Three Days In Custody

I woke recently to find a story in my social media news-stream that caught my attention – such things happen quite a lot, to be honest, but the BLOG has now been going for so long that I don’t find time to highlight and deconstruct each one – there are well over five hundred posts to keep you occupied on the long winter nights and a story that raises issues I haven’t already covered is becoming harder to find.  Enter this story from Staffordshire which was publicly highlighted by the Police and Crime Commissioner, Matthew ELLIS in September where a man was detained in police custody for 64hrs, involving 22 officers and an estimated £20,000 in policing costs. For the want of an appropriate, timely and accessible mental health bed.

The police were called to a situation in which a 47yr old man in distress had pulled his trousers down to urinate in the street.  He was described in the article as ‘having absconded from a London hospital’ – I will treat this to mean he was a legally detained under the Mental Health Act in London and had left without permission or had failed to return from authorised leave.  (If he had been in hospital on a voluntary basis, then he couldn’t have ‘absconded’, legally speaking, because he would have been free to leave if he so chose.)  This means his re-detention in Staffordshire would have occurred under s18 of the Mental Health Act, the man being a patient who is considered absent without leave.


This particular power is one that has featured in a few complaints and IPCC inquiries recently.  I have been asked a few times to advise Professional Standards or IPCC investigators to understand this law, to ensure they are correctly commenting on police duties and responsibilities.  Section 18 is not a subject that is covered in the national police training curriculum – it will be from early next year, but it was never mentioned to me when I joined the police and I think my third-ever mental health job was a situation in which s18 was the power in question.  I remember looking at the other probationary police officer I was working with and neither of us had a clue what to do … so detailed understanding of this power is not common and that is relevant to this situation.

Where a patient is Absent WithOut Leave (AWOL), section 18 allows the person to be taken in to custody and returned to the relevant hospital.  In this case, the relevant hospital is the one in London from which he had absconded.  So once Staffordshire officers have used s18 to re-detain him, the main question is in connection with how he is returned to the capital.  The phrase ‘taken in to custody’ in s18 does not mean taken in to police custody in the sense of the cell block; it refers to the patient being taken into a condition of legal custody by a police officer, an Approved Mental Health Professional or by anyone else authorised by the London hospital managers.  In that sense there should have been no circumstances whatsoever in which an AWOL patient should have been detained in police cells.  When I hear of it, I always think of the human rights case Aerts v Belgium which ruled that people who are legally detained should always be detained in locations which are relevant to the specific circumstances: patients detained in hospitals; prisoners detained in prison, etc.. Missing patients detained in police cells? … would be interested in legal views on that one.

The article refers to officers taking the person to a local mental health unit: I briefly wondered about whether the officers had initially used section 136 to detain the man and taken him to a Place of Safety? … some PoS services can be a bit funny about allowing their facility to be used for anyone who is not detained under either s135 or s136, even where they have been detained under other MHA mechanisms so perhaps the police holding powers were used first and his AWOL status only confirmed later? It may not have been possible at the point of arrest to know who he was  or to know his MHA status so perhaps that was uncovered at the PoS unit? Assume for a moment this is true: why not allow a s18 detainee to remain in a place of safety until arrangements could be made to return him to hospital or admit him locally, once this status became known? Nothing in law prevents this, yet the article insists that after seven hours in the local unit, “staff demanded police remove him.”

I’ll just leave that thought there: an known MHA patient was removed from an NHS unit which should, according to national guidelines, be designed and operated to manage patients with disturbed behaviours. Not the first time this has happened: indeed recently an inquest focussed upon NHS staff calling the police to a unit for someone who has not legally detained and demanding their removal.


So bereft of other options, this man arrived in police custody around half six in the morning on a Friday and remained there until around 10pm on a Sunday evening. During that time, the man’s behaviour – because of his illness – was described as ‘so extreme’ that a whole wing of police custody was given over to him. I wondered whether nursing support was arranged in custody via the NHS – nothing prevents this, I’ve sought it and seen it many times as the NHS seek to rely upon custody as a ‘staging area’ for patients who are considered unmanageable in an NHS PoS.

This description also led me to wonder whether there were sufficient similarities with MS v UK [2012]? – a case which led to a ruling by the European Court that a patient’s Article 3 European Convention rights had been violated? The very point in hand in MS v UK was the protracted time it took to arrange an admission for a man who was in ‘dire need of psychaitric treatment’. We could also wonder in this case, whether Article 5 was engaged? – the right to liberty not only means your liberty not being removed except by a process prescribed by law; it also means that when your liberty is removed you are held in a place which is relevant to the reason for that restriction. As mentioned above: nothing in s18 or the MHA allows specifically for the detention of a patient in police custody for almost three days purely because the NHS are having difficulty returning someone to London or arranging admission to a local bed.

I’ve raised these kinds of issues many times for discussion with NHS managers – sometimes hypothetically, sometimes in light of specific incidents. We see one of the typical reactions in the response quoted in this article: that there is a lack of relevant services.  We may wonder whether the undertone to this remark is a lack of resources to fund services and in this case, a lack of psychiatric intensive care services in Staffordshire or conveyance services to return patients who emerge some distance from the place they were detained. I remember reading of a case cited in the MS v UK arguments (whose name I’m damned if I can remember!) but it was a human rights case in Ukraine which led to the European Court to rule that economic resource arguments are never a defence to admitted violations of the Convention. In other words you cannot say, “We unlawfully detained and degraded the patient but had no other option in difficult circumstances because we don’t have the facilities or resources to do otherwise.”

If any lawyers can remember than name of that case, I’d be very grateful to know of it!  I’ll leave these thoughts with you.

IMG_0053IMG_0052Winner of the President’s Medal from the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.


Assaults and Medical Factors

A brief BLOG, because nothing I’m going to write here says anything new at all about assaults on NHS staff, it’s just that latest figures on this topic show we’re really still no further forward!

The 2014/15 figures for assaults on NHS staff were published yesterday and they show 67,864 assaults overall, right across our NHS. This involved 1,861 assaults on paramedics – my brothers and sisters in green – and 45,220 assaults within the mental health sector, which is 66% of the total, down from 70% in years gone by.  You can read the NHS Protect spreadsheet if you want a lot more data to consume or a very detailed look at your area.

Assaults on NHS mental health staff has always been a difficult subject: no-one thinks that getting assaulted is ‘part of the job’ but we also know that when people are in extreme distress and fearful, an assaultative reaction to circumstances can be at least understandable, if not a direct manifestation of their particular condition. So the NHS identifying which cases should be reported to the police is difficult enough: we know that only about 1 in 8 of the assaults recorded by the NHS are subsequently reported to the police. Officers then knowing how to investigate them and determine an appropriate outcome has also proved problematic – I still hear anecdoates from MH professionals that when they report matters to the police, the response is mixed.  Some officers still believe you cannot arrest and / or prosecute someone who is detained in hospital under the MHA – well, you absolutely can! … and that you have to have complicated discussions with psychiatrists about ‘capacity’ before they can start doing anyting – you absolutely don’t!

But there is confusion in the NHS as well – and you’ll have to look at the detailed spreadsheet to see this for yourself.  The NHS recording mechanisms ask staff to indicate whether there were “medical factors” involved in the assault – I’m not aware of whether this is specifically defined or whether such a judgement is given tby the victim or by the doctor in charge of that patient’s care. Either way, the outcome is interesting –

  • Oxleas NHS Trust in London and Nottinghamshire Healthcare Trust believe that none of the assaults that occured within their trust involved any medical factors – NONE of them.
  • West London Mental Health Trust and Cheshire and Wirral Partnership Trust believe that all of their assaults involved such factors – absolutely ALL of them.

Now I’m not a medical doctor, as you know – but I suspect that neither of these can be correct!  And as a police officer I can say that this can have implications for the appropriate legal response to any allegation because it will either affect the police / CPS assessment of the evidence; or the assessment of whether it is in the public interest to prosecute.  Imagine the response officer or the hospital liaison officer taking a report and asking about whether there were any clinical issues affecting the incident or whether “medical factors” were involved?  The answer is important: in Oxleas and Nottinghamshire, it’s easier for the officer: they can confidentally tell their supervisor and the CPS that the professionals involved have negated the possibility of a clinical factors playing any role.  But the officer in West London and Cheshire can’t do that, can they?

So it begs the question: if clinical issues affected the incident, how did they affect the incident? Does it affect the so-called ‘capacity’ question (which is incidentally, the wrong question to ask but I’ve covered that elsewhere) or does it affect how we might weigh the public interest? What exactly does “medical factors” mean for this patient and victim?!

I’ll leave the point there – you can (re-)read other BLOGS on here if you’re interested in other things that could be said about all this and you can peruse the spreadsheet to your satisfaction … now who doesn’t love a good spreadsheet?!

IMG_0053IMG_0052Winner of the President’s Medal from the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.


Draft College Guidance

The College of Policing has now released, for public consultation, draft guidance on policing and mental health – known as Approved Professional Practice.  We have been working on this for the last year or so —


These materials are now open for your scrutiny and feedback and will remain so until the end of 2015. During early 2016, we will synthesize all of your opinions and observations into a final product and it will be published by the end of the first quarter.

Two important hyperlinks for you –

This second link takes you to the College APP website and you’ll see four separate hyperlinks in orange on the left-hand side of the page. Each of these links is to one of four individual ‘chapters’ of guidance that cover the main topics across policing and mental health.

You then need to use this template for your feedback; and send it by email to the APP developers.

From my own professional point of view, the challenge in producing guidance is how to achieve brevity and simplicity in a topic area that is massive and full of complexity.  You may take the view that we haven’t struck this balance and for what it’s worth, we’ve debated it at length and are still uncertain as to we’ve judged it perfectly!  Whether you think this is too much or too little, you need to let us know and be specific: then we can work hard to get this right after the consultation ends.

But for now: it’s over to you and please feel entitled to push this around your personal and professional networks, as you see fit.


IMG_0053IMG_0052Winner of the President’s Medal from the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.