This blog is part of the series which will cover, in detail, the amendments to the Mental Health Act 1983 within the Policing and Crime Act 2017. This post is one of several which relates not the amendments themselves, but to the implications arising from them.
For background to the series, see the introductory post which outlines why I’m doing this and what other specific issues will be covered concerning laws that will come in to effect in the next few months. Current Home Office estimations of timescales suggest late November / early December – but this is subject to a number of factors and may change.
The Mental Health Act (Police Stations as a Place of Safety) Regulations 2017 have been much awaited. (Also see the UK Government guidance document.) The Regs will now be much debated, I suspect, because we now know how the Government are framing the future use of police custody as a Place of Safety. Starting at the very beginning, for those who are not sure, statutory Regulations, issued by a Secretary of State under authority from an Act of Parliament are ‘the law’ in just the same way as the Mental Health Act is the law. It has the same force, but the matters within can be changed or updated much more easily, as the Secretary of State sees fit. My best guess is: the degree of restriction on the use of a police station and the caveats which must apply to its use to ensure safety and wellbeing, will be a surprise to some NHS staff and will cause the need for an quick-time assessment of preparedness. I’ve already had conversations with some forces who have read the Regulations and feel they will never, be able to lawfully rely upon a police station because of their inability to meet the caveats without NHS support which they suspect will not be forthcoming because of the resource implications for mental health or ambulance services.
Good luck with that!
Three criteria must exist in order to allow police stations to be used: NB, this is about police stations as a whole, not just police custody areas –
- The detaining offfier must reasonably consider that the behaviour of the person poses an imminent risk of serious injury or death, either to themselves or another person
- The officer must believe that no Place of Safety in the police force area could safely manage that risk; AND
- Reliance upon the police station must be authorised by an officer at the rank of inspector, unless the detaining officer is already of that rank, in which case no further authorisation is required.
Once the person arrives in police custody, there are then several things to bear in mind –
- Use of police custody is still subject to the custody officer’s normal set of considerations in terms of authorising detention.
- It is the custody officer’s legal decision to detain further and if the inspector who authorised use of the police station disagrees with any decision by the sergeant, PACE states this must be referred to an officer at the rank of superintendent.
- Once detained, the custody officer must ensure several things happen —
- A check by a healthcare professional every thirty minutes.
- Wherever possible, there should be a constant healthcare presence throughout the duration that person is detained.
- If the original grounds for using the police station cease to apply, the person must be transferred elsewhere.
- If the custody sergeant is not able to ensure the relevant frequency of health checks, the person must be transferred elsewhere.
CALLING ALL POLICE INSPECTORS
As you might imagine, I have several thoughts about all of the above! Firstly, and speaking as a police officer who is at the very rank expected to authorise use of a police station: I simply can not imagine a single scenario where I would ever do so. I would caution all inspectors to get their heads around this, because that crucial decision will be one that is crawled over by the IPCC or a Coroner if things go awry. It was the decision to take someone to custody and not to hospital that contributed to the reaction and consequences arising from deaths in custody case over the last fifteen years. Most usually, a police inspector will not be at the scene of an incident where s136 is used – so you can imagine this all being done by phone or police radio discussion and the officer shouts up, “Boss, can we take this guy to custody please?” Maybe they just think the grounds are met, maybe they’ve been advised to do so as part of the pre-detention consultation or perhaps they’ve taken the person to a health-based place of safety or A&E and been declined entry, for whatever reason. I can imagine me saying something like, “Tell me why I should authorise it – have you called an ambulance to this incident; and what else have you done or considered before asking me for this?!”
If no ambulance has been called, I’m going to want that tried unless there is good reason not to do so. That will probably have to be that the person needs urgent assessment or treatment by an Emergency Department and it would be quicker to crack on getting him there, than wait for an ambulance. (That happened in the Rafael Delezuch case, in Leicester – fully supported by the IPCC as a sound decision.) I’d also be asking about how this person is presenting – the officer would need to be able to quickly describe how this person is presenting to justify the “imminent risk of serious injury or death to. themselves or another” thing. Without that, use of a police station would be unlawful and inappropriate. So it immediately means, that if officers have been told or assumed that consumption of alcohol prohibits access to an NHS location, the decision MUST be that use of the police station is not authorised, because it can’t be in those circumstances. I’d be dispatching a sergeant to the job to discuss that with the NHS face-to-face.
Finally on this point, there is the whole thing about the risk of an adverse event: anyone who is posing such an imminent risk is probably going to be subject to at least some form of restraint, which raises the risk. If the incident involves a particularly ‘high-intensity’ restraint, then fears should step up again. I’d be thinking about making sure the detaining officer had enough colleagues to quickly and speedily transfer the person to whichever healthcare building the paramedics thought appropriate; and if no paramedic was on scene, it would be ED, for my money. I’d then head down there to discuss and would be telling the officers I’m not authorising use of a police station until someone with the letters ‘N,H and S’ on their ID badge has considered the relevance of applicability of NICE Guidelines, ABD Guidelines and the patient safety alert from NHS England (December, 2015). If all of that has happened as well still have an ‘imminent risk’ situation, then and only then would I consider authorising use of a police station, and only where there is that constant healthcare monitoring.
DETENTION IN CUSTODY
Secondly, phrased in the way they are, some forces will be simply unable to comply with these Regulations or use police stations, ever. They do not have a constant healthcare presence in any of the custody areas and cannot guarantee thirty-minute checks under their existing healthcare arrangements. Of course, if NHS partners were willing to provide a healthcare professional to undertake this function, then they could use the police station, but that would be subject to their agreement on a case by case basis. How many MH trusts will be able to supply a nurse within 30 minutes for the duration of a 24hrs detention; will the ambulance service be willing to leave a paramedic in custody; is there an NHS liaison and diversion service in custody for at least some part of the day whereby this could be achieved? All local discussions to be had, but without those thirty-minute checks: the custody officer is obliged to transfer the person elsewhere.
What is also interesting about the Regulations is that they are focussed on police stations, not just custody, but they repeatedly refer to the [custody sergeant or custody officer] which is a position only relevant in police custody. What happens in the rest of the station is a matter for the officer in charge of it. So the ability to ensure the thirty minute checks will determine whether a particular police station can act as a Place of Safety, and not all (PACE) designated custody areas will be able to do so. Thinking of my own force area when I first joined, we had 22 small, local custody areas, some with just 6-8 cells, others with 16-18 and one large one in central Birmingham with 40-odd. Over the years, the force has restructured to having three very large ‘super-blocks’ of 50-60 cells and each of those has 24/7 nursing or healthcare support. However, we still operate some of the smaller custody areas and they do not have 24/7 healthcare.
My best guess is that West Midlands Police will have to say if anyone requires detention in a police station under the MHA, it must be one of the ‘super-blocks’, because they can deliver on the Regulations, smaller custody areas could not. All hypothetical for us, in fairness: custody wasn’t used once last year! Whilst this is a boast, because I worked for so long on getting people out of custody that this achievement (from the continued hard work of others in the force since I’ve moved to the College of Policing) is one the things I’m most proud of. But I also mention it for another reason: to show that a large, demanding, urban area can achieve what some think is literally impossible if they have the will to do it and they build the partnerships to match. If Birmingham and West Midlands can do this: anywhere can (and should). I hope the Regulations contribute to forcing this issue in areas that have just written it off as impossible – it demonstrably isn’t!
MONITORING IN CUSTODY
The healthcare checks that are required, must occur every thirty minutes – the Regs don’t seem to mind whether this is done by a doctor, nurse or paramedic, etc.. An AMHP would not be able to do this, unless they were also a registered nurse – most AMHPs are mental health social workers, and not healthcare professionals for the purposes of these Regulations. In addition, the custody sergeant must undertake an hourly check of the detainee in the normal way and is at liberty to impose a regime of enhanced observations, as they see necessary nad influenced by healthcare advice. This could mean, 1-to-1 obs by a police officer; or even 2-to-1 obs, if necessary – all supplemented by those healthcare checks.
The Regulations do allow for this one-hourly check to be relaxed on healthcare advice, to three hourly checks if the person is sleeping. I’d also like to sound another alarm-bell here: if someone came in to custody because of the ‘imminent risk’ criteria and the person is now sleeping, it’s doubtful that the criteria still apply and the person should be transferred, as per Regulation [X]. It is also something to be wary of, medically speaking – is the person who is now lying on the floor actually asleep, or are they unconscious or worse?! Doctors I have discussed this with have said they would have elevated their level of concern about someone who was so agitated they met the criteria for removal to a police station who was then at the other end of hte behavioural spectrum, by appearing to have gone to sleep.
My own view, having read over many of the cases where people have died in custody, is you can’t over-monitor someone’s health whilst they’re detained; we’ve been found wanting by having under-monitored some people and that this has been used as the basis for the criminal prosecution of police officers in some examples. I would want forces to be really careful about any decision to bring someone to custody so agitated, especially where restraint has been involved and the higher the level of distress, fear and agitatedion, the higher the intensity of restraint, the older the person, the heavier the person and so on, the more alarm bells should be ringing about ensuring appropriate clinical screening of need before we ask the custody officer to authorise detention. And having been that custody officer: I’d be thinking very carefully about authorising it unless I was happy with everything that had gone before, that the health service had become involved and that this was the last resort.
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