I freely admit that I had never heard of a ‘psychiatric FME’ (Force Medical Examiner) until a few months ago and it’s not a concept I’d ever heard of in any police force around the country. Of course, psychiatrists and other doctors with specific experience and qualifications in managing patients with mental health problems do come to police custody, usually when undertaking a statutory Mental Health Act assessment. Some of the doctors who work for the private contractors who currently provide police medical services are NHS psychiatrists for their ‘main’ employment and many more who work as FMEs are ‘section 12’ approved which means that whilst they may not necessarily be full-time psychiatrists, they have relevant experience and can make certain decisions under the Mental Health Act that your ‘ordinary’ doctor cannot make.
This post is about guidance: some of it contained on the Mind website and some of it from the Home Office. It is about the concept of a Psychiatric FME.
The Mind website states–
It is the second paragraph that links to Home Office guidance and which caused some conversation on twitter. I am also happy to acknowledge that I did not know of and had never heard of any Home Office advice that the police should be calling psychiatrists to act as an FME. So I asked the Mind Legal Unit who explained that they base this advice on two Home Office circulars from the 1990s. Number 66/1990 and 12/1995.
A DUTY OF CARE
The police operate alongside various things that I shall call ‘authorities’, which influence or determine whether and when, as well as how, their work is done. There are Acts of Parliament like the Mental Health Act 1983 and the Police and Criminal Evidence Act 1984 which you (more or less) must always comply with. I say ‘more or less’ because violating Acts of Parliament only matters if regulators take action againts those who violate it, police enforce any criminal offences or individuals take action in the civil courts to secure their own rights. There are statutory regulations which are issued by Secretaries of State which determine from time to time various things left to their authority; we also see Codes of Practice which are important statutory guidance but not, ultimately, legally binding on those professionals and organisations to whom they are directed. Look at Mr MUNJAZ in the 2005 case settled by the House of Lords: his seclusion whilst in hospital looked nothing like the vision of Chapter 15 of the (2008) Code of Practice to the Mental Health Act 1983, yet this was ruled to not be illegal.
Then we have non-statutory guidance and there are various kinds – HM Government departments like the Home Office issue guidance on a range of topics, as does the Department of Health. We also see national bodies issuing guidance: the College of Policing issue ‘Approved Professional Practice’ guidelines to police forces and the IPCC and HMIC refer to these when investigating serious complaints or inspecting police forces. NHS England issues guidance, for example on how finances and cross-trust charging will work when patients from Area A end up needing healthcare in Area B … and the list could do on. Obviously charities produce guidance of various kinds, relevant to their area: the Mind guidance that I’m referring to above is a easy-digest combination of the various authorities I’ve already mentioned so far and Rethink produce a similar police factsheet which is really good. But here’s the controversial bit: they are summarising into a consumable format a lot of complex, detailed legal information and this involves simplifying it considerably. One can imagine that lawyers at Mind envisaged distressed relatives reading it after their loved ones had been detained; or perhaps service users reading after being detained – people wanting quick, easy-read access to clear information. However, as with most stuff to do with detention in police custody, there are exceptions and qualifications to many things.
For example, the above screenshot states that the police must not interview people without an appropriate adult. This is normally the case and appropriate adults are a very important safeguard, but the police can and sometimes do interview people without appropriate adults being present, in what we call ‘urgent interviews’. This is where an interview cannot be delayed because to do so is to risk serious injury to others. It is far from black and white and there are many exceptions to various things but in fairness to Mind and what they’re trying to achieve, if they were to list all of those exceptions and qualifications, to fully and comprehensively explain the law, they risk their advice page becoming very long, quite unwieldy and barely usable bearing in mind its intentions. So claims are made on there that refer to statutory guidance like a Code of Practice when, ultimately, these things are not binding and this is also true of other, non-statutory guidance. College of Policing APP, it is ultimately a matter for each individual Chief Constables and they must decide whether any suggested national standard is relevant, feasible or cost-effective to them in their areas. Home Office circular 66/1990 also requires each police force to have a single lead for mental health and policy connected to mentally disordered offenders: some forces haven’t got those, either; but it doesn’t mean that everything that force does on mental health is illegal or outrageous. Far from it.
I need to be clear about what I’m not saying here: I am not suggesting that on these important issues, Chief Constables or NHS trusts can just disregard important stuff for their convenience or because they don’t like it. In the Munjaz case (2005), the hospital concerned put forward what they felt were very good reasons for breaching the Code of Practice to the MHA and the court accepted their argument. On non-statutory guidance from Government or professional bodies, we can think of these issues as highly desirable, aspirational standards and if we could all achieve this all of the time, great! I would celebrate if we could ensure that everyone arrested by the police who is thought to have a mental health problem could be seen by a psychiatrist and / or community psychiatric nurse.
Why wouldn’t I welcome that, given what I spend my life pushing for?!
HOME OFFICE CIRCULARS
- Para 4iv of Home Office Circular 66/1990 states — “In the case of mentally disordered persons, chief officers of police may find it helpful to arrange with their local health authorities for psychiatrists to fill the role of police surgeon.”
- Home Office Circular 12/1995 also states: “Chief Officers of Police are asked: (a) to develop arrangements for the examination by psychiatrists or other mental health professionals of detained persons, including cases under section 136 of the Mental Health Act 1983.”
So here’s the thing, conscious that I risk being accused of playing with words: psychiatrists acting as FME in the case of ‘mentally disordered persons’ may well be ‘helpful’, but it is very, very far from being a direction that it will always happen in every case. Bear in mind, that over 10% of all people arrested are flagged as potentially having some kind of mental health problem. When I researched this in West Midlands Police, absolutely ALL of them were then examined by a doctor. In half of those cases, the doctor did refer that person for a statutory Mental Health Act assessment which involved a psychiatrist or s12 doctor. Of those assessed under the Act, 80% were not admitted to hospital as an inpatient and 20% were admitted. Does it cause a major problem for individuals, the police or the health service that half of those originally flagged were not seen by an NHS psychiatrist? Not necessarily: as I have already stated, many FMEs are ‘section 12 approved’. Whilst they may be General Practitioners or other kinds of doctor by background, they are legally still specialists in handling patients or detainees who may have a mental health problem.
We also need to ask this: what are we asking that Doctor or nurse to do when they first meet the detainee? Against the background of whatever caused us to ask for a doctor to attend, we want them to confirm just three basic things: fitness to be detained in custody; fitness to be interviewed (where appropriate) and fitness to be charged with a criminal offence wherever drugs / alcohol are involved. Anything else that is required in terms of immediate health needs is a matter not for the FME service, but for the NHS who retain responsibility for providing healthcare even to people who are under arrest or detained at a police station. If the FME examination revealed concerns for someone’s health that needed immediate attention then they would be taken by police officers to A&E, by ambulance if necessary. Where statutory MHA assessment is required, they can call for it.
All detainees who enter police custody are asked about their medical welfare and there are tens of thousands of people a year who state they have mental health problems. Many of these are patients who are stable, under the care of their GP and whose contact with the criminal justice system will be relatively unaffected by their health and vice versa. As stated, ALL detainees are seen by a doctor where they make disclosure and as liaison and diversion services grow around the country, it is increasingly the case that assessments in custody will be influenced by the FME having discussion with a CPN and access to NHS medical records. For clarity, this does not mean that the police have access to medical records. The police are only told what they need to be told to make their statutory decisions and to ensure they keep detainees safe whilst detained and afterwards.
PARITY OF ESTEEM
Although it might sound flippant to ask this, what do we actually mean by ‘psychiatrist’? Do we mean a ‘consultant psychiatrist’ or would a psychiatric registrar suffice? Would a s12 qualification or MRCPsych qualification suffice – what if the person holding those was not working as a GP?! Some people who come into custody have all manner of medical issues ongoing – but they don’t all see specialists whilst under arrest. Some do, they are taken to hospital by the police who put the medical issues ahead of criminal justice matters, but with others, medical issues are managed in custody alongside the criminal justice process. Initial determination of these decisions is made by the Force Medical Examiner who can ensure that the police bring people into contact with specialists where necessary and in the coming 18 months the NHS will take over commissioning responsibility for healthcare in police custody to ensure similar clinical governance and standards to other NHS care. Taking the Home Office circulars at face value, it would cost a phenomenal amount of money to ensure that every detainee who states they have a mental health problem to be seen by a psychiatrist – however you’re choosing to define that – and it could also be asked whether we actually have sufficient psychiatrists anyway! AMHPs who coordinate MHA assessments often report delays in being able to find a s12 DR – this would only be harder still if every shoplifter with depression is in the same queue for the same small pool of doctors.
Of course, shoplifters with depression could be seriously unwell, which is why the FME service makes decisions and many a shoplifter is flagged in custody, assessed under the MHA and admitted to hospital. Of course, the Home Office could have put this requirement in the PACE Codes of Practice, by defining what they mean by ‘psychiatrist’ and lifting the implications of their guidance. Code C of the Codes of Practice has been updated countless times since 1990 and is still the requirement that the police have people seen by an ‘approved healthcare professional’ and that they have routes to NHS MHA assessment, where required. The police do ensure that those detainees thought to need a psychiatrist by the initial attending doctor, actually do get one and this will only improve in the future as liaison and diversion services expand, as the NHS take over commissioning for healthcare in custody and so on. But we do need to be clear about this: the legal duties upon our police force are expressed in Acts of Parliament, statutory regulations and so on. Codes of Practice, Home Office guidelines and other non-statutory guidance is helpful, aspirational and so on; but it is not always possible and this does not automatically mean that police officers or police forces are acting outrageously, or even illegally.
Mind themselves stated in their email to me (referred to with their permission) that the material they allude to on their website is not, ultimately, binding on the police. Their guidance on their website is correct: it is Home Office advice and you can ask for a psychiatrist if you want one; but whether you get one will be an issue to be determined locally according to the availability of NHS services and the detention circumstances in which the request is made. Meanwhile, the police will continue to have a legal responsibility to ensure that those in custody who have medical needs whilst detained are seen by forensic medical examiners capable of assessing whether they are fit to be detained, interviewed and charged and guiding police officers where the answer to this is ‘No’.
Winner of the Mind Digital Media Award.