Those following on Twitter will know I’ve spent a working week over the last fortnight requalifying at public order order training – and it’s not quite over yet. I have to go back a week on Monday for my two-day assessment and do the bleep test this Tuesday so I’ll be up the lane later, practising again! It’s been an enjoyable period, to be honest and the stand out aspect of it is the emphasis on human rights law. If you’d paid attention to recent news and the Extinction Rebellion protests in London, you’d be forgiven for thinking that police officers and their commanders had little thought for such matters but this is largely media reporting, in my own view. Protestors screaming at journalists and activists with microphones “we have human rights” doesn’t mean the police are violating them by taking action against people who are committing offences, however peacefully and however apparently ‘minor’ they are argued to be. You’ll notice a lot of the debate opposing police action by arresting people was that this must be illegitimate because the protest was peaceful and the offences ‘minor’ – obstruction of the highway, for example.
Well, there’s a difference between obstructing a country lane at 4am which might inconvenience one or two cars and obstructing a bridge which grinds the centre of our capital city to a halt. And this distinction is an important, legal one: yes, people have a right to peaceful protest, don’t they?! … up to a point. But peaceful protest can be unlawfully peaceful and it can still be capable of causing the amount of serious disruption which justifies consideration of police powers to restrict protest under the Public Order Act 1986. Whatever right to peaceful protest may exist, it must by law be balanced against the fundamental rights of others. Fascinating stuff, isn’t it?!
Anyway, my point here isn’t to start a parallel blog on public order policing, despite it have always been my second favourite professional specialism and something I could quite happily spend my professional life doing. I’m looking forward to nailing that bleep test – my first one for over twenty years! – and then nailing my assessments a week on Monday. By then, I’ll also have completed my other mandatory courses and will be fully up to date and deployable as an operational or public order inspector. The point here is to reflect on the emphasis that training has just placed on human rights and the law and reflect back on what policing and mental health might look like if we did the same. I hope regular readers of this blog will agree that I’ve made this argument before and woven it in to various posts I’ve done about how we undertake threat and risk assessments about interventions; and how we deal with admissions procedures where there is no bed for that patient.
VIOLATING HUMAN RIGHTS
At one particular point in the classroom inputs for the commanders the trainer asked us a summarising, almost rhetorical question at the end of the human rights input to underline the importance of these things and the importance they must play in our thinking when we’re deploying groups of officers with additional training the application of coercive authorities, “Are we going to police this in a way that, it means we violate this lot? …. no, we’re not are we!” As if that were the end of the matter. And here’s my main point: in that context and for that training, it IS the end of the matter and I’m not arguing for a moment it should be otherwise. I’m agreeing this is absolutely right, because (as I’ve argued on this blog before), it is unlawful for a public authority like a police service to operate in way that is incompatible with a Convention right. It is unlawful to do so. And this brings us to what this stuff might mean for policing and mental health:
For those who may not necessarily have read any detail about human rights law and what it means in practice rather than in the media and popular discourse, I would recommend you spend some time on it. When I did my sergeants exam in the police, the HRA had not come in to force and we weren’t required to study it; but by the time of my inspector’s exam it was in play and I’ll be honest: I groaned out loud at the size of the chapter and the fact this legal stuff seemed to be written in a very different style of language to the UK criminal and police law I’d become familiar with. It takes a bit of getting used to, but reading the various articles for yourself is genuine worthwhile, in my view. It should be read with the level of attention police officers give to the Police and Criminal Evidence Act 1984 and that I’ve argued we should give to the Mental Health Act 1983 or the Mental Capacity Act 2005.
To help, I’d recommend you look at the Rights Info website: this is the brainchild of human rights barrister Adam Wagner of Doughty Street (who in my view should be have be given instant QC status for setting this thing up and raising the profile of the reality of what human rights law means!). In particular, look at the downloadable infographics (PDFs) on each of the individual rights. These summarise what it means in practice and in more detail. The detail is where this stuff is really at: it’s what is important and where it will help you understand, if you haven’t looked or studied this stuff already. It’s why the various media headlines you hear about foreign criminals being unable to be extradited because of their cats is quite ridiculous. So it’s also worth reading their page about the worst human rights myths. << Crucially, I’m not saying that everything about the detail of human rights law in practice is spot on all of the time, but then I’m not sure there are many people who do and we’ve all got opinions.
What I am saying is a) this stuff is the law of our country by virtue of the Human Rights Act 1998 and so we’d best know what we’re talking out; and b) we need to raise the detail of understanding of it in policing responses to mental health demand because by the end of this blog I’m going to convince you we can see repeated violation of these fundamental rights. And that’s unlawful and I’m a policeman so it bothers me on its own terms.
DOING THE DETAIL
Having no doubt clicked the link to the Rights Info website and read the materials over a coffee(!), you’ll have focussed in on a few of those European Convention rights as especially relevant, won’t you? Articles 2, 3 and 5 leap out in particular, but others can be relevant too. Individuals living with serious mental illness and who are in mental health crisis for whatever reason, have a right to life (2), not to suffer inhumane or degrading treatment (3) and a right to liberty (5). So far, so good – what’s not to like and I doubt anyone is disagreeing, are they?
But the detail of this stuff then gets interesting because what do these things mean? Human rights are either absolute, limited or qualified – this means that some rights can never be violated, ever, where as others are not violated if the state agency acting does so in a way that is written in to the Convention itself or to domestic law (limited and qualified, respectively). Article 3 is an example of an absolute right: if someone’s treatment has amounted to inhumane and degrading treatment, then the case is proved. There are no circumstances in which this can be limited or qualified – and the MS v UK case (2012) is a police-MH related example of this. MS was detained in a police station for over 72hrs in 2004 and he was so unwell and in ‘dire need of psychiatric care’ that him being left in a police station for this long meant his treatment was found to amount to an Article 3 violation.
Article 5 relates to the right to liberty but this is a limited right: it means that the wording of Article 5 itself tells us when the state can remove someone’s liberty without this amounting to a violation of the Convention. The obvious example in policing is officers making arrests: if the police arrest you lawfully for a suspected offence, then this action may well remove your liberty but it does not remove your right to liberty, because that right only exists outside the specific exceptions. Obviously, the state can then subsequently have a trial and send you to prison, if convicted – none of this violates a right to liberty if done lawfully (and see Article 6 for the right to fair trial – another limited right). The right to liberty also relates to “persons of unsound mind” which means that the lawful application of the MHA or MCA does not restrict someone’s right to liberty, even if the effect of this is detention in hospital for many weeks or months. But you’ll notice I’m emphasising lawful arrest or lawful application of the MHA, etc.: if the police arrested you for walking on the cracks in the pavement, that’s an Article 5 violation because this is not an offence – it’s not lawful (under domestic law). It also follows that detention outside the limits of what the MHA or MCA allow is also not lawful and therefore an Article 5 violation.
NEEDS ADMISSION – NO BEDS
So this is a big one, in operational practice: there are (in my professional estimation) thousands and thousands of instances per year where people are de facto detained and have lost both their liberty and their right to liberty. << Remember: they are two different things because it is a limited right. The scenario goes that an AMHP and two Doctors assess someone under the MHA, either in police custody after arrest, in a place of safety after use of s136 or in a legally unrestricted context (in A&E without s136; or at their home address, etc.). Following assessment they want to apply for admission and the grounds for application under s13 are agreed to be satisfied. The AMHP is not provided with a bed by the lead-assessing doctor whose job it is to find the bed and ensure the AMHP has a way to make the application. Perhaps the CCG have failed to specify meaningful arrangements under s140 for the admission of patients in circumstances of special urgency? We know from history it can take days if not weeks to find beds for patients and the implicit or express expectation of the police that they will just “keep the person” safe until that time is a violation of Article 5. Situations like officers in A&E for 6 days – there is no domestic legislation allowing for this at all.
This kind of thing happens in two main ways for the police: we use the MHA to remove someone to a Place of Safety (sections 135/136) and the 24hrs runs out before necessary arrangements for admission have been made. It also happens where someone was originally arrested for a suspected offence and having been assessed under the MHA, they are in need of ‘diversion’ to ospital without being (immediately) prosecuted – there are also legal timescales on detention in police custody under arrest without charge. So do we let the person go on the basis that domestic law offers no further scope to detain; or do we keep hold of them because we believe they are at risk? This brings some of these rights in to conflict: continued detention being unlawful it potentially violates Article 5; but release of someone known to be a suicide risk could violate Article 2. What do we want the police officers to do?!
Well, the courts seem to be saying that this is not for the police to resolve and I would argue that means the pressure for decisions needs to be placed back where it belongs: on AMHPs and MH services – really sorry folks, but this is the law! If the AMHP is agreeing prior to the 24hrs expiring that the person needs admission and an application is necessary, then according to s13 MHA “they shall make the application”. Any difficulty they have in giving effect to this legal respsonsibility is a matter for them and the doctor, not the police officers. This is especially so where the police have no lawful way to mitigate the resulting situation and no obligation to do so. The responsibility does in fact sit and should in fact be placed back in that direction, not on operational police officers who are being implicitly requested to misconduct themselves and violate fundamental rights. And if the AMHP isn’t able to agitate towards those who control decisions around beds, police supervisors officers can offer to pile in and help them, because of the legally invidious position it otherwise leaves the troops.
THE RIGHT TO LIFE
There have been a number of Article 2 human rights cases and we continue to see the regularly. In the Savage and in the Rabone cases, we saw relatives bringing civil litigation in the UK courts against NHS providers. (Remember, the Human Rights Act 1998 means we no longer need to go to the European Court to bring human rights challenges). These claims followed the deaths by suicide of two psychiatric patients – Carol Savage was a s3 patient who absconded from an Essex hospital and died shortly afterwards at a railway station. Melanie Rabone was a voluntary patient who was allowed to leave hospital without being detained despite being at risk of dying by suicide and was found hanged shortly after being reported missing to the police.
Coroners courts are also regularly consumed with human rights considerations when running inquests. If the deceased person had contact or care from a state agency leading up to their death or at the point it occurred, the Coroner must decide whether or not to have an ‘Article 2’ inquest with a jury, because of the potential question around whether someone’s right to life was compromised. Article 2 inquests around policing and mental health are frequent. Next week, the inquest in to the death of Graham Smith in Leicester will take place after incidents involving the police service and the ambulance service; just prior to Christmas 2018 Leicester had the inquest in to the death of David Stacey following contact with Leicester mental health services and Leicestershire Police. Obviously, any death in police custody will attract scrutiny through an Article 2 inquest: Sean Rigg, Kingsley Burrell, Seni Lewis, James Herbert (and I could keep listing cases) saw such coronial inquiry.
The right to life is a confusing one: it is an absolute right, and yet there are some circumstances in which the state can lawfully end someone’s life. For example, the police may use reasonable force to achieve various lawful objectives (prevent crime, arrest offenders, self-defence) and therefore may lawfully kill someone. This absolute right to life is not violated if officers were doing these things to balance the suspect’s right to life against the right to life of another, whether that person be a third-party victim of crime, or the officer themselves. If you remember, the killers of fusilier Lee Rigby ran at officers to kill them as soon as the police turned up. Armed officers shot the suspects in self-defence for they themselves reasonably anticipated being killed had they not taken that action. If those suspects had died, there is little prospect it would have been considered their right to life was violated (if you haven’t seen the videos, they are horrific – there is no doubt those men would have killed those cops as they had Fusilier Rigby if the officers hadn’t defended themselves).
OSMAN v UK
The case all too often cited around Article 2 and the ‘duty of care’ is case Osman v UK (1998). In that case, the police were told of a threat to the life of Osman and the case looked at whether the Article 2 duty to ensure Mr Osman’s right to life was engaged. Where risk is from a third-party, there is a clear duty to ensure it is mitigated but only to the extent that this is reasonable and possible – the European Court ruled the police did not violate Ali Osman’s right to life despite him being killed.
In the Savage and in the Rabone cases a similar logic was applied to the risk of suicide: that if we reasonably believe someone to be at risk of dying by suicide, then there is an Article 2 obligation to mitigate that risk. It may not be possible to mitigate every aspect of it, but the agencies must do what they reasonably can to ensure the person does not die where this is a consequence of their mental disorder. It is in this legal context that I twitch badly where patients walk from hospitals and are then reported missing as ‘at high risk of suicide’. OK, let’s think this through: if the person walked out at 10pm and they were reported missing at 10:05pm as ‘high risk of suicide’, it’s reasonable to say they were also at high risk of suicide at 9:55pm – so what plans were put in place at 9:55pm to mitigate this risk? As soon as we identified that risk of suicide, our Osman level duty of care kicks in so what did we do to discharge it?!
There are various options and be aware that Coroner’s have criticised hospitals and specific NHS professionals for not doing this. Depend on specifics and circumstances, did we –
- Arrange enhanced levels of observations with that person to attempt to keep them positively engaged – actually spending time with people and being emphatic and compassionate can make a massive difference to people’s perceptions of processes and may reduce the likelihood they will leave.
- Did we arrange for security to be nearby in case the person should try to leave (and by implication, do we commission security and legally brief them to give effect to whatever decision we’re expecting). Yes, security do ‘have powers’ in some situations – it might be under common law or the MCA, especially if we’re already in the process of calling the police.
- Did we arrange for one member of staff to safely follow the person if they do leave in order to be able to more easily talk the police officers to that person rather than just say, “Oh, he left A&E and turned left”. Thanks – humans walk at 3mph so if you report immediately and can attend within 15mins, get sufficient details within another 5 we have circle with one mile radius to search. Even bigger if they decided to leg it before the police arrived, it’s then 4-5mph.
- Did we consider ringing the police service to ask for consideration of the application of s136 MHA? – I can hear every cop in the country groaning at me for suggesting this, but it is a legal option and is relevant in some cases, however much we dislike the fact.
Obviously, all cases on their merits and in their particular circumstances. Not all of this will be relevant all of the time but it’s the failure to consider any of it that is potentially a violation of the duty of care owed and therefore of Article 2. Yes, I know resources are finite, but these are fundamental human rights; and the courts have ruled that a lack of resources is no defence at all to an accepted violation. This is not like failing to ensure health & safety audit forms around toasters in police stations or hospitals are completed on time, important as that may be and a breach of Health & Safety regulations, no doubt. This is about the most basic rights which strike at the integrity of all citizens in contact with state agencies and I think we need to talk about this and do far, fore more thinking and training about how to give effect to this stuff in operational practice in policing and healthcare.
Section 6 of the Human Rights Act 1998 states – “It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions 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