No Legal Duty

You may remember at the end of last year there was an inquest in York into the death in a police station of Toni SPECK whilst detained under section 136 of the Mental Health Act? … the jury decided, on the balance of probabilities, that she died from serotonin syndrome whilst detained by North Yorkshire Police. This was one of two explanations given by the pathologists involved in the investigation, the other arguing that she died from excited delirium – the condition that many doctors argue does not exist. Coroner’s have a right to consider any issues that they reasonably believe are relevant to the circumstances of someone’s death and because Toni SPECK died in police custody, the inquest was what is known as a ‘Middleton inquest’ or an ‘article 2 inquest’. Counsel for Ms SPECK’s family argued that the Coroner should consider as directly relevant the issue of NHS services in York deciding or omitting to ensure that there was a health-based Place of Safety available for those who were detained by the police under the provisions of the Act. The Coroner declined to consider this as relevant and prevented evidence being heard about it in connection with Ms SPECK’s death.

JUDICIAL REVIEW

We have recently seen the publication of a ruling where Ms SPECK’s family sought to judicially review that particular decision. Continuing to argue that the Coroner should have considered health-based Place of Safety arguments, they asked for permission to bring a judicial review in the High Court, to overturn the omission of this consideration. I read this with interest, not least because I’ve spent a large part of my life arguing about the need for health-based Place of Safety provision in all areas and because I’m pretty sure I will look back on my work at the end of my career and think that the introduction of such a service in Birmingham was about as good as it got.

Having been the custody sergeant who had to detain people in police cells because there was, quite bluntly, no other option at all; I have often thought it may well have been nothing more than luck that meant I haven’t been one of the officers who did exactly what local health arrangements wanted me to do, only to find myself suspended and investigated for homicide and misconduct offences arising from obliging. their preference. I now know that there are few situations in which I would ever authorise detention in police custody of anyone detained under the MHA who had not been clinically examined by a member of the NHS – if the arrangements in an area failed to offer up a member of the NHS that was accessible at the point of arrest or at a health-based Place of Safety, I’d remove that person to A&E. This is my own, strictly personal view.

  • How do I know someone I’ve detained isn’t suffering from serotonin syndrome? – I don’t … and I can’t.
  • How do I know someone I’ve detained isn’t suffering from a urinary tract infection that has altered their cognitive functioning? – I don’t … and I can’t.
  • How do I know someone doesn’t have a brain tumour? – I don’t … and I can’t.
  • How do I know someone isn’t experiencing one of over 40 kinds of epileptic seizure? – I don’t … and I can’t.
  • How do I know someone isn’t diabetic – I don’t …and I can’t.
  • These are all real examples, by the way! – some of them potentially fatal, if unchecked.

So the provision of health-based Places of Safety is an important issue, along with appropriate conveyance arrangements: there are national guidelines on relevant s136 PoS standards, including conveyance; there has been adverse caselaw and IPCC inquiries arising from the detention of individuals in police custody; and, of course, there is an ongoing argument from the Royal College of Emergency medicine that Accident & Emergency departments are unsuitable places to take someone with a mental health problem.

SPECK JUDGMENT

So here’s a peculiarly British kind of problem: there is no legal obligation at all, on anyone at all, to ensure suitable provision of a health-based Place of Safety service of the kind envisaged by the Royal College of Psychiatry standards on s136 (2011). No legal duty, whatsoever. Everyone agrees it’s a good thing and that it should happen; that bad things are seen to occur when it doesn’t happen … but no-one has a duty to ensure it actually happens!

You couldn’t make this up!

For what it’s worth: I was surprised the argument was put at all. Easy to say this after the ruling, but I think I’d have predicted this outcome, because ultimately, any medical issues that cannot or should not be managed in police custody as a Place of Safety can lead to officers removing someone to A&E. Whilst there are many reasons to argue that a health-based Place of Safety is highly desirable, it’s not ultimate critical to providing emergency patient care – that’s what A&Es are for.  I fully, fully appreciate that A&E will not like this argument, but it nevertheless remains (legally!) true.

This ruling is interesting for a couple of other points: the judge made passing reference to the ‘designation’ of local services as a Place of Safety, pointing out that the Chief Constable had agreed to designate police custody for use. It was therefore interesting that they did not mention the issue of designation when referring to the officers’ legal right to remove someone to A&E as a hospital. This remains one of the points of confusion in some areas, about whether A&E is a Place of Safety at all. I’ve always argued that irrespective of whether or not it is ‘designated’ as such, officers remain entitled to take the decision to remove someone to such a location, especially where they have concerns about the immediate health of a patient.

This brings us back to the key issue in the death of Toni SPECK and others like James HERBERT, Michael POWELL, Sean RIGG as well as plenty who I won’t name as investigations and / or legal cases are ongoing: to what extent should police officers be responsible for deciding without any clinical support whatsoever, the location to which someone should be removed under the Mental Health Act? We continue to learn of cases like that of Toni SPECK, where people detained were suffering from a serious underlying medical conditions that required urgent intervention but which would not always be obvious to non-clinical staff, even with an up-to-date first aid certificate! It must be heart-breaking to learn, as her family did, that if officers had removed her to A&E, it may well have been possible to identify and / or better react to those medical problems.

WHAT DOES THIS MEAN?

This is not a binding, stated case – although it potentially clarifies the situation for some: there is no explicit legal duty on any organisation in particular to ensure health-based Place of Safety provision. Does this mean that areas could simply choose not to provide these services? … everyone seems to agree they’re a good idea! Well, that’s what happened in many areas for most of the time since the 1959 Mental Health Act received Royal Assent and first introduced the modern s136 power. It was only around 2010 that we moved to a position where more people were detained in hospital under this provision than found themselves in police custody. We also know that some mental health trust areas have reduced their PoS provision over the last few years and that others are looking to do so.

But this ruling implicitly confirms a couple of things – and they are important. The whole thrust of the concern leading to the Coroner’s decision seemed to be the understandable anguish that if faster access to clinically qualified staff had occured, it may well have led to identification of Toni SPECK’s condition and a life-saving intervention applied. I infer from the challenge brought and the judicial review sought that it was assumed a health-based Place of Safety would have delivered this? … I suspect it didn’t make the crucial difference, but maybe I’m wrong about that.

Would a mental health nurse at a PoS mental health unit who was undertaking an initial and routine screening assessment of a detainee have identified concerns about their agitated, resistant presentation and / or serotonin syndrome and recommended removal to A&E? Almost certainly not, would be my experienced-based answer. Would a police officer or paramedic have been able to do so at the scene? It is certainly not reasonable to expect the police to do this – something the jury in the inquest made quite clear in Toni SPECK’s case. So we’re back to paramedics who are now usually called by the police to the scene of detentions under the MHA – is it reasonable to expect them to identify such issues and what about occasions where they are unable to respond?

As the High Court refusal to allow judicial review made clear: the police have got every right to remove people to an A&E department where they are unclear that someone would be safe in police custody and of course, this includes custody sergeants who have already detained people in custody, but where concerns develop about health and wellbeing. If NHS areas wish to do this by ensuring ambulance responses and health-based Place of Safety provision – notwithstanding a lack of clear legal duty to do so – then they increase the likelihood that police officers who are increasingly aware of what can go wrong as more an more evidence mounts amidst the tragedy of lives lost.


IMG_0053IMG_0052Awarded the President’s Medal by
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.


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3 thoughts on “No Legal Duty

  1. No legal responsibility to provide a health based place of safety! You are right, Michael, you could not make it up. I am sure the key to preventing deaths is a close working relationship between well trained and informed paramedics and police response officers and custody staff so that a highly agitated and resistant person in mental health crisis is always treated as a medical emergency and taken to A and E. The way that it works in the West Midlands, in fact. Where there are less good partnerships, it is vital that police officers are trained and informed to recognise that such events are medical emergencies and to call an ambulance. Health Based places of safety are not appropriate places for somebody who is a medical emergency unless they are on the same site as an A and E Department. Perhaps the core of police training where the police cannot call an ambulance to all Sections 136 detentions should be— De-escalate as restraint is very dangerous. If you can’t de-escalate, call an ambulance at the same time as you decide you will need to restrain. If you can de-escalate, get the detainee to a health based place of safety. If you can’t, the person needs emergency medical attention quickly.

    I am probably over-simplyfing but it seems to me that is what you train and the central message– a highly resistant and agitated person in restraint is a medical emergency– is not a difficult one to grasp, even if it is not particularly intuitive.

  2. Interesting and very sad. God comment above. As you say in a health based place of safety in our area you will be checked by a doctor, but they aren’t substantially better placed to deal with a medical emergency than custody. I think that is an excellent test, if someone isn’t responding to deescalation then A&E is where they need to be.

  3. My experiences show that no one in the relevant services is responsible for the safety of very vulnerable people. It is either someone else’s fault or the problem doesn’t exist at all. When you try to pin them down to who is responsible for what, then you would have more success nailing jelly to a wall. Whilst the MHS can pass responsibility/blame onto the police for mental health care then nothing will change. The rest of the system then passes responsibility for resolving every single failure onto the Parliamentary & Health Service Ombudsman and so we just go around in circles; allowing very vulnerable people to die in the process. There are lots of very simply, cost effective solutions but no one is listening. Keep up the good work Michael..

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