I know we keep hearing about the unacceptability or undesirability of those of us living with mental distress being detained in cells. I’ve always agreed about this when we are discussing detention under the Mental Health Act. I still think is a bit medieval to contemplate a country that can’t ensure such matters are handled without the need for police custody and I’ve covered those reasons elsewhere on this BLOG.
I’ve always said that things change as soon as you are discussing individuals who are accused of offending. Offending means that it is no longer just the rights of the detained individual that need to be considered, but the rights of the victim (if there is one) and the broader public order that have to be balanced.
Once a person with any medical problem whatsoever is arrested or arrives in police custody, officers must give consideration to their medical needs. Some arrested suspects are taken straight to A&E before they go to the cells, others see a police nurse or doctor in custody. Some who make it to custody appear OK to start with and become unwell later, or more becomes known about their health and they are subsequently transferred to hospital from custody. So the assessment on arrest and the assessment once detained are crucial to understanding what appropriate action may look like. This is all under the banner of “fit to be detained” — is this person medically fit enough to be detained in police custody?
It gives rise to particular challenges when we look at mental health and that is what this post is all about – fitness to be detained when we know that someone is mentally unwell. In addition to considering the issues generally, I’m also going to focus on some of the problems when the offence is alleged against patients are detained under the MHA.
FIT TO BE DETAINED
A couple of general points and caveats first of all. In the political parlance we’ve seen in the last few years we often hear broad-brush generalisations like “It’s never acceptable to detain someone in a cell when they’re mentally ill.” We saw a little bit of that in BBC’s Panorama programme last year. When I read things like on Twitter I tend to reply, “What, never? What if that person has killed or raped someone?” This is not merely intended to be facetious – although we all know the well rehearsed debates about violence, crime and mental health, we can’t get beyond the fact that the police do, from time to time, have to arrest people for crimes of all kinds, committed whilst mentally unwell. In an incident my team dealt with in 2012 there was no way I was going to contemplate any other course of action – two people were dead and we quickly located the killer in a place where the Mental Health Act could not be applied by us anyway. Any suspect in such circumstances would be arrested for murder and taken to custody – despite it being immediately obvious that his mental health wasn’t the best. None of this means we wouldn’t also call an ambulance and consider any advice paramedics may give as to whether the suspect goes to A&E first.
Ultimately though, suspects for very serious crimes go to custody, whether or not they are mentally ill. This happened after many serious events in the last few years including the awful killing of Christina EDKINS in Birmingham. There are sound legal reasons for this, too – only when people are arrested for offences do the police get certain powers of entry, search and seizure to ensure that evidence is properly preserved for the courts. Only when people are arrested for criminal offences and detained in custody do the police get further powers of search and seizure that allow investigation to efficiently occur. For example, certain forensic samples from suspects cannot be taken unless a person is “in police detention” which is a legal term defined in PACE and it means arrested and having arrived at a police station; police inspectors cannot authorise the search of relevant premises under s18 PACE unless a person is arrested for an indictable offence. So there are very sound legal reasons for needing to detain suspects for offences and hold them in the cells. The question here, is how the decision is taken that it would be reasonable and as safe as possible to do so, in the particular context of mental ill-health?
Once in custody there, normal procedures ensure that suspects are seen by a police nurse and / or doctor and then subsequently by the NHS if a statutory Mental Health Act assessment is needed. It is the police nurse and doctor’s job to give us an assessment on anyone who is arrested as to whether the person is “fit to be detained”. Now, accepting that some psychiatric presentations amount to medical emergencies; accepting that some of us with mental health problems are going to be traumatised after involvement, alleged or otherwise, in a serious criminal incident and by the process of custody — accepting all of that, how do we decide who is OK in custody whilst important legal issues are attended to, including a Mental Health Act assessment, if need be? Some of the most floridly unwell people I’ve ever met, including those who are highly agitated, actively attempting to hurt themselves in custody, those who have engaged in efforts to drink from the toilet or smear themselves and their cells in human waste have been deemed “fit to be detained”. All because they were arrested in the street, there’s nowhere else that would “accept” them directly, so custody became the default position. So why are some legal categories of patients, quite obviously nowhere near as unwell as that, deemed “not fit to be detained”?
ARRESTED FROM INPATIENT CARE
From time to time, the police are asked to investigate offences alleged to have occured in psychiatric units, often allegations that inpatients have assaulted staff or other patients. This brings a special set of considerations in addition to the above and there is much myth and folklore about it. There are also very practical problems that mean we need to ensure the medical and nursing staff in hospitals are talking to or communicating with those in custody. On more than one occasion in my career, including recently, I’ve been to a mental health unit to find assaulted staff, including those with physical injuries that require A&E assessment and treatment. I’ve also sometimes found patients who are described by the medical and nursing staff who know them well as “fully understanding the nature and the quality of the act” they are alleged to have committed. I’ve never been part of arresting anyone in a hospital without asking the question, “Is there any medical reason, in your opinion, that would prevent his safe detention in custody for up to 24hrs?” I’ve also usually spoken as arrests take place about the potential for the FME to want to speak to staff who know the patient well and for the investigation to end at short notice and the patient to be returned to the original ward. This also allows staff to plan that they patient should return to another hospital or ward, if they think the original place is no long suitable.
So in one example a few years ago, a s3 patient was arrested from a medium secure unit after an allegation of GBH against a nurse (fractured jaw) and interviewed in custody. The FME spoke to the Consultant Psychiatrist as part of the “fit to detain” decision and after the patient was interviewed with an appropriate adult and solicitor, they were returned to the same medium secure unit. Some weeks later, after the evidence had been reviewed by CPS, they were charged with GBH contrary s18 of the Offences Against the Person Act 1861 and appeared in court. Having pleaded guilty, they were referred to the Crown Court on a subsequent date where a restricted hospital order was imposed. Back to the medium secure unit they went, but now subject to legal frameworks that would balance health and public protection. The patient also saw that there were consequences for seriously assaulting nursing staff.
Things don’t always go so smoothly, however – I have other examples in my service where the fact that the patient was a s3 patient was sufficient for the FME to say “Not fit to be detained”. What, at all?! With physical healthcare, it normally means that someone is in need to fairly rapid medical care in A&E, lest they suffer adverse consequences. We see people in custody with less-than-as-serious health problems all the time and as long as they are fully seen and assessed, then suitably monitored in accordance with the Doctor’s advice, those risks are tolerated as part of the overall picture. And in those cases I’ve seen where NHS staff say “No problem” to the prospect of a patient being briefly held in custody during investigation only to then find the police doctor say “Not fit to be detained”, it causes real problems. Dr Jenny HOLMES alluded to this in her recent blog on this site: faced with a consultant (forensic) psychiatrist, who has known and treated a patient for weeks or even months, and an FME who has seen them for half an hour or less and who may not know their history, why would we think the FME better placed to make a judgement on someone’s fitness?
More to the point, to what extent is it someone’s status as a s3 patient that is influencing this decision? Would that assessment by that FME be different if the person with an exactly similar psychiatric presentation if the person had been arrested in a street for assaulting a police officer and brought into custody? I sometimes doubt it would because of course the police do arrest suspects for alleged offences whilst very unwell and bring them into custody and then see assessments that someone is “fit to be detained” although perhaps “not fit to be interviewed” pending further information or even MHA assessment. We also know that being currently detained under the MHA is no automatic barrier to being interviewed by the police about an alleged offence: as long as the legally required safeguards are in place (solicitor, appropriate adult) then it can, in principle, occur. The question is whether it should and I accept that is a difficult decision – perhaps one better taken by someone who knows the patient and their history very well indeed?
LIAISON AS WELL AS DIVERSION
What I’m suggesting here is: we need greater understanding of the complexity of some people and some incidents. It isn’t legally or medically correct to say that just because someone is mentally unwell they can never, ever be detained in police custody. Nor is it correct to say that just because someone is mentally unwell, even profoundly so, that this automatically renders it immediately dangerous to continue their detention in custody – otherwise, why aren’t all seriously unwell patients transferred out ASAP, either to a mental health place of safety or a A&E department. And then, in those cases where it is correct to argue that someone’s mental health emergency does render them unsafe in custody, to where do we return or transfer them? I’m alive to the possibility in some cases, that the correct response to disorder in health settings, even some of the more serious stuff, is not to arrest, contain the situation there until someone can be transferred to a more appropriate unit. However, failure to fully investigate and appropriately prosecute those who hurt NHS staff and other vulnerable patients when there is no obvious medical barrier to this and the offence was serious enough to call the police, is something I still feel we have a LOAD of work to do on. I hope it is on the radar of liaison and diversion services to better oil the wheels between custody healthcare and inpatient mental health care.
Remember, 70% of all violence against NHS staff is within the mental health sector, as reported by NHS Protect. It is not an inconsequential issue and it deserves full discussion and appropriately sophisticated responses when it occurs. Get it right on “fit to detain” is an important part of that and we’re far too inconsistent about the clinical risks in custody to be confident that we are.
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