This BLOG post is a direct response to a piece that appeared in the Guardian, entitled Tasers have no place in mental health care by Matilda MacATTRAM, Director of Black Mental Health UK. Before going further, I’d encourage you to read the whole piece for yourself. The debate in the House of Commons did include two amendments by MPs about Taser: Charles WALKER MP called for greater scrutiny through improved reporting; Normal LAMB MP (former minister of state for mental health) called for an outright ban on the use of ‘electro-conductive devices’ on psychaitric wards. I think the (then) policing minister, Mike PENNING MP, more or less summed up my own position: that we would all like to live in a world where the police are not called to inpatient psychiatric wards and that even if they were, that it would not be necessary to use a device like taser. But I don’t police the world I want to live in; I police the world I do live in and mental health wards can be extremely violent and dangerous places that patients and staff alike will often say feel unsafe.
A couple of months ago, a mental health nurse was murdered by a patient in a Croydon mental health unit. In 2014, a mental health nursing assistant was murdered by a patient in Gloucester after he returned from authorised leave with a ten-inch kitchen knife. The last time the NHS published their assault figures, we learned that around 70% of the 67,000+ assaults which were reported occured within the mental health sector – we know that many of those were assaults occasioning actual or grievous bodily harm. So the first thing we need to do is – yet again – debunk the myths that surround the nature of the relationship between mental ill-health and crime.
MENTAL HEALTH AND CRIME
MacATTRAM writes –
“What we seeing [sic] is a health service relying on a forensic solution to meet clinical need, and yet policing really has no place in mental healthcare.”
WOW! – I hardly know where to start at the naivety of this statement. It is explicitly written in to our laws that policing has a place in mental health care … the Mental Health Act 1983 affords various powers to the police and mental health professionals but we expressly afford the police some powers of their own that even psychiatrists and mental health nurses cannot exercise – section 136 MHA. The criminal justice system is the only route to some patients being detained under certain kinds of orders of the Mental Health Act and guess who makes decisions to send people in to the criminal justice system? That will be the police. So it is neither true, nor realistic to make this claim.
The ‘forensic solution / clinical need’ statement needs pulling apart too before we can get on to any role that Taser should or should not play. I admit tor remaining unclear as to what this means, precisely. But if we are saying that all interventions on mental health wards around aggressive or resistant behaviours are clinical interventions, then this is also far from the accurate. Many patients who have offended even whilst detained under the MHA in hospital are found, in law, fully responsible for their actions and convicted. For example, when Ryan MATTHEWS appeared in court in December 2014 accused of the murder of healthcare assistant Sharon WALL, he pleaded guilty and was imprisoned – there was nothing ‘clinical’ about his attack. Imagine – hypothetically – that a police officer was standing there, in possession of a Taser: justified to use it?
More widely on crime and mental health, research referred to in the NICE Guidelines (NG10) on Violence (2015) refers to the figure above 90% for the proportion of people mental health problems who offend whose behaviour does not directly emerge because of their mental health condition. So where any deployment of Taser is being considered by a police officer in the context of a serious offence in progress or serious risk to life, it would remain true that most people could – at least in theory – be held responsible in law for their actions and that this is not a ‘clinical’ intervention, but a crime prevention intervention.
I’ve heard the claim before about Taser amounting torture so I decided this time to actually look it up. We need to refer to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and then to the 39th session of the UN’s Commit Against Torture, which met in 2007. The document of the 39th session is 325 pages long and I’ve done my best to read it all: I can only see one reference to Taser and it comes on p40. It is important to understand the context of the following comment: it is a specific reaction to the Committee learning that Taser has been issued to certain members of the various Portuguese police services –
“The Committee is deeply concerned about the recent purchase by the State Party of electric “Taser X26” weapons for distribution to [the Portuguese Police]. The committee is concerned that these weapons cause severe pain constituting a form of torture, and that in some cases it may even cause death, as recent developments have shown.
The State party should consider relinquishing the use of electric “Taser X26” weapons, the impact of which on the physical or mental state of targeted persons would appear to violate articles 1 and 16 of the Convention.”
I will give advance notice of what may appear to some to be imminent pedantry in what I’m about to say, but I think these are important points to make –
- What does the UN Convention on the Prohibition of Torture Actually say? – the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
- What did the UN actually say about Taser? – it didn’t say “Use of Taser amounts to torture” in a general proclaimation. They said they are ‘concerned it may’ … for my mind, this is about proportionality in any given case and about whether more widespread issueing of the equipment means there will be more likelihood of cases where its use is not legally justified? There are clues in this direction elsewhere in the UN’s work because they revisited this in 2013 when the Dutch Police were considering a pilot of these devices whereby they would issue them to all police officers in a certain area.
- The Netherlands, 2013 – whilst expressing their reservations again, the Committee did not call for total relinquishment of taser merely calling instead for the Dutch to refrain from ‘flat distribution’ to all police officers. They hoped that special protocols would be agreed for those who did carry the devices and that they would only be used as an alternative to lethal weapons. But torture is torture, right? – there can be no exceptions to that rule and there is no defence under the Convention so if they thought taser were inherently tortuous, they’d call for a complete ban. What must we infer from the fact they didn’t?!
Presumably, if critics like Matilda MacAttram are correct that its use amounts to torture, then it’s torture whether used by a limited number of specially trained officers or by any officer who is carrying it because everyone does. The former approach is the current UK deployment model – most officers do not carry a conducted energy device (CED, the preferred term); whereas in the US, many police departments have issued this device to all frontline patrol officers.
UNITED KINGDOM LAW
Section 134 of the Criminal Justice Act 1988 is our domestic law and creates a criminal offence of torture, punishable by imprisonment. During one CAT document on UK progress against torture, the Committee does express regret that UK law affords a defence to any allegation of torture, something the UN says should be removed. UK law states that –
A public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties.
In addition to another offence (sub-section 2 of s134) of someone committing torture if they inflict severe pain or suffering an another at the instigation of a public official, the defence I referred to is in sub-section 4 of s134 – and this is where I breathed a sigh of relief , because it “shall be a defence for a person charged with an offence under this section in respect of any conduct of his to prove that he had lawful authority, justification or excuse for that conduct. For the purposes of this section ‘lawful authority, justification or excuse’ means … lawful authority, justification or excuse under the law of the part of the United Kingdom where it was inflicted.”
My sigh of relief was because I have inflicted severe pain or suffering on others in the course of my duties: I have repeatedly struck people with batons; I have restrained people for hours on end in hospitals to stop them hurting themselves; and used public order shields to strike people repeatedly and pin them against walls – thus allowing my colleague to repeatedly baton a large knife from the grasp of a man who seemed hell-bent on killing us all. But in those contexts I was acting lawfully, tasked as I had been with arresting or detaining people under other laws, like the Police and Criminal Evidence Act or the Mental Health Act. I have also been in charge of several operations where Taser has been deployed against extremely violent and sometimes very vulnerable people.
A SHORT HISTORY OF TASER
Matilda MacATTRAM is quite to highlight that Taser was first introduced in the UK for authorised firearms officers, in order to give them a ‘less lethal alternative’ to guns. The wider distribution of the device is attributable to subsequent decisions to issue Taser to officers who do not routinely carry firearms and this is where it gets controversial for some. Is Taser the second-highest use of force, ranking just below firearms and above the use of batons or incapacitant spray? – no, it’s not. In terms of the impact and after effects, Taser can be less injurious to those targeted than a baton; it can also be effectively operated from a greater distance and at less risk to the officer and third-parties.
So Taser equipped officers are often deployed, for example, to incidents where people are reported to be carrying or threatening the use of knives and most of the time, those officers do not draw their Taser – it happened only very rarely. Both of the homicides of mental health professionals, referred to above, were committed with large knives. To effectively use a police baton on someone with a knife, you have to get close enough to allow yourself to be stabbed: with Taser that is not the case. It is also worth bearing in mind, that in terms of self-defence, none of us have to take any risks whatsoever with our own safety before being legally allowed to defend ourselves, pre-emptively, if necessary. As the greatest threats to the safety of police officers arises not from guns but from knives, it seems inevitable that Taser would be considered as having a role a wider role than those situations where the police would be thinking of pointing a gun at someone. Unless, of course, someone has a better idea for how we stop someone opening up their own neck with a bread knife, without getting close enough to be stabbed?!
What went unmentioned in Matilda’s article is that the vast majority of time that Taser is ‘used’, this merely means it is removed from the holster and / or pointed – it is not normally discharged at the subject. And let’s be clear, the UN appears to have stopped short of saying, “Use of Taser is torture”, because of the remarks they subsequently made about the Dutch pilot in 2013 and because of what they have not said. These later remarks indicate that comments made in 2007 appear to have been clarified and updated – quite rightly given the majority of its ‘use’ sees no pain or suffering whatsoever inflicted on the target and they have never at any stage said that all use of taser should be banned. So is it torture or not? – given they argue there is never a defence to torture, you have to conclude not all use of taser is torture. So we should stop saying it.
I can only summarise: mental health wards can be places of extremely serious violence, including the use and threatened use of weapons and including the deaths and serious injury of mental health professionals – in the majority of those cases, there will be no legal barrier to the full investigation and prosecution of those who have injured NHS staff, even whilst unwell. The distinction that people are patients not criminals is simplistic to say the least, if not vacuous: nothing at all in the law or real life prevents a patient being a criminal and vice versa. As such, parity of esteem has to work both ways: if we accept that the police may be running in to an A&E department – where assault rates are actually far lower – why would we suggest that colleagues working in mental health services are entitled to any less protection from their police service when they’re being attacked and why would we seek to totally prohibit officers from using equipment that will limit injury and better ensure their own safety as well as everyone else’s?
I admit – I don’t even begin to understand.
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, 2019
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