That was quite an unexpected day! The IPCC published a summary of one of their investigations along with the recommendations they have made to Sussex Police following a series of serious incidents in which a young person was arrested or detained. Sussex Police have accepted that a total of 12 police officers misconducted themselves and have instigated either disciplinary procedures or have given management advice to those still in service – two have since retired. The media coverage has been considerable, raising more questions for me than it answered.
It’s clear things went wrong: the Deputy Chief Constable of Sussex Police admitted as much on early morning radio and that has been repeated throughout the day. In addition to undertaking disciplinary procedures and giving advice where thought necessary, Sussex has stated they have reviewed policies and procedures, including around so-called spit hoods or spit guards, suggesting that there needs to be a debate with the College of Policing about these devices. That’s when my phone began to ring and I found myself in a small room at BBC Birmingham talking to Radio FiveLive (1:12:50). Of course, despite the fact that the College Press Office made it clear before the interview that we couldn’t talk about the specific case – after all, we’d read the news that morning but the College isn’t an automatic party to IPCC investigations and we hadn’t known of it previously! – the second question of the interview took us straight to it, “But she was ELEVEN!?”
These detentions clearly involved a difficult and challenging sets of circumstances and give rise to very sensitive issues. Perhaps the gravity of how Child H’s family are looking at this can be seen from the opinion of their solicitor who described this as the most “inhumane and degrading” case of a child being detained in police cells. I can’t stress this enough: stuff went wrong here, although the reasons behind those failures aren’t clear from public media coverage and I know no more about the particular case than you do. I want to read the IPCC investigation report, quite honestly!
The controversy at the centre of these detentions was the use of a so-called ‘spit-hood’ or ‘spit-guard’ and many people will be unaware that a few police forces issue this equipment. For those who are not familiar with them, such devices are designed to protect professionals from those who may spit or bite during restraint and there are various versions – one involves a more-or-less transparent mesh which means breathing is not restricted but bodily fluids wouldn’t easily penetrate the mesh. In another, an emergency restraint belt mainly intended to be used for restraining people’s legs is also claimed by the manufacturer as being something that can be used as an ‘improvised’ spit guard. Such a device is alleged to have been significant in the case of Thomas ORCHARD which involved a custody sergeant and two detention officers standing trial for manslaughter – and they are due to face re-trial in early 2017.
So we know these devices are and approaches are not without controversy and difficulty.
I’m aware in mental health services of a spit guard which involves applying the device to the professional, not the detainee. It is basically a visor that covers the face and ears and leaves the patient or detainee unrestricted. Each of these devices has different risks and benefits and – obviously, if worn by the professional, the visor can become covered in bodily fluids and restrict the professionals’ view; and there are probably more on the market from specialist companies that I haven’t come across because I haven’t taken extra time to research this stuff. But for all the various risks and benefits, one other point remains true: not using them at all also has risks and benefits. It opens up the reality of what would happen in forces where such devices are not avialable: manual handling of the head and neck and I’ll be honest, I’ve been forced to do that, because I am not going to let myself be spat at during my work.
Most police forces do not issue a spit-guard of any kind to their officers, but I’m aware that many forces and groups of frontline officers, have discussed these issues, because spitting and / or biting – whether by an 11yr old or a 21yr old with a neurological disability or from a 31yr old who has been arrested for burglary – is particular challenging behaviour to accept and manage, despite allowances that are made where officers know the person has a disability. Some officers who have been spat at have subsequently contracted diseases like hepatitis and meningitis and despite all the discussion today about the rights of those detained, especially children, it also remains true that police officers are absolutely entitled in law to take reasonable steps to ensure they are not assaulted at work – they do not have to tolerate the very real risk of being assaulted in any way. I have experience of my own of a detainee wanting to spit at me and I freely admit, in the absence of any other way of keeping myself safe, clean and unexposed to the unknown risks, I used phsyical force with my hands to ensure the face was pointed away from me. This business is not edifying and I’m sure it carries dangers in terms of placing pressure on the head and neck. Such risks are obviated with the use of an effective spit-guard, but it’s about how you trade off the various kinds of risk involved.
Of course, discussion on social media today has seen the police heavily criticised for ‘spit-hooding’ a child and Miss H, her mother, has called for the practice to be immediately banned. We can all understand why and when I listened to Miss H’s description of the shock and horror of seeing her daughter in custody, you couldn’t fail to wonder how it must have felt. I am the parent of an eleven year old and the very idea of this happening to him is extremely distressing to contemplate. But it raises broader questions than any individual incident can help us understand: how do we want the police to keep people safe within the laws we ask them to operate? We cannot demand the police remove children under arrest for offences to specialist CAMHS facilities because –
- They often don’t exist! – and we see the Government having to legislate to motivate the NHS to ensure adequate provision for children detained by the police under the Mental Health Act;
- PACE says people under arrest should be taken to custody unless they require A&E treatment;
- A&E have traditionally had their own views about the appropriateness of taking mental health patients of any age to a busy department, but especially so when they are distressed and exhibiting challenging behaviours – but we also know there are dangers in not doing so!
But this also gets us in to a topic in which I’m increasingly interested and to which Child H’s mother directly referred: by appearing to defend the general principles that sit behind police actions on the grounds that these are difficult situations and that ultimately, the police often keep people safe until situations have stabilised and formal assessment can take place, we see the restriction of a child using three separate pieces of police safety equipment as one where we define safety in purely physical terms. We thereby implicitly disregard this young person’s psychological safety and well-being. What do we think will be her anticipation of future encounters with police officers if she should become unwell in the future? – for some patients with mental health problems, physical harm is less concerning than psychological harm.
OTHER CUSTODY PROBLEMS
For those who have wondered about why no appropriate adult was provided during the various detentions, I would like to say a few things although we’d probably need to read the IPCC report to know why. All I can say that may go some way to explaining why a child’s mother would not be permitted in custody on all occasions is that in three of the four detentions concerned, Child H was arrested for alleged offences, not detained by the police under the MHA. Perhaps this was a result of police being called to private premises where powers under the Mental Health Act for police officers are not available? … I don’t know.
But I do know that a person who is a victim or a witness in an incident subject to criminal investigation cannot act as the appropriate for the person under arrest. I also know that when Code C to the Codes of Practice to PACE was amended in 2012, the requirement for an appropriate adult where a person is detained under s136 of the Mental Health Act was amended – it now states (para 3.16 to Code C) that there was no role in the assessment process for the appropriate adult. Whilst I’ve always interpreted that to mean an appropriate adult should still be called for children and adults when they are first booked in to custody and their rights and grounds for detention are explained, there are varying opinions about this.
I’ve mentioned a lot over the last eighteen months, various people are confusing the proposals the Government are bringing forward about banning the detention of children in police cells. The proposed ban in the Policing and Crime Bill 2016 is purely a ban on the detention of children who are detained by the police under the Mental Health Act. Nothing will legally prevent the detention of children with mental health problems in custody where they have been arrested for offences and as more people are encountered in private premises than public places, it follows that where detention is necessary to keep someone safe, it will more usually be for offences than under the MHA and that’s what we see in the ‘Child H’ case: three arrests for offences, one detention under the MHA.
WORK TO DO
And of course the discussion that no-one has had here is about the broader health system: why was no health-based Place of Safety available to this 11yr old on the occasion where she was, in fact, detained under the Mental Health Act – a police cell shouldn’t have been necessary on that occasion according to nationally agreed standards on the operation of s136 that were in place in 2012. The medica report from the IPCC is very clear that there were broader failings in capacity and capability not just from the police but also from others that could and should have been involved here. Therefore this raises questions about the IPCC itself: it’s authority is over the police forces and officers where misconduct is alleged or suspected so what happens to the reports of the non-police shortcomings?
So the big questions: do all areas of the UK have in place the infrastructure and mechanisms to ensure that a young person exhibiting very challenging behaviour can be safely cared for, with dignity, irrespective of whether they were arrested for alleged minor offences or detained under mental health law and can we say this kind of thing would never happen again? If you look at the background reasons why this happened at all and then examine areas for their Place of Safety provision as they prepared to deal with the implications of the Policing and Crime Bill, there are some who think it is not possible to achieve and are lobbying for the proposals not to go ahead.
If you remember that there will be no change to the way in which the NHS can distance itself from the immediate or urgent need to provide sanctuary to children arrested for minor offences following a breakdown in their homes where parents are struggling to keep them safe, you are forced to conclude that officers may – yet again – be faced with little or. no option but to start deciding whether they use or improvise a spit-guard or whether they manually handle the head and neck of a vulnerable person to protect themselves from assault whilst trying to keep someone safe who probably needs urgent medical care.