weekend an example of where the police did exactly this: the M42 incident in Worcestershire. A man in mental health crisis, fully contained and risks minimised and the police negotiated their way out of it all. The thinking behind this, is that you cannot try restraining a man on the adverse side of a bridge because he may fall to his death, maybe taking a police officer down with him. The risks of detention and restraint are too serious in those circumstances.
Well why not apply that thinking to just some other situations where 136 is used in a street? After all, whether you fall to your death or are restrained to it, you are still dead and it is still a devastating outcome for all affected.
There will always be some situations where time is not on the side of officers to act – I can think of a recent s136 detention made by my team, where a man was intent on getting onto a railway line and if not detained, may well have ended up in front of a train. In that situation, risk of restraint was less than the risk from inaction and containment to prevent access to the railway line was not possible. In some other incidents I can recall, immediate police action to prevent an assault was needed. However, in a circumstances where time, space and number of officers permits, why not contain and negotiate patiently? It doesn’t have to necessarily last 27hrs, as it did on the M42.
HEALTH AND SAFETY IN CUSTODY
The test of any section 136 or custody process in any area is not whether it delivers outcomes which suit bureaucracies in either the NHS or police: it is whether or not adverse outcomes end up being judged as unpredicted and unpreventable tragedies that occurred despite the best efforts of all the professionals, or not. Remember what was said by the medical and restraint experts in the Inquiry following the death of Rocky BENNETT in Norfolk:
- Any patient who required physical restraint was by definition in a medical emergency – p52
- Wherever a mentally ill patient is detained there should be a fully equipped resuscitation trolley;
- There should also be people who were capable of giving drugs and using the equipment, including a defibrillator. – p55
- There should be a doctor in every place where mentally ill patients are detained, or if that is not possible foolproof arrangements should be in place twenty-four hours a day to ensure that a doctor will attend within twenty minutes – p55
Read those again and think about the medical implications of the police service picking up resistant, fearful patients and then think about the clinical care that would be provided in custody. We couldn’t deliver on any of this – not even nearly. Think about the physiological implications of restraint, especially where it may potentially continue for more than a few minutes.
We know that this advice is valid, because we know of cases where doctors were in a position to provide a rapid intervention to an acutely disturbed patient in A&E, something which prevented the need for ongoing restraint and allowed a far more thorough consideration of the medical causes without patients actively fighting the police. We also know about the NICE Guidelines on Acutely Disturbed Behaviour which is relevant for both A&E departments and inpatient mental health units.
So if you’re a frontline police officer, learn some of this stuff so you can comprehend the risks and make the argument with paramedics and doctors. Don’t be shy to point out these inquiries and guidelines, many NHS staff have not heard of them and may need prompting or reminding. And if you are a more senior officer charged with developing s136 processes, remember the test that will be applied after an adverse event, is not whether the police did what they NHS wanted them to do, but whether the police acted lawfully. The assessment of this will be set against a background of human rights as well as health and safety law.
It is about far, far more than whether the process was superficially consistent with the wording of the Mental Health Act.
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