United Nations Headquarters

Taser and Torture

This BLOG post is a direct response to a piece that appeared in the Guardian, entitled Tasers have no place in mental health care by Matilda MacATTRAM, Director of Black Mental Health UK. Before going further, I’d encourage you to read the whole piece for yourself. The debate in the House of Commons did include two amendments by MPs about Taser: Charles WALKER MP called for greater scrutiny through improved reporting; Normal LAMB MP (former minister of state for mental health) called for an outright ban on the use of ‘electro-conductive devices’ on psychaitric wards. I think the (then) policing minister, Mike PENNING MP, more or less summed up my own position: that we would all like to live in a world where the police are not called to inpatient psychiatric wards and that even if they were, that it would not be necessary to use a device like taser. But I don’t police the world I want to live in; I police the world I do live in and mental health wards can be extremely violent and dangerous places that patients and staff alike will often say feel unsafe.

A couple of months ago, a mental health nurse was murdered by a patient in a Croydon mental health unit. In 2014, a mental health nursing assistant was murdered by a patient in Gloucester after he returned from authorised leave with a ten-inch kitchen knife. The last time the NHS published their assault figures, we learned that around 70% of the 67,000+ assaults which were reported occured within the mental health sector – we know that many of those were assaults occasioning actual or grievous bodily harm. So the first thing we need to do is – yet again – debunk the myths that surround the nature of the relationship between mental ill-health and crime.

MENTAL HEALTH AND CRIME

MacATTRAM writes —

What we seeing [sic] is a health service relying on a forensic solution to meet clinical need, and yet policing really has no place in mental healthcare.

WOW! – I hardly know where to start at the naivety of this statement. It is explicitly written in to our laws that policing has a place in mental health care … the Mental Health Act 1983 affords various powers to the police and mental health professionals but we expressly afford the police some powers of their own that even psychiatrists and mental health nurses cannot exercise – section 136 MHA. The criminal justice system is the only route to some patients being detained under certain kinds of orders of the Mental Health Act and guess who makes decisions to send people in to the criminal justice system? That will be the police. So it is neither true, nor realistic to make this claim.

The ‘forensic solution / clinical need’ statement needs pulling apart too before we can get on to any role that Taser should or should not play. I admit tor remaining unclear as to what this means, precisely. But if we are saying that all interventions on mental health wards around aggressive or resistant behaviours are clinical interventions, then this is also far from the accurate. Many patients who have offended even whilst detained under the MHA in hospital are found, in law, fully responsible for their actions and convicted. For example, when Ryan MATTHEWS appeared in court in December 2014 accused of the murder of healthcare assistant Sharon WALL, he pleaded guilty and was imprisoned – there was nothing ‘clinical’ about his attack. Imagine – hypothetically – that a police officer was standing there, in possession of a Taser: justified to use it?

More widely on crime and mental health, research referred to in the NICE Guidelines (NG10) on Violence (2015) refers to the figure above 90% for the proportion of people mental health problems who offend whose behaviour does not directly emerge because of their mental health condition. So where any deployment of Taser is being considered by a police officer in the context of a serious offence in progress or serious risk to life, it would remain true that most people could – at least in theory – be held responsible in law for their actions and that this is not a ‘clinical’ intervention, but a crime prevention intervention.

TORTURE

I’ve heard the claim before about Taser amounting torture so I decided this time to actually look it up.  We need to refer to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and then to the 39th session of the UN’s Commit Against Torture, which met in 2007. The document of the 39th session is 325 pages long and I’ve done my best to read it all: I can only see one reference to Taser and it comes on p40. It is important to understand the context of the following comment: it is a specific reaction to the Committee learning that Taser has been issued to certain members of the various Portuguese police services –

The Committee is deeply concerned about the recent purchase by the State Party of electric “Taser X26” weapons for distribution to [the Portuguese Police]. The committee is concerned that these weapons cause severe pain constituting a form of torture, and that in some cases it may even cause death, as recent developments have shown.

The State party should consider relinquishing the use of electric “Taser X26” weapons, the impact of which on the physical or mental state of targeted persons would appear to violate articles 1 and 16 of the Convention.

I will give advance notice of what may appear to some to be imminent pedantry in what I’m about to say, but I think these are important points to make –

  • What does the UN Convention on the Prohibition of Torture Actually say? – the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
  • What did the UN actually say about Taser? – it didn’t say “Use of Taser amounts to torture” in a general proclaimation. They said they are ‘concerned’ … so is it, or isn’t it?! Well, there are clues elsewhere because they revisited this in 2013 when the Dutch Police were considering a pilot of these devices whereby they would issue them to all police officers in a certain area.
  • The Netherlands, 2013 – whilst expressing their reservations again, the Committee did not call for total relinquishment, but merely to refrain from ‘flat distribution’ to all police officers. They hoped that special protocols would be agreed for those who did carry the devices and that they would only be used as an alternative to lethal weapons. But torture is torture, right? – there can be no exceptions to that rule and there is no defence under the Convention.

UNITED KINGDOM LAW

Section 134 of the Criminal Justice Act 1988 is our domestic law and creates a criminal offence of torture, punishable by imprisonment. During one CAT document on UK progress against torture, the Committee does express regret. That UK law affords a defence to any allegation of torture, something the UN says should be removed.  UK law states that –

A public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties.

There is another offence under sub-section 2 of someone doing so if they inflict severe pain or suffering an another at the instigation of a public official. The defence I referred to is in sub-section 4 – and this is where I breathed a sigh of relief  because it “shall be a defence for a person charged with an offence under this section in respect of any conduct of his to prove that he had lawful authority, justification or excuse for that conduct. For the purposes of this section ‘lawful authority, justification or excuse’ means … lawful authority, justification or excuse under the law of the part of the United Kingdom where it was inflicted.”

My sigh of relief was because I have inflicted severe pain or suffering on others in the course of my duties: I have repeatedly struck people with batons; I have restrained people for hours on end in hospitals to stop them hurting themselves; and used public order shields to strike people repeatedly and pin them against walls – thus allowing my colleague to repeatedly baton a large knife from the grasp of a man who seemed hell-bent on killing us. But in those contexts I was acting lawfully, tasked as I had been with arresting or detaining people under other laws, like the Police and Criminal Evidence Act or the Mental Health Act. I have also been in charge of several operations where Taser has been deployed against extremely violent and sometimes very vulnerable people.

A SHORT HISTORY OF TASER

Matilda MacATTRAM is quite to highlight that Taser was first introduced in the UK for authorised firearms officers, in order to give them a ‘less lethal alternative’ to guns. The wider distribution of the device is attributable to subsequent decisions to issue Taser to officers who do not routinely carry firearms and this is where it gets controversial for some. Is Taser the second-highest use of force, ranking just below firearms and above the use of batons or incapacitant spray? – no, it’s not. In terms of the impact and after effects, Taser can be less injurious to those targeted than a baton; it can also be effectively operated from a greater distance and at less risk to the officer and third-parties.

So Taser equipped officers are often deployed, for example, to incidents where people are reported to be carrying or threatening the use of knives and most of the time, those officers do not draw their Taser – it happened only very rarely. Both of the homicides of mental health professionals, referred to above, were committed with large knives. To effectively use a police baton on someone with a knife, you have to get close enough to allow yourself to be stabbed: with Taser that is not the case. It is also worth bearing in mind, that in terms of self-defence, none of us have to take any risks whatsoever with our own safety before being legally allowed to defend ourselves, pre-emptively, if necessary. As the greatest threats to the safety of police officers arises not from guns but from knives, it seems inevitable that Taser would be considered as having a role a wider role than those situations where the police would be thinking of pointing a gun at someone. Unless, of course, someone has a better idea for how we stop someone opening up their own neck with a bread knife, without getting close enough to be stabbed?!

What went unmentioned in Matilda’s article is that the vast majority of time that Taser is ‘used’, this merely means it is removed from the holster and / or pointed – it is not normally discharged at the subject. And let’s be clear, the UN appears to have stopped just short of saying, “Use of Taser is torture”, because of the remarks they subsequently made about the Dutch pilot in 2013. These later remarks indicate that comments made in 2007 appear to have been modified and updated – quite rightly given the majority of its ‘use’ sees no pain or suffering whatsoever inflicted on the target.

I can only summarise: mental health wards can be places of extremely serious violence, including the use and threatened use of weapons and including the deaths and serious injury of mental health professionals – in the majority of those cases, there will be no legal barrier to the full investigation and prosecution of those who have injured NHS staff, even whilst unwell. As such, parity of esteem has to work both ways: if we accept that the police may be running in to an A&E department – where assault rates are actually far lower – why would we suggest that colleagues working in mental health services are entitled to any less protection from their police service and why would we seek to totally prohibit officers from using equipment that will limit injury and better ensure their own safety? 

I admit – I don’t even begin to understand.

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Answer the Question!

You may have noticed in the BLOG published yesterday, I didn’t really address the question of what ‘correct’ use of s136 actually is, despite criticising throughout the lack of precision by others who raise the topic of correct use, or over-use of this provision.  This was deliberate – I’ve covered the topic elsewhere on this BLOG for many years and I was forced to think really hard about it earlier in 2016 when a Coroner wrote to the College of Policing following an incident in Hampshire where officers arrested a vulnerable woman for an offence, rather than detain her under s136.  It gave rise to the debate I’ve had many times, about when should officer detain under the Mental Health Act 1983 (MHA) and when should they arrest for an offence, if both options are available?

In yesterday’s BLOG, I argued that it would be necessary to look at data from police forces that is generally not available, when trying to reach any kind of assessment about ‘correct’ usage of section 136 – especially if various figures in mental health services and in Government are intuitively prepared to argue against the instinct of Baroness HALE, that s136 MHA is under-used.  If an apparently suicidal person on a motorway bridge is threatening to jump, when – if ever – should they be arrested for the public nuisance offence or Road Traffic Act 1988 offence? We do know that some people who have mental health problems have been criminally prosecuted and that others have been diverted under the MHA: what variables influence this?

But I decided to re-address the question, for clarity’s sake and because someone on social medica accused me of ducking it, just as I was accusing others of doing!  So here’s what I’ve previously said, amplified in light of where we now find ourselves in 2016 with things like street triage and legal reform –

ARREST OR DETENTION?

Well, this has been my standard answer for years, about how to make the decision between mental health criminal detention: I’ll get explicit about ‘correct’ usage, immediately afterwards –

  • You arrest for the criminal offence, UNLESS: >>>
  • The offence is trivial, especially if it is ‘victimless’; or
  • The victim reporting the incident is not seeking a justice response, but is seeking help for someone they know to be suffering from mental-ill health.
  • That in the circumstances, the conduct is more likely than not attributable to mental health problems which should in the circumstances be prioritised.

The idea here, is that police officers will prioritise the health of people who may have offended in a minor way and only criminalise those where the offence is more serious and where greater consideration may need to be given in light of more information as to whether diversion is the right approach.  It often will be, but it’s hard to judge such things on a bridge over the M42 at 10pm on a Tuesday.

So what is ‘correct’ usage of s136 MHA? – in addition to thinking about any offences that may be involved, we also need to think about whether detention is actually necessary at all and we need to respect the limits of the powers that Parliament have afforded to various health and social care agencies.

ALTERNATIVES TO DETENTION

Avoiding detention of any description is connected to the ability to avail other options: and this shouldn’t come as a shock. Policing research from fifty years ago by Egon BITTNER, and then developed by Melissa MORABITO around 10 years ago showed that arrest decisions in mental health encounters are clearly linked to police officers’ knowledge of and ability to access alternatives. Common sense, isn’t it?! … but it means that alternatives need to exist, police officers need to know that they exist and they need to know how to access them. This is why I’ve often smiled at the feedback we hear about street triage schemes claiming that they are reducing ‘inappropriate’ use of s136.

I’m not saying that some use of this power isn’t inappropriate – it always has been and it probably always will be. But there are two points to make about this supposed, ‘inappropriate’ use: firstly, some triage nurses have been known to suggest ‘inappropriate’ use when working with the police as they find themselves jointly responsible for situations they cannot otherwise resolve in private premises! Secondly, a police officer using the power to take a patient (most people made subject to the use of s136 are known to mental health services) to services isn’t an example of ‘inappropriate’ use if that officer cannot otherwise facilitate an encounter in circumstances where they believe it is urgently necessary to safeguard someone. In fact, there’s actually a third reason that no-one seems to want to talk about, which is there is reason to question how appropriate it is to be making decisions about suicidal people during ten or fifteen minute interviews on cliff tops and in the backs of vehicles. Most police officers can tell you, that putting time and space between people and difficult circumstances can be a very effective way to alter mindset and diffuse emotionally charged situations.

So it seems to follow that ‘correct’ use of section 136 MHA is —

  • Proportionate – detention reflecting the potential seriousness of any inaction.
  • Lawful – hardly seems worth emphasising, does it? … but so many professionals – not just police officers – still seem to struggle with the idea that it is unlawful to manufacture someone’s presence in a public place so as to ‘allow’ use of s136.
  • Appropriate – in terms of an inability at that time to access alternatives to detention; and in circumstances where it is not necessary to arrest someone for any offence.
  • Necessary – in the opinion of the officer whose responsibility the exercise of the power is.

FOR THE AVOIDANCE OF DOUBT

The debate we hear on all this is still remarkably and surprisingly ill-informed: over the last two years I’ve challenged a lot of mental health trusts, professionals as well as political and journalistic commentators – without except, suggestions of ‘correct’ usage or allegations of ‘inappropriate’ use fold, as soon as you start challenging. We still hear people using the conversion rate argument about s136 – the idea that unless any detention by the police ‘converts’ in to someone being sectioned by an AMHP and two doctors it was ‘inappropriate’.

That sort of claim always makes me drag out my story about the bloke detained after being persuaded back over an M6 motorway bridge who was then detained s136 MHA and then sectioned by an AMHP and two Doctors under s2 MHA.  Three days after being admitted for assessment, he suddenly became lucid as the temporary effects of pharmacy drugs and celebratory alcohol wore off. Was the use of s2 MHA ‘inappropriate’ just because it didn’t lead to a confirmed diagnosis? – of course not.

But as ever, as research has shown for years: whilst the trick to reducing s136 does lie partly in effective police training and more importantly in leadership, it lies more usually in timely access to appropriate crisis services both for patients and police officers in contact with them. The less of them you have, the more likely your local constables will be inclined to use this mechanism to bring together patients and professionals where urgent safeguarding needs indicate this is necessary and otherwise impossible to achieve.

So some of the variables you’ll need to understand if you’re going to look at the use of s136 across police forces, is the percentage spend by CCGs on mental health; the configuration and exclusion criteria of crisis mental health services; and the degree of integration that exists in that area across the health and social care organisations to prioritise mental health. We know that this varies across England – why wouldn’t it affect the decisions of police officers working alongside such dysfunctional systems given what research tells us about detention decision-making?


IMG_0053IMG_0052Winner of the President’sMedal from the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award


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Correct Use of Section 136

You may have been following the progress of the Policing and Crime Bill 2016 through the parliamentary process – this is the Bill which will amend various bits of legislation on various issues in policing, but for our purposes, it is most notable that it will amend police powers under the Mental Health Act 1983.  The Government undertook a consultation in 2014 about what such amendments should look like and there have been various debates in the House of Commons as the Bill completed its journey through the lower house.  It will shortly commence it’s passage through the Lords and various topics are still up for debate.

Members of Parliament like Normal LAMB, Charles WALKER and Kevan JONES have introduced proposals to further amend the Act in ways the Government hadn’t originally planned – on topics like, the use of Taser by the police on inpatient mental health wards; training for police officers on mental health and seeking to define in the Act itself what the exceptional circumstances would be where An adult can still be detained in police cells.  This latter amendment was thought necessary by Norman LAMB because the government proposal was that the definition would be issued in Regulations published by the Home Secretary.

MENTAL HEALTH IN PRIVATE PREMISES

This post concerns one of the recent debates on the Bill: on 14th July, Sir Paul BERESFORD spoke about the difficulties of effective police responses in private premises to mental health emergencies.  The keen-eyed amongst you may remember Sir Paul’s name – he is the MP who introduced a ten-minute rule motion in 2014 suggesting that section 136 of the Mental Health Act be amended to allow officers to take protective action in private premises. This was set aside after the Home Office made it known that the issue was being considered in the 2014 review.

I can only assume that in the absence of that topic being overtly addressed and in light of their being no other obvious solution to the very real problem these situations represent, Sir Paul has raised the point again.  But it’s one of the Government responses to his point that particularly caught my attention, from the (then) policing minister Mike PENNING.  This is what I want to raise again, quite frankly because it infuriates me to distraction how undefined these various accusations and observations are.

As quoted in Hansard, Mike PENNING said –

Before we consider changing section 136, we need to ask whether it is being used correctly. We are concerned about the number of section 136 orders that are being used, and the data that I asked for show that forces in some parts of the country almost never use section 136, while others use it extensively.

So, what is ‘correct’ usage? – I don’t understand what that means.  I also don’t understand why the Home Office are concerned about the usage – let us not forget, the Deputy President of the Supreme Court Baroness HALE, argued in the fifth edition of her textbook on mental health law (2010) that the power was potentially very under-used. Of course, it’s true that forces use the power differently – before either force had introduced street triage schemes, Nottinghamshire and West Midlands Police were using the provision as often as each other. The problem being: West Midlands Police is almost three times the size of Nottinghamshire in terms of their officer numbers and the resident population. Humberside Police only use section 136 MHA about 400 times a year, whereas Sussex use the provision around 1,500 times. So what does ‘correct’ mean? … I know what I think, but I suspect Mike PENNING doesn’t agree with me!

VARIABLES

And there is far more to it all than s136 numbers. As Baroness HALE pointed out, one reason for inferring the power is under-used is that there are many situations in which someone with a mental illness encounters the police and where the MHA power would not be the only one available. Very often it may be possible to arrest for a criminal offence or detain the person to prevent a Breach of the Peace.  As such, to understand police decision-making in arrest encounters, you need to understand how a police force’s use of the MHA fits in to their other detention and non-detention decisions. This is something that is not massively researched: how many people in a police area who are arrested for offences are subsequently assessed under the MHA because of serious concerns about their mental health?  – and of those, how many were arrested in public places where s136 would have been an available option; how many were in situations where it should have been obvious the person was potentially suffering from a mental disorder?!

But the other reason Mike PENNING’s answer is interesting, is because of an example he gives from his own experience –

When I was out on patrol with the Metropolitan police in Camden, we went to what the neighbours described as a “domestic situation”; in other words, someone had allegedly been assaulted. When we arrived at and eventually got into the flat, the one thing that the person who had been assaulted desperately did not want was for their loved one to be arrested and taken to a prison cell, because they were ill. They were ill in a similar way to someone who had broken their leg or who had a medical illness. They were ill and they needed to go to a suitable place of safety.

All too often over the years, that person would have been arrested and ended up in a police cell. If they were not subject to section 136, they would not necessarily have the safeguard of being seen by a medical or psychiatric specialist. That is one of the reasons why the amount of time that someone with a mental illness can be kept in a police cell is massively restricted by legislation.

Is this not precisely what Sir Paul BERESFORD is getting at?! – Mr PENNING witnessed police attendance in private premises at a reported assault which involved a family member seeking help for their loved one who was ill. Yet the Metropolitan Police could not detain the man under the Mental Health Act and quickly access specialist support. Instead they could either arrest him for the alleged offence or not detain him at all and risk a further escalation of the situation which had already resulted in one person being hurt. On which health service could they call for an alternative response, that is available in timely way, 24/7?

WICKED PROBLEMS

This is why I find this whole debate quite infuriating, if I’m honest – everyone seems to accept that there is a legitimate and quite wicked public policy problem ensuring effective responses to vulnerable people who are unwell in private premises. We know that street triage type initiatives can address just some, and by no means all, of those situations and that leaves the others. As Sir Paul makes clear from the fatal incident he refers to, the stakes are quite high. So you can either have a health and / or social care-led response to safeguarding people in distress; or you can enable the police to take protective action, like in most other countries, accepting that this brings a lot of unintended risks and consequences.

We know that it will lead to reliance by the health system upon the police as a resilience or contingency option, when crisis or community mental health teams are unable to cope with demand – we’ve seen that happen to some street triage schemes. We also know that it carries risks as far as patients are concerned – apart from the obvious point of making people feel criminalised by over-exposure to the police, there is also recent research about how suicide risks can be raised by contact with the criminal justice system, even after allowing for other factors.

I’m not a fan of the idea that we extend police powers and understand why Mike PENNING is nervous about it: but it’s pointless just having half a debate. If this is not the answer to the problem that we agree is very real and not getting better, it is incumbent upon those who are saying “No!” to actually solve the problem. If they don’t, it seems nothing other than totally predictable that some officers, acting in accordance with the law of England, will refer their concerns about the immediately vulnerability of patients to mental health services, invoke as much informal safeguarding as family, neighbours or the community can give and hope it is enough.

We know it won’t always be.

 


IMG_0053IMG_0052Winner of the President’sMedal from the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award