Accountable to the Law, not the NHS

On 12th November 2013, I wrote a blog entitled ‘Here We Go Again‘, following the death of a vulnerable man in Bedfordshire who we now know was called Leon Briggs. His death is subject of an ongoing criminal inquiry, more than four and half years later and that means, regardless of what happens criminally, there is still a potential disciplinary process to come, certainly followed by a Coronial hearing to establish all the issues around Mr Briggs’s unexplained and unexpected death on 4th November 2013. The full circumstances around that incident are yet to emerge and be tested and my best guess is, the legal process for that will run well in to 2019, if not the next decade.

But on 12th November 2013, I sat down in the evening to write that very general post, trying again to point out to police officers the various factors that can combine together to create conditions in which a death in police custody is more like than otherwise. The idea was to sound a reminder alarm through social media and that might prick officers’ attention. Little could I have possibly known, that on that very evening, Terry Smith came in to contact with Surrey Police and died after being detained under s136 of the Mental Health Act, restrained and removed by police vehicle to police custody. This is very broadly what we already know from news reports happened to Mr Briggs. Having written that post, it shocked me to think, only a few days later when learning of the incident in Surrey, that I’d written this so confidently –

“Let us be clear about this, yet again — another death in police custody or following contact could happen tomorrow in any area where the procedure followed by the police is not built to mitigate against unlikely but highly significant risks.  Some police forces work in areas where their MH trusts work very closely in developing proper procedures, other police forces don’t.  But the duty of care owed by every officer and by every police force, is the same irrespective of where in the country they are.”

– MentalHealthCop Blog, 12th November 2013.

And it did happen again, didn’t it? – not ‘tomorrow’, but that very evening! As I wrote the prediction it was busy happening. The death of Terry Smith, we now know, was contributed to by the neglect of Surrey Police after prolonged and excessive restraint and a serious failure in the duty of care owed. This is very sobering judgment to take in and it needs to be taken seriously by every police force in the country: without taking anything away from that verdict, it is also about a few other things that were discussed in the inquest itself that I want to highlight.


The most tragic thing of all, is that the deaths of Terry Smith and Leon Briggs echoed other cases: Thomas Orchard died in Devon and Cornwall custody in October 2012; Toni Speck in North Yorkshire police custody in July 2011; James Herbert died in Avon and Somerset custody in June 2010; Sean Rigg died in Metropolitan Police custody in August 2008 and Michael Powell in West Midlands in 2003. Not all of these cases were legal detentions under the Mental Health Act, but they were detentions of people known or thought to be suffering mental health problems, who were then resistant to detention (probably due to fear rather than anger) and removed by a police vehicle to police custody.

And it’s an obvious point: the decision a police officer about which law they will rely upon to justify their intervention is in no way, shape or form related to the clinical needs of someone detained or how those needs are exacerbated by any restraint applied. The charity Inquest who support the families of those who die in the care of the state have repeatedly said that the accusation of which the police stand accused is not failing to learn lessons, but of repeatedly failing to learn repeated lessons – and here we go again. Since the deaths referred to so far, we have since seen others which are still at the early stages of being investigated.

In December 2017, the law on s136 changed around the use of police custody: Regulations were introduced which now define the ‘exceptional circumstances that we’ve seen police, mental health and emergency departments as well as ambulance services arguing over for so many years. And on one viewpoint, they don’t help! – the regulations state that only people who pose “an imminent risk of serious injury of death to themselves or another” may be removed to custody; and only where no NHS facility can manage that risk and when authorised by an inspector. Which inspector in their right mind is going to authorise the use of a police station for someone “at imminent risk or serious injury or death” because of a suspected mental illness?!

Hopefully none – ever! … but guess what?!

I’m wrong about that. It still happens.


It is a matter of public record that I gave evidence at the Inquest for Terry Smith, having written a report for the Coroner who had requested a non-Surrey police expert view of the various issues. So I’ve read the various statements and other documents. There’s nothing I need to say here that you can’t glean for yourselves by reading a few things:

  • Inquest has produced a press release, including a statement from Terry’s family, which is heart wrenching to read.
  • Surrey Police has publicly responded to the verdict on their own website.
  • There is also a useful four-minute video piece from Channel Four which includes an interview with Terry’s father, Leslie.

There has been little mention of the local s136 protocol in the coverage: although I faced questions about this for almost half of the time that I gave evidence, several barristers, including the family barrister focussing upon it. The joint operating protocol that was in existence between Surrey and Borders Partnership Trust and Surrey (and Hampshire) Police in November 2013 was, in my own professional opinion, awful. And I said so in court – had Surrey Police sent a final draft copy to me for an opinion, I would have advised against signing it because it was legally, clinically and procedurally deficient – in my view. I admit to being surprised that it got through Governance in an NHS trust, not least because it managed to get the Mental Health Act wrong (on a legal point unrelated to the inquest, but suggestive of a casual level of checking).

Secondly, there is the issue about national guidance in policing, versus local policy: obviously no police should ever really have to ask themselves “In my handling of this case, should I comply with local or national guidance, given that they’re do not say the same thing?” Police forces need to ensure their procedures are compliant with national standards on s136, the Code of Practice and all the lessons which need to be learned again from cases like Terry’s.


So let me be completely clear about my position now that we’re in July 2018: this could happen again tomorrow because the learning is usually just done by the force affected. One can imagine Surrey Police will have had a Gold Group running on this matter and it will continue to meet to handle the fallout from the verdict. I already know that Surrey have made strides in their approach since 2013 and continue to do so – but I went on the internet an hour ago and the joint protocol on s136 between the police and the MH trust still talks about people who are ‘violent or unmanageably disruptive’ or where they are suspected to have consumed drugs or alcohol or been subject to CS spray being taken to custody. << Some of this stuff has no basis in law at all! It’s almost as if Terry didn’t die in custody at all.

Despite the law being changed last December on the use of custody, I’ve had passing conversations with middle ranking officers who head up custody for forces who have remarked about the changes, things like, “We’ve only had a few coming through, but I’m satisfied that was right because they were really violent.” But were they violent or frightened? – and on whose judgement?! If no-one has given consideration to the fact that a ‘violent’ or agitated presentation can be attributable to any number of serious medical maladies, how do we know this person is safe and fit to be detained?

It was only very recently that I got to hear again from Dr Tony Bleetman, an emergency department consultant and from Rob Cole, consultant paramedic from West Midlands Ambulance Service. The three of us present on an Advanced Paramedic Master’s course at Warwick on policing, mental health and ABD. I was sitting there again listening to Tony list the very serious medical conditions that can threaten life that are often associated with symptoms that could be ABD and just reminding myself afresh: no police officer, anywhere, is going to be able to sort this or make the clinical judgements. You need to get ABD candidates to ED, allow for rapid triage and then potentially quite severe clinical management. What that looks like is up to ED and if the do wish to turn you away, don’t move, escalate to your and their supervisors, expressing your concerns in the strongest terms. Let the bosses row it out and don’t back down from asserting this is a medical emergency until formally declared otherwise. And that person’s name goes in the record!


As with all NHS or healthcare professional opinion offered in the context of your legal duties should be considered as ‘intelligence’. It may need further developing or corroboration, it may be as sound as a pound. Forces obviously carry a huge responsibility here to ensure that whatever local procedures they are signing up to, are checked. I don’t know whether Surrey Police legal services signed off the s136 protocol that got the MHA wrong, but I’m hoping they didn’t, because by missing that very basic legal error, it would cast doubt on what else they may have missed.

We know today, that some NHS organisations still dispute and argue about the term ‘acute behavioural disturbance’ and ‘excited delirium’. No – those terms are NOT in the medical manuals classifying mental disorder – manuals like ICD-10 from the World Health Organisation; and DSM5 from the American Psychiatric Association. That said, there are a number of legal rulings, of which Terry Smith’s is just the latest, where Coroner’s, having heard medical evidence including the disputes, have ruled caused death. Add to that three documents all duty supervisors need to know about if we must police alongside organisations who may not provide care in a way that complements the legal reality of our work –

All of these publications have come out since various deaths mentioned here and represent serious authority for the proposition that ABD is a thing or a cluster of things that amount to a life-threatening medical emergency. I know, because I’ve tested this theory, that not all ambulance service or ED staff know about these documents. You may have to explain it to them.


Following use of s136 MHA where someone is presenting challenging behaviour, probably because they’re already half frightened to death by an experience that even before the police has turned up has got them in a compromised medical state, you do this and you do it every, single time regardless of advice to the contrary –

  • Arrest – make your ‘arrest’ under s136 (or your re-detention under s18 or anything that commences a detention of a person thought to be mentally ill.
  • Ambulance – call an ambulance every single time. Whether they come and how quickly is up to them, you then make your conveyance decision based on their response.
  • Assessment – make an assessment of any critical conditions, sometimes known as ‘RED FLAGS’ which may require ED care before anything else: this will include ABD or anything involving highly agitated, challenging behaviour, especially where prolonged or where restraint is required and ongoing.
  • RED FLAG = ED – remove anyone presenting with a ‘RED FLAG’ to the nearest Emergency Department, preferably by ambulance but if they can’t or won’t play: do it yourself ASAP.
  • NO FLAGS = MH – remove anyone not presenting a ‘RED FLAG’ to the identified Place of Safety for MHA detentions in your area.
  • Escalate – to your sergeant or inspector if you experienced any problems in proceeding through those five steps. Let the bosses take up the dispute and you focus on de-escalating, restraint reduction and the person you’re caring for.

Therefore, if I may end with something of a rallying cry: I couldn’t give a toss what a particular ambulance service or any Emergency Department thinks about the concept of ABD; what they do or don’t recognise as a medical term or whether they believe they are a place of safety under the Mental Health Act. They don’t have to be legally accountable for your decisions and it’s easy to deflect officers with limited training in other directions. People have died because these debates and individual professionals’ or organisations’ opinions have been allowed to influence local policies away from national standards; creating an entirely unjustifiable ambiguity about what is required. In actual fact, this stuff has been crystal clear since the NPIA guidance on mental health in 2010 which made it clear that ABD or excited delirium was a medical emergency and it should be remembered: that guidance document was overtly badged and supported by the Department of Health – it wasn’t just police guidance, it was formally declared consistent with DH guidance and I personally flogged around the country in late 2010/2011 running seminars for all police forces on those new guidelines and they have only since been strengthened in College of Policing APP, partly because of the obvious immediate learning from these cases and because of those three clinical documents, above.

We have no absolutely excuse – and this is will happen again if only Surrey Police learn from this. We all need to learn from this and that doesn’t just mean the police.

This is at least partly about why NHS organisations write and put forward policies which contradict their own national standards. I’m afraid this is widespread, having seen meetings where I’ve watched some NHS managers scream down senior police officers for daring to suggest that we need to remember the whatever we do: it must comply with the law.  Remember the narrative we normally hear on the news whenever they’re describing initiatives like street triage or liaison and diversion is “Here are the highly trained experts to help the [poorly trained] officers”.  I’ve never been sure how it ‘helps’ when local NHS preference or practice deviates from national clinical and legal standards.  Irrespective, the final point is this –

As police officers we are accountable to the law, not to the NHS.

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 –