Thirty Minute Checks

In December 2017, the Policing and Crime Act 2017 (PACA) amended the Mental Health Act 1983 (MHA). The newly amended Act allows for the Secretary of State to make Regulations about Place of Safety provision, in particular the use of police stations as a Place of Safety under the Act. The Mental Health Act (Place of Safety) Regulations 2017 are quite short and they essentially specify just a three things: a) the grounds for using a police station for an adult detained under s136 MHA (children are entirely banned from custody); b) those standards of clinical oversight which must be maintained whilst someone is held at a police station; and c) the additional professionals with whom police may also consult prior to detaining someone under s136 MHA.

These Regulations are summarised in the series of posts I did on the changes and this particular post follows two separate queries this week, touching upon just one aspect of them – it’s something which also caused discussion and debate as soon as these things were published in late October 2017.

Regulation 4 states –

A custody officer at the police station must ensure that—

(a) the welfare of the detained adult (“D”) is checked by a healthcare professional at least once every thirty minutes, and any appropriate action is taken for the treatment and care of D, and

(b) so far as is reasonably practicable, a healthcare professional is present and available to D throughout the period in which D is detained at the police station.

WHO’S RESPONSIBILITY?!

So the main question tends to be: which organisation is responsible for ensuring that these 30 minutes checks can take place. And spoiler alert early on: none of them are.

The queries came this week because a police force and their healthcare partners were in disagreement over this point. On the one hand the argument goes that healthcare in police custody is not commissioned by the NHS, so the Chief Constable must ensure that these Regulations can be complied with. The problem with this argument is that some healthcare in police custody actually is commissioned by the NHS – Liaison and Diversion services cover over 80% of the population of England, but they’re not specifically commissioned to ensure 30 minute checks on s136 detainees. They could be, but they’re not! On the other hand, Chief Constables may rightly point out that everything in policy is pointing towards eliminating the use of police custody entirely and that some forces have already managed to achieve this with their partners – so why would the Chief commission their private healthcare provider at considerable cost, to make it easier to rely upon the police to handle difficult cases.

This debate alludes to another Zombie-fact that keeps emerging: some people really do still believe that there will always be just some vulnerable but highly challenging detainees who will need to be removed to police custody because no healthcare setting will be able to ‘handle’ their behaviour. This is ridiculous in my view and I’ve rehearsed the argument elsewhere as to why the hypothesis most usually described when this assertion is put forward are precisely those people most in need of being taken to a healthcare setting. And this is not just my view: history and clinical guidelines support the idea that there is no way on this earth a police officer or pre-hospital clinician could tell at a scene whether highly challenging behaviour requiring restraint could be a life-threatening ABD-type emergency AND restraint heightens risk, even if it’s not and can cause its own problems, even if it’s objectively unavoidable.

GETTING OVER IT

Those of you who followed the parliamentary debate on PACA will remember that amendments were introduced, then withdrawn, which sought to bring about a total ban on use of police stations, something since recommended again by both the Angiolini Review and the Wessely Review. Until then, the near-total ban we have will have to do – adults can still be detained in exceptional circumstances, as defined in Regulation 2, as long as whilst held in custody they can be checked every half-hour by a healthcare professional. If this cannot occur, then the custody officer is obliged by Regulation 4 to transfer the person from police custody to another kind of Place of Safety.

Nothing in the amended Mental Health Act or the 2017 Regulations specifies which organisation must ensure this capacity to complete half-hour welfare checks – and if no-one is prepared to ensure it can, it simply means your local policing environments cannot be relied upon at all. A de facto ban, if you like. I’ve said before: as a duty inspector whose authority is required under the 2017 Regulations to use a police station as a Place of Safety, I would never, ever give it – even where the other criteria were satisfied. I’ve also written about that before, in a blog specifically aimed at my fellow inspectors –

• Nothing at all obliges inspectors to authorise use of a police station just because the other criteria appear to be satisfied;
• I’d argue that my own willingness to afford resources to prioritise the person’s safe removal and detention in a healthcare setting, would obviate the argument on the detaining officer’s part that the Regulation 2(1)(a)(ii) was satisfied.
• I would also argue that welfare checks more frequent that 30 minutes are required if active restraint is ongoing.
• And I’d also argue, frankly, that detention of people in gaol under the mental health law is a legacy of Victorian times and we should grow up and get over ourselves:
• If want to show we’ve learned lessons from the death of Sean Rigg, Michael Powell, Terry Smith, James Herbert and Leon Briggs, amongst others (apologies for not naming all victims – but they’re are just too many), then we need to STOP DOING precisely what lead to their deaths.
• If I were a Chief Constable or i asked by a Chief Constable, I’d recommend they do not commission capacity to ensure this – it’s far too risky; and one of your colleagues is corporately charged before criminal court at the moment in connection with a death in less than 30 minutes.
• How can we look families in the face? I’ve been lucky enough to meet and discuss this stuff with several of them and amongst other concerns, they simply can’t believe that their relatives weren’t either recognised or treated as the medical emergency they undoubtedly were. We need to stop finding excuses for not doing what we know to be the right thing because of the preferences of other organisations to set aside lessons they didn’t have to learn the hard way and guidelines in their own professions they must not fully understand.
• This is going to happen one day, so why not just get over ourselves and get on with it?!

THOUGHT FOR THE DAY

I’ll leave you with this quite incidental observation: have you ever wondered at the curious overall impact of these laws, as amended? – it’s totally unacceptable to have someone in police custody with officers even if a healthcare professional is going check their welfare every hour – but it would be quite acceptable to have someone in a healthcare PoS which is entirely unstaffed and no clinical oversight?!

Perhaps that’s the problem here? – we have nationally agreed standards on the use and operation of Section 136 of the Mental Health Act; they’ve existed for more than a decade; were last updated in 2011 and since then have been supplemented by additional guidance for NHS Commissioners, in 2013. And yet nowhere delivers against them – nowhere! Birmingham gets very close, no doubt other areas too – but in some parts of England and Wales, the health-based Place of Safety is an empty room in to which the police are admitted via key codes. If they’re really lucky, there will be a nurse from a nearby mental health ward who gives the patient a once over at the door or in the car park (yes, really!) to determine whether they fit the NHS’s own criteria for access. Exclusion criteria often still include drugs, alcohol or violent behaviour, however, as we’ve seen challenges to those exclusions over the last 10yrs from the CQC and in the Code of Practice, the newly emerging argument for denial of access is a requirement (whatever this means) to have the person ‘medically cleared’.

If one of my favourite psychiatrists is reading this: I hope your blood pressure is OK at the mention of this! One mention of ‘medically cleared’ and the poor chap looks quite deflated as he has to start patiently explaining again and in measured terms why this is a clinically meaningless term and a procedurally wasteful approach. But that’s another feature of the real problem: we are trying far too hard to resist ensuring proper Place of Safety provision that meets demand and does not – ever – exclude people to gaol. That’s why we’re probably going to find legislation brings about a total ban, as recommended by Professor Wessely in his review. History shows this will not otherwise be achieved.

The reason the police are not obliged to ensure capacity for 30 minute welfare checks? – probably because there are few credible views on the idea that using custody is a good idea even if this kind of oversight were possible.

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Winner of the President’s Medal,
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award

 

All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2019

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I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current.  Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.

Government legislation website – www.legislation.gov.uk

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