humanrights

Mental Health & International Law

When I woke up this morning, I was greated with a familiar message on Twitter from a duty inspector: “We have a male who has been sectioned under 2 MHA but they say there’s no bed.  He’s been here all night and no word of any bed today.  Can they do this and just expect us to lock him up?”  I sent back the hyperlink to a BLOG I wrote three years ago and sent some advice on escalating the incident to senior police officers and trying to do so to senior health managers.  The duty inspector then added that he’d been told there were “no mental health beds in England” and that they were having to try and ensure this guy’s wellbeing whilst knowing perfectly well he should be in hospital. A lot of NHS telephones seemed to be turned off during office hours, from what he reported back and he was told by one nurse during the process that “the other inspectors turn a blind eye.”  That’s almost an incitement to corruption and false imprisonment – right there, folks!

So off we go again: this kind of situation is the single most common kind of problem incident I am contacted about at the College of Policing.  It occurs way more often than weekly, on average two or three times a week; and of course, those are only the examples which people flag up or where they seek advice in resolving the problem.  Who knows how many people are just cracking on and trying their best without telling me – most of them, I’d imagine. Of course the first thing is to recognise that there is a problem to face: in the scenario, as flagged up this morning, the person in police custody will usually not be ‘sectioned’ under the Act. It’s a common myth that when a Mental Health Act assessment concludes with the news “He needs admission under s2 MHA” that the legalities kick in from that point. In fact, a person becomes ‘sectioned’ at the point where an Approved Mental Health Professional makes a written application for admission to a specified mental health unit and if there is no obviously available bed, then the application won’t have been made.

That means the person in custody remains there, subject to whatever legal framework brought them in originally. If that was an arrest following an allegation of a criminal offenc, then PACE governs detention and it’s a case of either prosecute the person or release them from custody, with or without bail depending on whether the investigation will continue whilst that person is in hospital.  There is a police force in England being sued in connection with exactly this kind of problem, so where does the liability sit if the police were doing their best to ensure the safety of someone whilst the AMHP, CCG and / or MH trust were – between themselves and for whatever reasons – unable to comply with the obvious legal duties that rest upon them?

BEDS CRISIS

In 2015, the Royal College of Psychiatrists launched an independent commission of inquiry chaired by former Chief Executive of the NHS, Lord CRISP. I was privileged to be one of the commissioners supporting that work and we looked at the question of whether there were sufficient acute inpatient beds for adults in England. It was obvious from just the first meeting of the commissioners that the answer was not going to be a simple ‘Yes’ or ‘No’ – whether or not a particular area has sufficient supply of inpatient provision was often connected to whether or not they had the correct balance of alternatives to hospital admission. There were many mental health trusts where they rarely, if ever, sent patients out of their trust’s area to another mental health trust and never used inpatient provision in the private sector. Other trusts did one or both of these things with varying degrees of frequency and often believed that they didn’t have enough beds.

So the commission found that in addition to 16% of patients in hospital not needing to be there in the first place; they also found 16% who were medically fit for discharge but could not yet leave because there were shortcomings in post-hospital support. That may have been something to do with housing, benefits or drug and alcohol support, but it prevented discharge.  But whatever the reason, if a patient has become acute unwell enough to require admission and no bed is available, then you don’t have enough beds at that time, irregardless of whether the real problem is difficulties in community or crisis provision, alternatives to hospital or problems discharging others once medically fit.

So do we have a beds problem? – depends on whether you think there is still scope to deinstitutionalise our mental health system to community provision, or whether that balance has been reached. For what it’s worth, I think there is still room to deinsititionalise but that the real reason ‘care in the community’ hasn’t worked, is because it hasn’t been properly tried yet. And I suspect we’d find if we looked at it, we’ve disinvested in community mental health services about as much as we’ve cut inpatient mental health beds over the last few years.

SECTION 140 MHA

Connected to all of this, I recently bashed off a number of Freedom of Information requests to Clinical Commissioning Groups in England, asking about section 140 MHA.  I’ve done this before.  This section imposes a legal duty – ie, it is compulsory – on CCGs to specify those hospitals in their area which are in a position to receive patients in circumstances of special urgency; and those which are specified to receive patients under the age of 18yrs. In total, I did another two dozen FoIs – that’s in addition to the three dozen I did about two years ago.  I asked again for the names of the hospitals that had been specified for the ‘urgent admissions’ purpose; and whether or not anything was done in commissioning to ensure those hospitals were run in such a way as to ensure available capacity for urgent admissions, for example, operating at the 85% threshold recommended by the Royal College of Psychiatrists. One difference between my first and second batch of FoIs is that during the intervening period, the Code of Practice to the Mental Health Act has been updated and republished, now making specific mention (para 14.74) of the duties on CCGs under section 140.

The replies made for very depressing reading: over half of the respondents said, “We do not hold this information – please contact the Mental Health Trust.”  Why would a mental health trust hold information about how a CCG had discharged a legal duty that rests not with them, but with the CCG itself? Even if the MH trust did know the answer, you would imagine the CCG would have to retain a record of it in case of things like … Freedom of Information requests – or NHS England inquiries.  It’s seemed to me a bit like someone writing to the Chief Constbale to ask something to do with the use of police powers under the Children Act 1989 and the reply saying nothing more than, “Contact social services.”  I’m therefore forced to conclude again, that CCGs aren’t complying with their legal obligations under the Act to even know about this section or what it means, never mind to actually commission services in such a way as to give effect to its intentions.

Finally, even those CCGs who could send me the name of a hospital, there was nothing happening to ensure the hospital operated in such a way to mean it actually did stand a chance of consistently being able to ensure the admission of a patient in urgent need, as per the ruling in the MS v UK case (2012). So I have to conclude that the deliberate decisions being made about the commissioning of public mental health services are being taken by people who often don’t know about the obligations that international law inflicts upon how the services need to be able to operate.

INTERNATIONAL LAW

So this gets us back to the broader, positive duties on public authorities including CCGs and mental health trusts, to ensure the European Convention rights of those in contact with the UK’s state agencies.  The caselaw of the European Court tells us that failing to expedite the admission to hospital of people detained lawfully in police custody can amount to an article 3 violation; it tells us that detaining people in settings not intended for the purpose that sits behind their detention can amount to an article 5 violation and we already knew that there is a more obvious article 5 problem if someone is detained somewhere in circumstances where domestic law does not allow for it.

Imagine if the police had arrested a man for an offence and were found out that he was acutely I’ll with a physical health condition: let’s say he was found to have serious cardiac probelms. Imagine if the Force Medical Examiner attended custody and said, “this man needs to be admitted to hospital for care!” He wouldn’t stay in police custody until that admission could be organised – he’d be transferred to A&E to begin to ensure his wellbeing and more appropriate monitoring of his condition. It may be that A&E isn’t appropriate for someone with a mental health condition, but why not transfer someone to a health-based Place of Safety, for example? All of this hits the buffers of capacity and provision, obviously – but we should have some idea of what we’re trying to do here, especially if the current arrangements are so unacceptable. And unlawful.

From just a bit of dip-sampling that was far from being anything I’d pretend to call research, it is a massive under-estimate to suggest that these kinds of problems occur about ten times a day in England – that’s over three and a half thousand times a year we’re subjecting people to the indignity of custody when we’ve already determined they are so unwell as to need inpatient admission. If almost all of them did amount to a human rights violation, as well as to a personal tragedy for those affected, it needs urgently examining, at the most senior levels of the health service because this stuff is not just a bad thing, it’s almost certainly unlawful.

I’d hate to think about how the expectations of the UN Convention on the Rights of Persons With Disabilities hits these scenarios – I could easily imagine some senior figures would probably faint.

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