I recently passed a professional and personal milestone, having joined the police service twenty years ago and I hope to receive an email soon outlining I’ve qualified for a Long Service, Good Conduct medal. All things being as they were supposed to be, this would mean I’ve got just ten years left to do before I retire from the service but it will probably end up being about eleven and a half because of pension changes forced upon me and I’ve long since started questioning whether we’ll actually get to the position I want us to be in by the time I do retire. So this post just puts those thoughts down and I’ll look again in a decade as I start to wrap this all up and get on with what’s left of my life.
I started properly piling in to policing and mental health about fifteen years ago, when a Chief Superintendent in West Midlands Police was seeking officers from Birmingham who were interested in doing some extra work to improve policies and procedures across the city, following the merger of two mental health trusts. I’d been questioning things informally, started studying things and wondering about the inherent madness of it all from the moment I hit the streets in 1998, but here was a chance, in 2003, to actually do something about it. The work continued in the aftermath of the death of Michael Powell, in September 2003, which saw the criminal prosecution of ten of my West Midlands Police colleagues. Their legal defence in their trial in 2006 was, essentially, that they did what they were trained to do and removed Mr Powell to the place which local policy said they should take him – police custody. It is certainly true that in 2003, there was no health-based Place of Safety in an NHS setting and we were very much losing the argument at the time that in some mental health emergencies, vulnerable people should be removed to healthcare settings. (In fairness, that argument still persists fifteen years later, with NHS trust writing to police forces telling them about the ‘exclusion criteria’ they will apply to any police decision following the use of s136 of the Mental Health Act, notwithstanding that the argument
Fast-forward those fifteen years and Birmingham and the West Midlands force area, are now in a position where no-one is removed to custody, regardless of how challenging their presentation may be. This is quite an achievement and I hope it’s at least some consolation to Mr Powell’s family to think that today, things would be handled differently. But we still have problems in areas of the country that can’t achieve this – and let’s be clear: the last data shows that only West Midlands Police and Merseyside Police achieved this. The other 41 police force areas were still relying on custody to at least some degree and it has been necessary for the Government to legislate in order to push progress in other areas. This lends verisimilitude to my own theory that some of this stuff is not going to get solved unless they NHS are obligated and unless those obligations are policed. It’s just a conclusion I’ve been unable to avoid drawing, over the years.
SO WHERE ARE WE NOW?
Over the last year, I’ve found myself being asked to undertake bits of work which I’ve not previously had to do: providing so-called ‘expert’ reports for various inquiries where the police have been called to a mental health emergency of one kind or another. Here are some other conclusions I’m unable to avoid drawing, from the sum total of this work –
- Regardless of organisational failings, police officers and the police will still be blamed when things go wrong – it seems to suit a narrative that we hear all over the world of police officers ‘killing’ vulnerable people; it doesn’t fit our ingrained narrative about the selfless NHS.
- Those who author operational protocols and policies between the NHS and the police often manage to publish policies that were either not legally checked or not properly legally checked. What is the point of legal checking and sign-off, if untrained cops can pick up the damned things and spot holes the size of cannonballs?!
- Accountability mechanisms don’t compare, for policing and for healthcare: for every death following police custody or contact there is an independent decision about the kind of scrutiny that is required and fully independent investigations are the norm. Even unexplained and unexpected deaths in the NHS don’t need reporting to the police! << Yes, really.
- We still haven’t worked out what we’re trying to establish when we investigate things where NHS and policing decisions, strategic and tactical, potentially contributed to an adverse outcome: is it about individual accountability, corporate accountability or something to do with a culture of learning? … or all of the above and more besides?!
Let me exemplify this, with my current, favourite example of all time, involving a death following police contact and custody that isn’t as high on the radar as some other cases, perhaps for an interesting reason –
Just prior to Christmas 2017, a Coroner’s Court in London returned a verdict in the inquest in to the death of Mr Joseph Phoung. Mr Phoung had been detained by the Metropolitan Police in 2016 under s136 after a report of a break-in near his home. Recognising he was a vulnerable man, they detained him and called for an ambulance – this is a requirement of the Code of Practice to the MHA, a feature of the Metropolitan Police’s policy on mental health and something which is supported as appropriate by the pan-London commissioning standards on s136 in the capital. The London Ambulance Service were unable to resource this request and no ambulance arrived before officers felt it was necessary to make their own attempts to remove Mr Phoung to a place of safety.
Having removed him to the local health-based place of safety, they were turned away and efforts to find somewhere suitable in neighbouring areas also failed, even though they had space available. So the mental health system across a quarter of the capital was unable to provide a small, ligature-proof room in which Mr Phoung could be reassured and kept safe for a few hours. Officers removed him to A&E as an alternative setting – of course, this wasn’t ideal, but the Code of Practice to the MHA (paragraph 16.38) outlines they should try alternatives before settling on a police station as a last resort. After a difficult time in A&E during which Mr Phoung exhibited some very challenging behaviour and assaulted a police officer, he was removed to police custody. A long delay occurred before he could be formally assessed and having been deemed to need admission to hospital, a longer wait ensued before a bed could be identified. There were problems with every single stage of attempts by the police to secure NHS support for this vulnerable man.
Approximately 24hrs after he was detained, Mr Phuong was admitted to an NHS hospital under s2 MHA. Officers left him there, in the care of NHS staff and a few hours later, NHS staff restrained him, forced him to received medication and secluded him on the ward. A further two hours later, Joseph collapsed and was rushed to A&E where he died shortly afterwards. And what was the first sentence in the Guardian the following week? – “The sister of a man with schizophrenia who died in police custody in south London …”. It assumes of all which preceded Mr Phuong’s tragic death, it was detention by the police that mattered most. We know this isn’t true as most of the criticism in the jury’s verdict was reserved for the NHS, but in public perception terms, this is just another vulnerable man from an ethnic minority community who died because of the police and haven’t we all heard that before?! … slow hand clap.
You’ll notice if you click the link for this article and read it now, the Guardian altered the wording, changing ‘in’ to ‘following’. I screenshot the original article at the time and I’ve used it as the header image for this post, for comparison purposes. The Coroner did consider the actions of the police in examining Mr Phuong’s death, of course she must; however, the immediately preceding actions involving NHS restraint, medication and seclusion, which was at least as relevant go almost entirely unmentioned in the first few paragraphs of the piece. We don’t like to think of vulnerable people being restrained in hospitals and drying there, do we? But we do know such actions can be problematic, too – it’s not only twenty years since I joined the police; it’s also twenty years since the NHS restraint of Rocky Bennett, which led to an independent review of mental healthcare practices involving restraint.
The Rocky Bennett report was, to an extent, the ‘Stephen Lawrence’ report for mental health services, as it touched upon the issue of institutional racism in mental health care, something which is still a hot topic today and being examined by Professor Sir Simon Wessely as part of his review of the Mental Health Act 1983.
SO WHERE ARE WE HEADED?
I find it really hard to avoid this awful conclusion: we are unable to focus on the actual problems at the centre of some of these matters. The Angiolini Report (2017), highlighted to us all, again – as if it should need saying, again – that any attempt to look at problems in policing after serious, untoward outcomes cannot be done with confidence and credibility unless we also look at the context in which policing occurs – it doesn’t occur in a partnership vacuum and it doesn’t occur where we only detain distressed people who are physically well, uninfluenced by drugs or alcohol and who are not so frightened and unwell that they think officers are a direct threat to them. One of the Coroner’s cases I’ve had to give evidence in was a concern or question about policing under-action, rather than over-reaction: it still gives rise to questions about whether junior cops should be accountable for things they were potentially powerless to prevent – “damned if you do, damned if you don’t”, as the cliche goes.
Early next month, I have to give evidence at an inquest in to the death of a man who was detained under s136 of the Mental Health Act, following a request by the ambulance service for support at a mental health emergency. I was requested by HM Coroner to prepare a report which necessitated me examining the joint operating policy between the local MH trust and the local police force – the sort of thing I have done many times in the past for other death in custody cases; and I’ve been asked by forces who are thankfully not reacting to adverse events to help them check or update their local policy. Almost invariably, we find problems: and they are not secret problems people couldn’t be expected to know about – they are problems which were dealt with in the 2010 guidance from the NPIA (the College of Policing’s predecessor organisation) and again in the 2016 updated guidance from the College which was produced as part of the Crisis Care Concordat.
Deborah Coles, the CEO of Inquest, has made the point again and again and mentioned this when I was interviewed for the Angiolini Report: the lessons we see emerging from recent cases, only some of which are mentioned above, are largely the same lessons we learned after the death of Roger Sylvester which occurred in 1999 – the previous century! And the big lesson, in my own opinion, is this: as long as we keep over-focussing on policing, we miss the obvious learning point that emerged from the death of Michael Powell and many others.
This is not just about policing – this is also about healthcare.
STRATEGIC PARTNERSHIP WORKING
Let me be really clear, in case of any doubt about this whatsoever: I don’t put this argument to deflect attention away from policing – not for one moment. In various cases we could list, the police have got things badly wrong. But we must remember the Angiolini Report made 110 individual recommendations and when we set-aside those which related to improving investigations, procedures and transparency after tragic events have occurred, we find that the police service could not – on its own – deliver on the majority of them. This is not just my opinion, either – Lord Adebowale wrote in his 2013 report in to policing and mental health in London that the Metropolitan Police “cannot do this on their own” and his recommendations were not mainly about the police, but the strategic partnerships and support the police will require right across the health and social care systems.
So, if it will take a combined effort of policing services and healthcare services working together to ensure that the ‘right’ options are available for operational police officers and healthcare staff, what will it take to ensure that the lessons of history are learned in both policing and healthcare?! A feature of various IPCC and Coronial investigations is that the officers’ general argument is that they were adhering to local policy in place at the time – so what does this tell CCG commissioners across mental health, ambulance and emergency healthcare pathways? – do they even know the names I’ve listed in this post and perhaps, more importantly, the more recent names that I could have given?! Does a CCG commissioner in the north of England see any relevance for them where a death in police custody occurred in the south of England four or five years ago?! As long as we keep seeing inquiries, inquests or investigations which reveal problems in how the healthcare systems are set up to support urgent decision-making about the welfare of vulnerable people, we risk seeing more police officers trying to defend themselves by arguing they were selecting from inadequate options that risked setting them up to fail. “Damned if you do, damned if you don’t” because they’re obliged to choose between breaching national guidelines and breaching local guidelines – how do you choose which breach you’d rather try to defend, especially when you know you’ll face resistance in your real world if you go against locally agreed procedures?!
In November, shortly after Leon Briggs died in custody in Bedfordshire, I wrote a blog – and it warned “another death in police custody or following contact could happen tomorrow in any area where procedure is not built to mitigate against unlikely but highly significant risk.” And it did, didn’t it? – Terry Smith died in Surrey eight days after Mr Briggs died in Bedfordshire – we’ll learn much more about these two cases and others like Thomas Orchard during 2018/19 which will probably see me writing more posts which simply hark back towards what we already know to be necessary. Why weren’t these issues addressed after the national guidance to the police in 2010 or after the Crisis Care Concordat in 2014? … and if partnership issues were not addressed at those points, why should we imagine they will be addressed after the Angiolini Report in 2017?! It’s hard to avoid a conclusion that we seem to have agreed we’re simply not going to sort this and I’m struggling to wonder why not because it seems eminently sortable. My best guess is because for all the talk about ever greater accountability, it’s accountability that focusses on frontline police and not on strategic leaders across both policing and health and all our accountability mechanisms (the IOPC, CQC, HMIC, HCIB) don’t fully cooperate to ensure the necessary joint up working. And if we have solicitors signing off joint operating policies that get the law wrong, what chance do front line cops and vulnerable people really stand or consistently surviving contact with legally complicated medical emergencies? You can decide for yourself whether it’s “little” or “none”.
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