law

Just Imagine …

Just imagine if you confidently knew your powers of entry when asked to locate and return a patient who is AWOL under the Mental Health Act 1983? – because if you knew the Act contained no power of entry without warrant, you would know that after knocking on a door, you had no right to then try the handle and enter the premises … then, you would not have found yourself involved in a restraint related incident in which an AWOL patient died and which then led to you being prosecuted in the criminal courts for wilful alleged neglect with all the disciplinary issues that flow from that and an inquest which found that your actions ‘more than minimally contributed’ to the patient’s death.  It’s a relatively simple point and incidentally one which was made very clear in 1992 when the case of D’SOUZA v DPP (1992) saw the police successfully challenged for seeking to rely upon s17 of PACE to justify entry to a premises when the law demanded that a warrant under s135(2) MHA.  The nugget of legal knowledge on the part of a frontline cop could have prevented all of that.

Just imagine you assertively understood the Mental Capacity Act was something you could rely on legally to defend your actions in forcing an unwell, alcoholic man to hospital after paramedics and his GP expressed concern that he could have a bleed on the brain and that he may well very seriously deteriorate?  Imagine if the paramedics had taken your refusal as your final answer on the subject and left the patient at home because he was too aggressive and resistant to do otherwise, not showing significant tenacity in working to overcome the obstacle you had come to represent … imagine knowing that it was only this paramedic’s determination to push beyond your refusal that prevented an IPCC contact death inquiry which would reveal you didn’t understand the legal frameworks you worked within and that the paramedic was utterly vindicated in pushing you professionally after the patient’s arrival in the hospital because he deteriorate so significantly that they ended up in an Intensive Care Unit in a critical condition.  He would probably have died at home, overnight.

I could go on.  In fact, I think I will ….

Just imagine you felt so despondent at the response of your local ambulance service after you detain people under s136 of the Mental Health Act that you stopped bothering to call for them because it was a waste of time?  Imagine if the vaguely confused man you had detained had been popped in a police vehicle for conveyance to the local mental health unit or police station and off you went, without trying or waiting for an ambulance.  Imagine you were just going into the building when he collapsed, unconscious because he actually wasn’t mentally ill at all, but someone with undiagnosed diabetes whose blood sugar was nowhere near normal after a day without food and a couple of beers at lunchtime … imagine if, by the time the ambulance got to custody or the MH unit, the wait had been too long to allow paramedics to start getting a clinical grip on the situation and that by the time he’d arrived in A&E the consultant was now managing an unconscious patient who was seriously unwell.  I wonder what the IPCC would think about the disregard of chapter 11 of the Code of Practice (2008) which will be chapter 17 of the Code of Practice (2015).

I think the point is made and trust me, I could go on.  And on …

Legal knowledge is important, for all of the reasons that these three examples highlight.  They are real examples, in case you were wondering!  The most basic level of legal knowledge that I suspect frontline officers need to have held in their head is all contained in just one post I wrote and which is not even 500 words in length. It is even in bullet point format to make it extra easy and at the risk of sounding dramatic, it may well actually save your career and even ensure your ongoing liberty to live your life – so it’s probably worth a giving it a read and committing it to memory.  Try and encourage your colleagues to do the same – because the above examples are just a few of those that I find where we’ve gone awry for the lack of a little knowledge and some persistence!

So just imagine how you would feel if you only realised afterwards how little you needed to know to prevent something going so very badly wrong?!

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The Mental Health Cop blog

Badgewon the ConnectedCOPS ‘Top Cop’ Award for leveraging social media in policing.
won the Digital Media Award from the UK’s leading mental health charity, Mind
– won a World of Mentalists #TWIMAward for the best in mental health blogs

ccawards2013 was highlighted by the Independent Commission on Policing & Mental Health
– was referenced in the UK Parliamentary debate on Policing & Mental Health
was commended by the Home Affairs Select Committee of the UK Parliament.

MP

PD v Chief Constable of Merseyside

Does anything get any more complicated and sensitive than the issue of whether, when and how police officers could strip search a child of all their clothing whilst they are in police custody, without waiting for a parent or guardian and when they are intoxicated, violent and with a background of self-harm and mental distress?  Article 8 of the European Convention covers the right to a private and family life and this week, the Appeal Court ruled that there was no violation of a 14yr old girl’s rights after she was strip searched in police custody.

Merseyside Police arrested a young woman for being drunk and disorderly in a public place after a complaint from takeaway staff about abusive behaviour.  The young woman was aggressive and resistant upon her arrest and was handcuffed.  During her journey to the station, she continued to abuse the officers and she was further restrained when she appeared to be about to spit at the officers, instead she kicked out at them as she was brought into the custody office.  The custody sergeant was able to ascertain that the girl had been arrested on a previous occasion and it had been necessary to use leg restraints on arrest and to remove her clothing to prevent her from using it to hurt herself whilst detained. On this occasion, the custody officer felt that there was an urgent necessity to remove those items from her that would be used to cause herself harm so the male police officers who had arrested her removed to her a private room where two female detention officers and a female police officer took control of the ‘strip search’ which the custody sergeant had authorised.  Her clothing and body jewellery were removed and she was provided with something described as a safety gown, to ensure she did not remain naked after the clothing had been taken. All of this happened before a parent or guardian had even been notified of her arrest.

The young woman brought up various legal issues in the original court case, including a failure to adhere to the Mental Capacity Act and disability discrimination in addition to claims of excessive use of force and breaches of Code C to the Code of Practice to PACE which would amount to an Article 8 ECHR violation.  Having lost that original case, this Appeal focussed on issues around the Code of Practice and Article 8 – the strip search in custody and technicalities about whether Annex A of Code C to the Code of Practice applied.

SEARCH AFTER ARREST

The Police and Criminal Evidence Act 1984 covers searching after arrest – the police have a duty to assess what a detained person has in their possession and to take a variety of decisions about it.  This would cover the safekeeping of certain items (like money), anything that may be evidence of an offence and of course, seizure until release of any item that could cause harm to the detainee or others.  When detainees are searched, they can only be required to remove their ‘outer clothing’ – which can include jacket, hat, gloves and shoes.  Anything more than that and it is what the law calls a ‘strip search’.  Unsurprisingly, there are extra safeguards in place for anyone who is strip searched and even more for children and vulnerable adults.  Any strip search must be conducted by at least two officers of the same sex as the detainee, in a private room and the conduct of the search should be done as sensitively as possible whilst ensuring that the detainee is not fully naked at any stage.  Typically, officers would require someone to remove their upper clothing first, before replacing it and removing their lower clothing.  Anything found during the search can be seized if the criteria in s54(4) PACE are satisfied.

One difficulty in this case, is that it was the clothing itself that was believed to be the thing likely to cause harm.  In fairness to these officers, most of us have experience of people in custody being quite determined to harm themselves or the police officers who have arrested or detained them – I’m not going to list the various things that have been tried.  Suffice to say, most officers would agree that the only way to stop some people from using their clothing inventively is to remove it from them, completely.  This was one of the legal points under debate in this case and the Court of Appeal have now clarified it for us.  Merseyside Police were not ‘searching’ for items that they thought the girl had secreted about her clothing, but seizing her clothing.  As such there was debate about whether Annex A applied to this incident – you can find Annex A on p50 of the Code of Practice.  Merseyside Police had originally argued that they weren’t ‘searching’ per se, but removing clothing.  Therefore, do the various safeguards of Annex A apply? This is relevant to the overall Article 8 ECHR challenge because everyone agreed that strip searching someone does interfere with Article 8 rights and therefore it can only occur in a process determined in law.  The Code of Practice would suffice for this purpose, but if the Code did not apply to this particular incident – seizure rather than search – then it could represent a human rights violation.

A final point from the case about appropriate adults:  anyone under the age of 18 is entitled to be supported in custody by an appropriate adult which would normally be the parent or guardian of a child under arrest.  Where possible, strip searching should be delayed until the arrival of the appropriate adult so that they may decide whether or not they should be present during the process.  In these circumstances, the custody officer had pressed on without waiting and this is something that caused the judges to express their concern, notwithstanding their ruling that the police acted lawfully and that everyone accepted they did so with the best intentions to safeguard this young woman exhibiting very challenging behaviour.  Their ruling argued that Annex A does apply to a process that is intended purely to seize clothing, rather than to look for other items.

As such, seizure of clothing is a strip search for the purposes of PACE, Annex A does apply and this does represent an interference with the detainees Article 8 human rights.  That said, it was a justified, proportionate intervention prescribed in law. I’ve given some thought to the judges’ concern that this was done immediately after arrival and can only imagine that they may be hinting at whether or not the detainee could be kept under constant 1:1 observations – or even 2:1 – until such time as the girl’s parent / guardian could be contacted and an arrival time estimated?  Perhaps the judges would have had less concern if she had been kept in handcuffs pending the arrival of an appropriate adult and then searched?  What seems clear, is that their concern about the steps taken did not prevent them from finding that Merseyside Police had acted lawfully and with the correct intentions to keep this young woman safe.  The full Court of Appeal judgment in this case is not overly long and I would particularly encourage all custody sergeants and duty inspectors to read it, in full.

FINAL THOUGHTS

I want to finish with an observation of my own that wasn’t mentioned in court – which may indicate no-one was concerned about it.  But if this young woman had been detained under s136 of the Mental Health Act, would we look at this case differently?  Perhaps the arresting officers saw intoxication and abusive, disorderly conduct and did not have time to find out more information or check background before acting – I’m speculating here, because I don’t know.  But if they had known this young woman’s background at the point of making the detention decision, would they have opted for section 136?  It suspect it’s likely.  Does this alter how we see the case?  If we return to the Code of Practice, para 9.5 demands that the custody officer consider whether or not the detainee can receive appropriate clinical attention for physical or mental disorder.  It seems obvious that this girl was highly distressed by her experience once arrested – she began pulling out her own hair and banging her head off the wall of the cell.  At what point does such mental distress become so serious as to warrant removal to hospital?

Given her arrest by the police was for a suspected criminal offence, the only hospital to which she could be removed would be A&E.  A mental health ‘Place of Safety’ would be highly unlikely to agree to receive her because she was not detained under the Mental Health Act, although it would be lawful for them to receive someone transferred under PACE.  So the broader questions here about our social responses to mental distress when it is mixed with presentations which amount to offences are about whether a decision taken by a police officer in a hurry, without access to all relevant information, should be the thing that determines our ability to ensure a safe environment for someone in extreme mental distress.  If this girl’s clothes were removed and she continued to self-harm, the only real way to stop that is to physically stop her from doing so – restraint, possibly handcuffs.  We know that doing this on a prolonged basis will take us towards ‘medical emergency’ territory but it was only yesterday that I was receiving questions on Twitter from an ED doctor about the removeal of drunk and aggressive ‘patients’ to hospital.  Does drunk, aggressive and mentally distressed change anything about what our response should be?  And what if it is a child, who deserves extra protections, by domestic, European and international law?

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The Mental Health Cop blog

Badgewon the ConnectedCOPS ‘Top Cop’ Award for leveraging social media in policing.
won the Digital Media Award from the UK’s leading mental health charity, Mind
– won a World of Mentalists #TWIMAward for the best in mental health blogs

ccawards2013 was highlighted by the Independent Commission on Policing & Mental Health
– was referenced in the UK Parliamentary debate on Policing & Mental Health
was commended by the Home Affairs Select Committee of the UK Parliament.

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Team Talking

We now seem to have a real ball rolling, pushing back against various kinds of demands that the police have been inappropriately facing. I’m always happy to learn that officers and staff have built the knowledge or confidence to question things more or push back a little bit, where appropriate. This is partly about ensuring that vulnerable people aren’t criminalised by inappropriate involvement of the police and partly about ensuring that police officers don’t find themselves having to answer questions to which there aren’t any particularly easy answers about why they were doing things they shouldn’t be doing.

But there is a danger here and this is what I want to explore here -

We need to be sure that in our new-found confidence, we don’t push back too far, declining or refusing to do things in circumstances where people are left at risk. We need to be sure that when control rooms supervisors are contemplating a decision, that it is reached after knowing as much as is necessary to ensure the decision is informed. There are also duties for our partners and colleagues here too – you need to ensure police officers are fully informed of the reasons for requests.

DO AS YOU’RE TOLD!

I often have the chance to talk to groups of paramedics and did so recently. I was told in advance of one such input that the group were keen to explore why the police don’t do as they’re asked when paramedics have had to take decisions connected to someone’s mental capacity. This usually means an incapacity to take an informed decision about declining medical care. So here are two circumstances from my experience: one connected to insufficient information from paramedics and one connected to refusal by the police to assist in circumstances where it would have to be wondered how else someone would be safeguarded.

A middle aged woman who has been drinking has dialled 999 after falling down the stairs and hitting her head. Paramedics attend to her and by the time they’ve arrived she no longer wishes to receive medical care and won’t say much about how the incident has happened. There is no external indication of trauma but she does appear slightly confused and disoriented, which may be caused by her alcohol consumption, but it’s hard to tell. She can’t be safely described as ‘drunk’, but has had a few. Paramedic tries to explain if she’s fallen the whole height and length of the stairs and hit her head, it could have generated a very serious injury but by now abuse is starting to flow. Paramedics asks for the police to be contacted to coerce this lady to hospital. Upon the arrival of the police officers their briefing is, “She’s fallen and hit her head and needs to go to hospital because she’s been drinking and lacks capacity.”

This is not enough information for the officer to be confident that such action would be legal and should be declined unless more is forthcoming. What does she lack capacity for, what are the implications of doing nothing: why is this action consistent with providing a life-sustaining intervention or preventing a serious deterioration in her condition? These questions are based upon the MCA itself, in particular the section on restraint (section 6) and the one on urgent deprivations of liberty (Section 4B). This is what the police would need to be able to justify so it needs to be explained as part of the request.

DO SOMETHING!

Do you remember the scene in Zulu when one of the soldiers, contemplating the overwhelming numbers about to attack them asked Colour Sergeant BOURNE why they were the ones who had to fight this battle. “Because we’re here, lad!” came the straight-faced retort. In many respects the answer is the same about why the police are often drafted into situations which we would prefer to have been handled before they became crisis incidents or before there were a limited number of blunt options to address a complicated sensitive situation. It brings us back to BITTNER’s description that policing is what happens “when something’s happening that ought not to be happening about which somebody ought to do something now!”

We would probably all prefer to live and work in a world where the health service and our social care system would always have sufficient resources to ensure that where patients lack capacity to consent to treatment or make broader decisions about their lives, any restriction or deprivation of liberty and / or any use of force that were required could always be therapeutically delivered by trained professionals, wherever is was required. My only observation is: that’s not the world I police. So it is with some awkwardness that I learn examples like this —

An adult man with alcohol addiction problems is in contact with paramedics who have been called by a GP. His presentation is concerning to them and queries are being raised about whether he has a bleed on the brain. Discussion has occurred with a hospital consultant who has previously treated him who agrees the situation is serious and that he needs to be in hospital. It is considered necessary to prevent a serious deterioration in his condition and having explained at length their concerns, the man is declining medical treatment. The conversation fails to convince the paramedics that he has capacity to take this decision and he is aggressive and threatening, through his confusion at the idea of being hospitalised. He is suffering an impairment of disturbance of the mind or brain (the presentation indicates a potential brain bleed and he’s consumed alcohol today – his manner is confused and disoriented.) He appears unable to understand the information being presented to him or to retain and employ it. However, the police have repeatedly refused to attend this incident saying it is “a medical matter” and that the paramedics should sedate him. Interesting!

WORKING TOGETHER

At this time, our pendulum is swinging from the start of the century where two-thirds of detainees under s136 went to custody, where PoS provision was limited and where demands around mental health or capacity laws were limited. Indeed, we had no Mental Capacity Act until I was an inspector and these kinds of jobs just ‘got done’ where they occurred. I’ve wondered for a while whether or not a combination of the newer legal frameworks, confusing as they can be, with the drive to better manage the kinds of demands we’ve seen increasing over the last ten years now means we’re over thinking this?! “Big bloke with a brain bleed who’s been drinking; might seriously deteriorate or die if untreated; aggressively resisting paramedics who can’t physically make him go – can we send a couple of PCs to get him shifted for his own sake?” It used to happen fairly straight-forwardly because it’s something that just needs to happen.

Of course, now there are these legal structures to navigate – my view about the police reliance upon the MCA to justify restraint or coercion is that officers need to understand sections 6 and 4B before acting. And they also need to have tried and failed the other ways of approaching things, accepting that paramedics will often have done so first. But if my colleagues in Green are asking for someone to be removed to hospital ‘under the Mental Capacity Act’, then I need a briefing that let’s me know the following things -

  1. What does this person lack capacity for
  2. Why does he lack capacity
  3. What else could be done that does not involve restraint or removal?
  4. Why is this intervention ‘life-sustaining’ or something that will ‘prevent a serious deterioration in their condition’?

Without knowing all of that, the officer cannot be sure that they are acting lawfully. In that respect it’s no different to me telling a police constable, “Nick that bloke for burglary.” With such information, the officer would be obliged to say ‘no’ – not until I’d given them sufficient information. “That man’s blood was recovered from [an address] where a burglary took place last week and it is now suspected he was involved in the offence – nick him for burglary.” Now we’re talking!
____________________________________________________________________
The Mental Health Cop blog

Badgewon the ConnectedCOPS ‘Top Cop’ Award for leveraging social media in policing.
won the Digital Media Award from the UK’s leading mental health charity, Mind
– won a World of Mentalists #TWIMAward for the best in mental health blogs

ccawards2013 was highlighted by the Independent Commission on Policing & Mental Health
– was referenced in the UK Parliamentary debate on Policing & Mental Health
was commended by the Home Affairs Select Committee of the UK Parliament.