Today, a police custody sergeant and two detention officers have been cleared of manslaughter following a hearing at Bristol Crown Court. This retrial follows the death, in 2012, of Thomas Orchard – a 32-year-old man from Exeter who lived with schizophrenia who had been arrested and removed to a police station whilst in crisis. For a short news piece which sets out the background very well, see Channel Four News. In terms of me covering these events on here, I want to put on record that I have had no involvement in any way with any process that followed the incident or any contact with any parties involved. What follows are only my own thoughts after following the investigation and trial process over the last five years via the media. It touches on those most difficult of issues: the criminal prosecution of police officers following the death of a vulnerable man.
The police received a call from a member of the public to the place where Mr Orchard was arrested under the Public Order Act. He was restrained upon arrest and removed to a police custody suite. Upon entering custody, it was contended by the police officers who were cleared that he was attempting to spit and bite. They resorted to use of an emergency restraint belt (ERB) which had been issued to them by Devon and Cornwall Police, in order to protect themselves whilst placing him in a cell. Having then removed the ERB and themselves from the cell, Thomas was alone for twelve minutes before concern for his welfare led them to re-enter and an ambulance was called. It was said in court that he died from a hypoxic brain injury and the effects of restraint, his brain having been starved of oxygen.
This is a tragedy on several levels, the obvious human cost and suffering to Mr Orchard’s family being first amongst them. Devon and Cornwall Police have stated in their press release the officers involved have suffered a toll as they go through a four-and-a-half year process to get to this point. They stood trial for this once before, in January 2016, and this is not over: there are ongoing disciplinary considerations because the Independent Police Complaints Commission recommended that a total of seven police officers be considered for gross misconduct hearings. This includes the three defendants and four others involved in his original arrest. Regardless of those proceedings, the Devon and Cornwall Chief Constable remains under corporate investigation by the Health & Safety Executive to consider breaches of health & safety law. And of course, there is still to be an inquest in to his death which I doubt will happen this year. History in other cases suggests it may not happen next year either. This is far from over and the Orchard Family’s campaign continues, quite understandably.
As you may imagine, I’ve been interested in this case since first hearing of it. Early on, my interest was particularly sparked when it became known that the IPCC had written to all Chief Constables about the use of ERBs as an improvised ‘spit guard’. This topic remains controversial now, as several forces consider whether or not to introduce equipment, very different to this ERB, which is aimed at protecting officers. This case then also raises that question about the ability of officers to discern a mental health crisis from behaviour on first presentation in a short timescale: in this particular case, Mr Orchard was reported to the police by a member of the public amidst an ongoing argument. No-one was offering pre-known information about his mental health so the ability to identify crisis concerns rested on the officers who attended the dispute or disturbance which had occurred. So how possible is it to train officers so that mental health concerns are raised as early as possible and how might this effect whether a person who is detained is arrested under public order law, as in this case, or detained for their welfare under the Mental Health Act? We know that Doctors can get this wrong, so officers are not always going to get it ‘right’ – but could we get this better?
And even if someone is detained under the Mental Health Act, there is then the question about whether they should be removed to police custody because of any challenging behaviour; or taken to an A&E department or a mental health trust Place of Safety (PoS) because of the difficulty in officers establishing in a few minutes whether someone’s presentation has an underlying medical cause? Additionally, is any ostensibly necessary restraint in fact, placing someone at even greater risk?! This dilemma, from a case in 2012, is more apposite than ever as police and mental health services are currently waiting to hear how Government will define the future circumstances in which police custody may still be used as a PoS under the MHA. These questions more-or-less directly attend to the view offered by Mr Orchard’s family that if he’d been detained under the MHA and taken to somewhere set up for reception of those in crisis, he’d still be alive today. The Inquest will no doubt attend to those issues and all I am going to do here, is address them in terms of what has been said in the past in other, not-always-identical cases.
- Grounds for arrest / detention – it has always been my view that we cannot always guarantee police officers will identify someone is mentally unwell. HIstory shows us that psychiatrists can get this wrong, so it should be surprising if police officers do. That said, we have improved police training around mental health since this case, to reduce such instances where we can. I’ve professional experience of detaining many people who simply appear ‘angry’ upon first encounter only to have concluded by the time we get to the custody sergeant, that they are actually far more likely just to be ‘fearful’ – mainly of me. Understanding the difference between fear and anger is important, even if that realisation occurs slightly after the point where a detention decision has been made. Officers also have to make that call in light of how serious an offence may be – in this case, an alleged public order offence is quite a minor matter in the overall scheme. But other cases have shown officers must occasionally take these decisions where the distressed person has a knife but hasn’t hurt anyone – in some cases where they have. At what point should officers be arresting for alleged offences, irregardless of information about someone’s mental health problem, but ensuring that mental health support and assessment is an early and key part of detention after arrest? You may remember I highlighted two contrasting cases last year which were slightly more serious in terms of alleged offending.
- Removal to a suitable place – Mr Orchard’s family have made public representations about removal to a more suitable environment, presumably a safe mental health unit. So if the attending officers detained someone under s136 MHA and then follow the Devon Place of Safety policy, would this lead to the avoidance of police custody for those who are frightened and resistant? It’s not automatically clear that it would, unless officers were arguing the need for removal to an A&E department. It’s not clear that officers did think this was needed, because A&E remains an option directly following arrest and they didn’t take it. So what does all of that mean? Mr Orchard’s tragic case is far from being the first to raise the question “Where should police officers take mentally distressed people who exhibit challenging or resistant behaviour after detention / arrest?” In the cases of Sean Rigg, Leon Briggs, Michael Powell, Toni Speck, James Herbert and others, this same question arose. However, even the current Place of Safety policy for Devon Partnership Trust clearly envisages that some detainees (para 6.5) will be transferred to police custody because of ‘violence’. The policy doesn’t give us detail about this stuff so we can’t know for certain that Mr Orchard would have been excluded but it’s obviously possible. I won’t go in to further detail here, but suffice to say when a local 136 policy shows the author-signatories don’t know what ‘AMHP’ means (para 6.8), I tend not to hold out hope for its ability to address the kinds of questions Mr Orchard’s family might reasonably want answered. Had a draft of that document been shared by Devon and Cornwall Police with a request for advice, I would have stated it needs a lot more work before they should sign it.
- ‘Exceptional Circumstances’ – The Policing and Crime Act 2017 (PaCA) will shortly amend the Mental Health Act 1983 and will authorise Regulations (yet to be published) about those situations in which police custody may still be used. I watched with some disquiet the CCTV films that emerged during this trial or Mr Orchard being arrested in Exeter and then detained in custody, but having been involved in the process as the PaCA came in to being, it strikes me that even after the commencement of this law, cases such as Mr Orchard’s may not be materially affected in terms of where someone ends up after detention. Obviously, it was an option to just completely remove police custody as a Place of Safety under the Mental Health Act for all age groups. Indeed, one Peer did table this as a proposed amendment as the Bill made its way through the Lords, but it failed. The Government consultation document (December 2014) suggested that police custody for adults should still be an option for any “behaviour so extreme it cannot otherwise be safely managed.” Bear that definition in mind as you reflect on how the partnership trust may have considered paragraph 6.5 of their Place of Safety policy. If the statutory Regulations we will soon see contain something broadly similar, it would raise questions about whether future cases, similar to Mr Orchard’s, could in fact lead to removal to a healthcare setting. Indeed, will it make it more likely than before, if PoS services can cite these Regulations as a reason to refuse admittance?
- Emergency Mental Health – so for me, this is about a more fundamental change of approach. Since 2012, we’ve seen numerous documents emerge which lend weight to the points many of us have been making for years. Ongoing, high-intensity restraint of someone whose resistant behaviour does not reduce should be causing officers to think about under-lying medical causes. They need to be calling ambulances to the point of arrest, especially but not only where they have employed s136 MHA. We need to have greater consideration at the point of detention about Clinical needs: either because of suspected underlying mechanisms AND / OR because of the impact of high-intensity restraint. NHS England published a Patient Safety Alert in December 2015 about the need for medical monitoring after restraint: it’s not the kind of ‘observation’ that a police officer can do. We’ve also seen the publication of guidance from the Royal College of Emergency Medicine and the Faculty of Forensic and Legal Medicine about so-called ‘Acute Behavioural Disturbance‘ and NICE Guidelines about Violence and Aggression: short-term management in health, mental health and community settings (2015). We’ve also seen cases where the police have detained resistant and no doubt very fearful vulnerable people who have turned out to have conditions as varied as serotonin syndrome, meningitis and encephalitis. We can probably agree, this stuff is way above the pay grade of a junior police officer with a first-aid certificate and as Alison Orchard, Thoma’s mother, has made clear today: we need to create just a few seconds of pause in the minds of frontline officers to think ‘what if’ and to remember Thomas.
Whilst the criminal trial has occurred in Bristol, other proceedings are underway in south London for the inquest in to the death of Olaseni Lewis in 2010. Families are waiting years, only to feel, as Alison Orchard said today outside the Crown Court, “no sense of justice”. My own view is that the families are right to campaign for improvements to policing and I hope the work I’ve done has gone some way towards helping achieve that (I do know there is much more to do). That said, this is not just about policing: as few deaths in custody ever are. This is also about having the correct support infrastructure for officers to access emergency health or mental health pathways, even if it is just for assurances that people are not at risk if they do end up in police custody.
This is about police training, yes – recognition of mental health, understanding the impact of restraint, knowing to seek clinically signposting from paramedics, etc.; but it is also about Place of Safety services which operate to Royal College of Psychiatrists’ Standards on the use of section 136 (2011); it is about the availability and the willingness of ambulance and emergency medical services to support officers’ decision-making. Unfortunately, there have been several incidents where officers have made detentions in situations like this under s136 MHA nad still found themselves excluded from anywhere other than police custody and legal reform is protecting that likelihood going forward, despite argument to the contrary. There will still be lessons to learn here and more facts will emerge from ongoing processes, but as Lord Adebowle said in his 2013 report in to policing and mental health in London, “The police cannot do this alone.”
- BBC News
- An extended piece by Channel Four News (inc video).
- Guardian coverage
- Guardian article on the Orchard family’s perspective
- Devon and Cornwall Police Press Release
- Independent Police Complaints Commission press release
- Devon Partnership Trust s136 Policy (Nov ’15).
- Memorandum of Understanding on Restraint – contains all the medical guidelines referred to, above.
Winner of the Mind Digital Media Award.