You will remember, last December, that a review was published into the Operation of ss135/6 of the Mental Health Act 1983 after an extensive period of seeking the views of those who have been affected by the Act or involved in its implementation.
I admit to reading it and thinking a few things – this post is about just one of them. I reached only the second legislative recommendation in the review and took a sharp intake of breath on the subject of whether or not to ban the use of police cells as a Place of Safety. It stated, “Ensuring that police cells can only be used as a Place of Safety for adults if the person’s behaviour is so extreme they can not otherwise be safely managed.” We’ve heard this sort of thing before, in various forms. The reason it struck such a chord with me was because almost all the major untoward incidents we’ve seen in the last few decades or so involved issues around restraint and the use of force. So where the police detain someone whose ‘behaviour is so extreme’ we can reasonably expect the officers to be using some level of force, to protect the person from themselves in most cases. So where police officers decide they must act, how much force is enough force or too much and for how long can it continue before it becomes excessive or dangerous?
NEW GUIDELINES, NEW JUDGMENTS
In just the last few weeks we have seen yet more reasons to wonder about this. Last week the National Institute for Health and Clinical Excellence published revised guidelines on Violence and Aggression (2015), replacing those we saw in 2005. If anything, this new document strengthens the point that could previously have been made if I’d written this post even a month ago: some behavioural presentations are clinically significant and can only be safely managed with appropriate clinical intervention. This is not breaking news, the dangers of restraint have been known for years – the Rocky BENNETT inquiry heard evidence that the restraint of a mental health patient needs to be treated as a medical emergency and that Doctors should be available for such patients within 20 minutes and nurses should be on hand with drug trollies, defibrillators and so on. Well your police service encounters people like Rocky BENNETT in non-clinical settings – how do we give effect to that kind of care?
Talking about acutely disturbed behaviour or so-called excited delirium is difficult because of a lack of clinical consensus. I’ve personally heard a psychiatrist telling me that excited delirium is ‘not a thing’ because it’s not in the medical manuals. Yet it’s been given in the United Kingdom as an explanation (or a partial explanation) for sudden death and some of those examples do not involve the police. Whether acutely disturbed behaviour is a euphemism for excited delirium or not, it has been cited along with restraint and other factors as part of the explanation for the death of Kingsley BURRELL in Birmingham in 2011. The Coroner’s narrative verdict outlined neglect and excessive force was involved in the multi-agency response to a disturbance on a mental health ward that ‘more than minimally contributed’ to his death. We have seen discussions like this before (Sean RIGG, Michael POWELL, James HERBERT) and we will see them again in Coroners’ Courts (Olaseni LEWIS, Leon BRIGGS) in the months and years to come.
So we see the stakes here are high: which is why I do worry whether I’m just being pedantic. Most officers have got stories in their careers of the disturbed patients they’ve restrained for far longer than any guidelines would suggest is wise and where they’ve done so whilst medical staff feel absolutely unwilling or unable to take any other course action. I’ve asked countless times whether NHS staff have even heard of the Violence and Aggression guidelines (2005) and usually been met with a blank look – these were the guidelines that were in place on 30th March 2011, of course. Along with the Code of Practice to the Mental Health Act that appears to have been disregarded (based on factors made known during Kingsley’s BURRELL’s inquest), it does beg the question about how officers are expected to stop another human being from hurting themselves or from hurting others when they have just ten minutes at the absolute maximum in which to use any level of force and after that it will become either legally excessive or medically dangerous.
What if we find those thresholds are reached during the initial management of an incident where section 136 of the Mental Health Act is invoked and we now have to make a decision? – whether to go to the NHS mental health unit Place of Safety (which will probably exclude resistant patients, regardless of what it says on p8 of the multi-agency 136 guidelines we all signed) or whether we go to A&E (who will probably still insist, as the Royal College of Emergency Medicine did in their 2014 mental health toolkit, that they are not a place of safety and that they cannot accommodate violent patients) or whether we have to resort to custody because everyone except the police is able to point to new legislation or statutory guidance and say, “This is now an exceptional circumstance, as defined.” We can imagine the potential pressure on police officers to do what the Rocky BENNETT inquiry, recently revised NICE guidelines and various Coroner’s have implicitly or explicitly cautioned against because it is couched in new legislation or statutory guidelines.
So how does this all get squared away, because I really am trying hard not to be pedantic? – I admit I don’t understand and it doesn’t seem we’re not easily able to explain what we’re actually asking the police to do. This should worry us all because I’ve got to oversee how we write new guidelines for the police in the next six months and currently, I’m going to have to explain how to eat your cake and have it too.
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