Where a Coroner concludes an inquest they are entitled to issue a ‘Preventing Future Deaths’ order making recommendations to relevant agencies where they feel that minimises the likelihood of similar, future tragedies. The agenices are obliged to provide a response and it seems there is one heading my way at the College of Policing, following the very sad conclusion of the inquest into the death of Martine BRANDON in Hampshire in November 2014. You can see. PFD reports and learn more about the work of HM Coroners on the website of the Chief Coroner, including an annual report on their work.
Media reports have covered the background story. To Mrs BRANDON’s death and the various failings by Hampshire Police for which the force have apologised and in connection with which various officers face disciplinary proceedings. The bulk of the story concerns Mrs BRANDON’s detention and treatment in custody – but there is one particular apsect of the case which appears to be heading to the College of Policing and which I’m suspecting will land on my desk at some stage soon. It is in connection with the specific issue of the original grounds for Mrs BRANDON’s detention at the point of arrest, shortly after she first encountered the police.
Media coverage tells us the senior Coroner criticised the decision of police officers to arrest Mrs BRANDON for possession of a knife, rather than detain her under the Mental Health Act because “Mrs BRANDON was clearly mentally unstable” and should have been taken to “a safe place”.
So how do you frame guidance to help officers understand when to prioritise detention under the Mental Health Act from arresting someone for a criminal offence?
What follows in the remainder of this post is not about the particular case, because such decisions by police officers cover a whole host of situations and circumstances, often involving other considerations to those raised by Mrs BRANDON’s arrest. But one of the biggest problems is that all such decisions MUST, by definition, be taken in circumstances of ambiguity and uncertainty. No police officer knows very much for certain when making such a call and I’m starting from a premise on which I have to assume we all agree: that in some situations, police officers will be quite right to arrest a mentally unwell person for a criminal offence and manage their healthcare needs whilst under arrest. Even if such occasions are rare, we still need to be able to articulate how to distinguish them so officers know what is expected. The most obvious example is where the alleged offence gives rise to the need to exercise police powers of search and seizure after arrest for an offence: if someone has allegedly committed an offence where there would be forensic evidence, for example.
So how does one frame the kind of guidance the Coroner is calling for: where is the line between those situations where s136 MHA would be the appropriate authority and those situations where other powers should be used? – indeed, what do we need to think about as the ‘normal’ response to such a dilemma: do we assume such situations should be handled via the “Mental Health Act unless …” or “Arrest for the offence unless …”? I’ve always thought this is profoundly difficult and I addressed this very question during the early months of writing this BLOG. The media coverage of the Coroner’s comments caused me to reflect on my thinking because the very example I used in that early post was very similar to this tragic incident and I argued for an arrest, not the use of the MHA.
My main reason, was about the management of risks. Most of the people that the police detain under the MHA will not, subsequently, be ‘sectioned’ – if the person is detained under s136 and then discharged from detention after assessment, there needs to be proper management of risks. In some incidents where threats are made, the police have a positive legal duty under human rights law to ensure risks are mitigated, including drawing such threats to the attention of those affected, if they were not already aware – so called ‘Osman‘ warnings. Of course one way to mitigate risk if serious threats are made, is to arrest the person for the offence and consider their mental health needs as part of the broader criminal investigation. if someone is assessed and not ‘sectioned’ under the MHA, which is the case for most people, then they remain in custody for investigation of the allegation.
It may ultimately be a judgement call based on the nature of the threats, the background of those involved and a whole host of other variables but I’ve known Approved Mental Health Professional raise concerns that officers are too quick to use s136 where criminal offences are involved, including an example where someone was waving a knife around. It was that example which I had in mind when writing the 2012 post after an AMHP complained about the inaction.
There is a major practical problem when guiding police attendance at mental health crisis incdients where detention or arrest is necessary –
Criticism of a decision not to use s136 MHA implies that officers knew or ought to have known that someone was mentally ill and still took a deliberate decision to arrest for an offence rather than the MHA. That may be the case in this example and it is not the only tragic incident where the point has been raised.
We should learn the verdict next week in a criminal trial of police custody staff following the death of Thomas ORCHARD in 2012. He was also originally arrested for an alleged offence rather than detained under the MHA and his sister Jo is quoted as believing this decision was utlimately critical. “My brother’s case should have been treated as a medical crisis rather than a criminal one. He should have been sectioned rather than arrested. If this call was made correctly my brother would still be alive today.” This is difficult and important stuff – but DRs don’t always get this right when they have an hour or so to undertaken an assessment: in some incidents, police decisions are taken far faster and without the benefit of knowing someone’s background. Indeed in this case, it was observed Mrs BRANDON had no recorded history of mental illness.
So one practical thing is obvious: whatever guidance can be produced on this kind of decision, it can only be implemented where the officers involved do, in fact, suspect the person has a mental disorder. There are any number of problems with ensuring this, as I have been reminded during my last eighteen months of helping draft guidance on policing and mental health. It sometimes takes Doctors with a decade of post-qualification, post-graduate education several days or weeks to establish whether someone has a mental disorder – it can take days after certain presentations to work out that someone is actually just under the effects of drugs. Any number of other factors can influence perceptions around mental-wellbeing, including false positives from legal highs and other medications as well as false negatives such as alcohol.
We know that there have been several cases over the last few years where mental health professionals have assessed someone at a dynamically unfolding police incident and got it wrong, even with the benefit of paramedics to assist in assessment by ruling out obvious physical health indicators. We also know that this has on at least one occasion led to someone’s death.
The reality that police officers, especially where they are acting independently of other agencies in time critical incidents, are not always going to get this right.
SOME OTHER THOUGHTS
I’m also convinced that these issues raise bigger questions about our public policy on so-called ‘mentally disordered offenders’ and touch on the the subject of parity of esteem. Research indicates that most people who offend whilst mentally unwell are not offending because of their condition. Indeed, NICE guidelines on Violence and Aggression contain the statistic that this is true of only 7% of MDOs – and that statistic assumes we can, in reality, determine the difference between mentally ‘disordered’ and mentally ‘ordered’ people or offenders. So if you wanted to play the odds, you’d be better off assuming that any offence should be regarded as separate to anyone’s health needs until more fully understood as being related. Legally speaking, all offenders are assume to be sane and responsible for their actions but public policy (in Home Office circular 66/90 as well as others that followed and updated it) encourages diversion from justice where this is consistent with the management of risks to the public. Without knowing too much about someone’s mental health, their history of offending, how can officers weigh this decision at the point of detention? – section 136 is, in itself, a diversionary mechanism so nothing prevents this approach but it is more confidently taken the less serious the alleged offence and the less complex a person’s background.
I also admit to wondering whether detaining someone under mental health law would have made the difference some have hoped for? – I accept fully, that national guidelines on the use of s136 imply there should be ‘safe places’ set up by the NHS for the reception and safe detention of anyone who is detained by the police and that custody should be used as a Place of Safety only on an exceptional basis. Reality is often very different. You may remember only two months prior to the death of Mrs BRANDON, the BBC’s Panorama programme covered a week in Southampton police station – the very custody area where this tragedy unfolded. We saw people detained under s136 MHA during that programme who should never have been there according to these guidelines and nationally, we are still nowhere near achieving a situation where police custody is used only exceptionally. Indeed, the CQC published their report on Crisis Care (2015) which followed up on their report on Places of Safety (2014) – both of these remarked on the exclusion criteria which are all too often in place within NHS Place of Safety services, notwithstanding what is said on p8 of the Royal College of Psychiatry Standards on s136 (2011). It is often worth remembering these things following any death in police custody of a mentally vulnerable person.
Finally, the most obvious point for me is this: regardless of the legal reason that governs someone’s detention, the police have every right and arguably a duty to call an ambulance for someone they think requires it and to remove someone to A&E if that is thought to be necessary. This applies in respect of both physical or mental health and we know the volume of evidence that already exists, and guidance which already supports the notion that until otherwise declared by somone who works for the NHS:
The ongoing restraint of a mentally vulnerable person is a medical emergency.
I’m therefore left wondering whether it’s the wrong way to look at things to be focussed on different standards of health-screening procedures or separate pathways, as the NHS calls them, for those in one kind of legal detention compared to another? – your unmet clinical need is your unmet clinical need regardless of whether the police arrest you for an offence or detain you under the MHA; indeed that is also true of if you have been removed you from your own home in a life-threatening emergency under the Mental Capacity Act or not detained at all. Police officers would have the same duties and obligations towards anyone they think is vulnerable and the NHS is available in one way or another for anyone who needs it. The precise legal framework is potentially irrelevant, unless local NHS procedure makes it difficult to navigate – which they still all too often do and maybe that’s the main point here?
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown OBE, 2020
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – http://www.legislation.gov.uk