Short post mainly for those ranking officers who have statutory roles to play under the revised Mental Health Act 1983 (MHA) provisions which focus on those rare occasions where custody is still used as a Place of Safety under the Act. This is just bringing together a few of the issues which have emerged during the few months since December. It might be worth the custody officers in particular saving this link to your desktops in custody: it is the Mental Health Act (Place of Safety) Regulations 2017, issued under the MHA.
The big thing to be wary of before we even get to ongoing supervision and care in custody which is something for both the duty inspector and the custody sergeant to think about: whether the presentation the detaining officers are describing has been sufficiently triaged by NHS staff to rule out the need for A&E assessment or treatment shortly after detention. It’s all very well those criteria in Regulation 2 being satisfied to allow the use of a police station, but what if that presentation is also consistent with a medical emergency that is somehow being slightly forgotten about whilst we think through whether or not the law allows us to do something and whilst we’re focussed on managing a more difficult restraint incident:
My general rule of thumb since the new law was set out for us has been and this is what I’d do if I were operational again tomorrow:
No-one goes to custody unless they’ve been seen by a member of NHS staff who is putting their professional registration to the decision that the person does not need A&E care. We know that ‘imminent risk of serious injury or death’ presentations will probably mean restraint of at least some kind has been applied not least because we’re also saying that ‘no place of safety in the force area’ can manage that presentation … well, history shows that could be ABD, meningitis, post-ictal psychosis, Addison’s disease, brain tumours, diabetes, etc.. No triage: no custody, in my opinion. No police officer in this country could confidently use their first-aid certificate to state there is not something potentially life-altering or life-threatening going on there. The emergency NHS is wheels have roles to play here and if not, I’d be removing people to A&E and then explaining why I wouldn’t have done so if only an ambulance had turned up.
Please don’t think that such debates and deliberations are hypothetical: these things have been key features in determining police officers’ liabilities during death in custody inquiries. I can think of three examples without trying hard.
So, let’s now assume that custody has been authorised after the inspector is satisfied of suitable triage. The person has been booked in by the custody officer and risk assessed and we’re now settled in to the rhythm of supervision until the s136 assessment is arranged or the person transferred elsewhere.
Three main things under the Regulations:
- Half-hour healthcare checks by a healthcare professional – this is in Regulation 4.
- Hourly reviews by the custody officer – this is in Regulation 5.
- Remove anyone from the police station if the original grounds under Regulation 2 for holding them there no longer to apply – this is in Regulation 5.
- First big issue: there MUST be half-hour healthcare checks by a healthcare professional whilst someone is detained in police custody and if this is not possible, or ceases to be possible, the person must be removed from there and taken elsewhere. Again, it is a legal obligation.
- Second big issue: police custody, even where it is properly authorised against the criteria can only be used for as long as those criteria remain valid. If someone’s presentation alters to a point where the inspector could not have authorised custody to be used, the person must be removed from there and taken elsewhere. This is not an option: it is a legal obligation.
- Third big issue: no extension to the 24hrs of detention may be given in a police station unless the superintendent gives it in addition to the doctor who forms part of the assessment. The superintendent is not obliged to agree with the doctor and must form their own view that the criteria under s136B are met and this means there has been a delay in convening the assessment because of the condition of the person. A lack of doctors, AMHPs or beds is no basis for an extension.
So, this is your handy checklist, if you like —
- Get the healthcare of the person checked (as you will have done every half-hour since their arrival in custody) and discuss the matter with the nurse or doctor concerned.
- Ask the healthcare professional: “is this person medically fit to remain in police custody, having given due consideration to Code C of the PACE Codes of Practice, particularly to paragraph 9.5 and Annex of that Code?”
- Ask the healthcare professional: “Does this person require assessment or treatment in A&E for any medical reason?” – you’ll need a confident “No” to that to go any further!
- Conduct your own review of them – this is required hourly and you’re reviewing the inspector’s original grounds for authorising a police station under Regulation 2. Note: the custody officer reviews this, not the duty inspector and this is not a PACE duty, so the custody officer’s decision is final and not subject to review under s39 PACE.
- Ask yourself: are the original reasons for requiring the use of police custody still valid? – if so, continue; if not, you must transfer the person to another Place of Safety.
This is all subject to one caveat in terms of an obligation to remove because of inability to comply with Regulation 4 or because a review under Regulation 5 determines the original grounds are no longer met: the removal to the other location should not occur if arrangements to have them assessed under the MHA have already been made and transfer would unnecessarily delay this or cause the person significant distress. This is Regulation 7.
- Other Notes of Potential Interest –
- The Code of Practice to the MHA (Chapter 16 in England, 2015; and Wales, 2016) states that transfer to another place of safety must be authorised by a doctor or an AMHP; however, a statutory Regulation outranks a Code of Practice so where no authorisation is possible, officers should proceed to remove the person in accordance with this framework.
- The Code of Practice also states that officers should ensure that a subsequent Place of Safety has confirmed they will be able to receive the person before they are moved; again, Regulations ordering removal outrank the Code and if no confirmation can be secured, it may be necessary to remove the person to A&E or to “any other suitable place” as defined by s136(7).
For more detail on the 2017 amendments to the MHA, including on the topics covered in this post, see a series of posts on the various changes.
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