Well, it’s all now official: the Mental Health Act 1983 will be amended by the provisions in the Policing and Crime Act 2017 with effect from midnight on 11th December 2017. The regulations were laid in Parliament today for a) commencement of the change; and b) the use of Police Stations as a Place of Safety and we can now stare straight down the barrel of what we know has been coming for around three years.
The big surprise in these developments has been the extent to which it will become very difficult to use police custody as a Place of Safety, at all. We knew the amendments would ban such use for children, but we always understood that police stations could continue to be used for adults in exceptional circumstances. Whilst there were various hints in the consultation document from 2014 and various other clues during the informal discussions which occurred between the Home Office and the NPCC / College of Policing, we obviously couldn’t be certain of anything until such time as the Regulations were published – and that happened today.
We now know it will be a strict requirement whilst police stations are being used for this purpose that detainees’ health is checked by a healthcare professional every half-hour and necessary advice given to custody staff to enable them to ensure the health and wellbeing of the person. This is the amendment which seems to have caused the most shock whilst discussion occurred but I want to be absolutely clear about what I think on this: I wouldn’t want it any other way and I don’t actually think it’s strict enough. Since you’re now wondering, I would have preferred to see a total ban on the use of custody as a Place of Safety and that if there were to be any circumstances in which it occurred, it would be with a constant healthcare presence 1-to-1 for that detainee.
HIGH RISK DETAINEES
We saw on Monday, publication of the Independent Report into Deaths and Serious Injuries in Police custody (the Angiolini Report) – 110 recommendations to make the world a better place and amongst them was recommendation number 25 which calls for an end to the use of police custody as a Place of Safety. My understanding of the reason why this wasn’t done during the Policing and Crime Act amendments is the ongoing belief that it may still be necessary to hold some people in police custody because they are exhibiting such a serious level of resistance or aggression that an NHS facility would be unable to ensure the safety of staff or other patients; and that the physical infrastructure is not built to police or prison cell standards. In fairness, I’m aware of a few cases where NHS facilities have been damaged by people who were unwell and frightened whilst detained pending assessment – so, does this mean we should be using custody or improving healthcare infrastructure?!
The statutory regulations published today outline the criteria for removal to a police station as a Place of Safety and I published a specific post on that earlier. In case of any doubt at all, for someone to meet these criteria they have to be posing a massive risk – serious injury or death – to themselves or other people. Even then, a police inspector would have to authorise a police station to be used and foremost in that officer’s mind should be the safety of the person. You only need to look to the recent IPCC Report Six Missed Chances or to yesterday’s Angiolini Report to see how the police are repeatedly implored, quite rightly, to encourage to adopt a ‘safety first’ approach to those they detain.
If someone is so unwell because of mental disorder that an officer has intervened by detaining them, there will be at least some level of restraint ongoing and where we start to think that the person’s behaviour could pose “an imminent risk of serious injury or death” we need to be asking proper questions about what might be driving this. We don’t need certainty on it – we need suspicion about what might be driving someone to appear so unwell and pose such risks. We only need to look at history to see various potential reasons: head injuries, encephalitis, acute behavioural disorder, serotonin syndrome, meningitis, strokes, epilepsy and I could go on and on … and, of course, someone could just be so seriously mentally ill that they are quite unable to escape the beliefs, their voices they’re experiencing and detention by anyone could be terrifying: so much so, we could just see a basic, human ‘fight or flight’ instinct kicking in, for reasons that don’t make obvious sense to those of us trying to keep that person safe, but which make perfect sense to the person detained.
Have you ever been responsible, legally and literally, for the safety of a psychotically unwell, extremely frightened person who is obviously seeing things and hearing things that are way beyond my realm of perception and who has been jailed up in a cell for days because of a lack of alternative options? I have – and I was absolutely bloody terrified, frankly. I started a night-shift a discovered there was a lady in our cells under s136 because the Place of Safety had refused to receive her. She was one of the most unwell people I’ve ever met in my life and looking at the custody record it was absolutely obvious that no-one had done basic medical checks despite the fact that she’d been detained under s136 MHA. Long story made short, I made it clear that unless someone could tell me that basic medical checks had been done on her, to rule out the need for her to be in A&E, she’d be transferred to A&E to ensure her welfare.
If we are serious about putting patient safety first, we can’t cry that it’s becoming all too difficult where people exhibit challenging behaviours. We wouldn’t do this with a violent person who’d struck their head on a windscreen in a car crash – I’ve even seen convicted drug dealers, who had their heads caved in with metal bars by rival drug dealers over debts and turf get care for their injuries when they were no more or less poorly than some of the people I’ve seen being pushed towards police custody when experiencing a psychiatric emergency. Parity of esteem, if it’s to mean anything at all, has to reach in to the difficult places, too. So if the Mental Health Act (Police Stations as a Place of Safety) Regulations 2017 are highlighting that the only people can should ever be detained in custody are those at most risk then it strikes me that a few considerations should always apply –
- We only do this where we have no other option at all!
- If we really are going to think about this(!), we maximise the clinical screening of the person before making a final decision.
- Once the person arrives there, we ensure close clinical oversight of them – to ensure they fit to be detained in police custody.
CONFLICTS OF LAWS
Remember, the use of police custody for any purpose is subject to a well-established body of laws – the Police and Criminal Evidence Act 1984 (PACE), plus the associated Codes of Practice to PACE, especially Code C on detention in custody. (If you’re a healthcare professional who is less familiar with this territory, I wrote a few small guides for a non-police audience.) Those frameworks already oblige the custody officer to have regard to someone’s medical welfare and it is already the case that where someone arrives in police custody, either under arrest for an offence or detained under the MHA via these new Regulations, the custody officer must decide whether the person requires clinical attention and they must either, call an Approved Healthcare Professional (a specific term for custody healthcare, and NOT the same thing as an AMHP); or they must call an ambulance or transfer the person to hospital. Depending on specifics, it is quite feasible that decisions (or preferences!) to use custody after detention hit up against the solid brick wall of a confident, knowledgeable custody sergeant who genuinely believes that PACE frameworks mean they must, in all conscience, transfer that person to hospital.
Here was my own personal reaction to the Regulations when I saw them in their final form, bearing in mind I’ve been the duty inspector who was involved in overseeing and directing the early decisions after someone is first detained; I’ve been that custody sergeant to whom the vulnerable were carried because (at that time) officers had nowhere else to go; and I’ve been the police constable detaining people under this Act and being nervous for days on end that the decisions I was forced to take through the want of properly established pathways weren’t going to backfire for reasons beyond my control and I’d find myself investigated (or worse) for manslaughter.
As a police inspector and bearing in mind what I’ve learned doing all the work I have on policing and mental health, I cannot think now of a single, solitary situation in which I would authorise removal directly to a police station from the point of arrest. I’d question the ability of any healthcare professional to tell me, in a street, during a restraint that someone presenting in the way the Regulations describe didn’t need careful screening in a medical setting, prior to it being considered ‘safe’ to proceed to custody and hold them in a small concrete room, healthcare checks or not! So, for me, if no paramedic has come to the scene when officers are thinking about these Regulations: to an Emergency Department we will go! Even if a paramedic attends, I’d have questions for them if they were saying it’s OK to go to custody with anyone who poses “an imminent risk of serious injury or death” to themselves or others. Same would apply to any suggestion in ED that someone should be taken to custody. It would be whether the professional’s judgement was maintaining nothing in these documents indicated the person needed to remain in that or any other kind of healthcare setting –
- NICE Guidelines (2015) – Violence and Aggression: Short-Term Management
- Royal College of Emergency Medicine – Guidelines on Acute Behavioural Disturbance
- Faculty of Forensic and Legal Medicine – ABD: guidelines on management in Police Custody.
- NHS England PSA (Dec ‘15) – vital signs during and after restrictive interventions / manual restraint.
There are some big words and complicated ideas in that lot – probably best that cops aren’t trying to disentangle this stuff and sort it out, until we know people are going to be safe. My thinking is unable to take me very much further than that, quite honestly, which may be my bad but you only need to pay attention to the news to see why.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All views 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