The police are often the first point of contact for vulnerable persons in situations of crisis and a large proportion of people who are arrested suffer from serious mental illness. Police officers are therefore responsible for an initial assessment of a mentally disordered individual’s needs and for ensuring that they receive care from mental health professionals. This is a challenging task for the police, both in practical and legal terms. Inspector Brown points out that it is important for police officers to have a condition-specific awareness in order to take the right approach in communicating with and responding to mentally vulnerable individuals. For example, they should be able to determine if a person has Autism or Alzheimer’s disease and to recognise if a person is psychotic as psychoses often have an underlying physical cause which requires treatment in A&E rather than in mental health services. The police also operate within a complex legal framework. The relevant legislation for the link between policing and mental health are the Police and Criminal Evidence Act 1984 (PACE) and the Mental Health Act 1983 (MHA), yet it is often unclear as to how they interrelate. Nevertheless, in many cases, police officers have no time to carefully assess the legal situation and must decide quickly whether to criminalise a person. Considering this demanding environment, it seems insufficient that police officers receive only up to eight hours of training on mental health issues and law.
The importance of a correct understanding of and response to crisis events related to mental illness becomes particularly clear considering the potentially fatal consequences of improper conduct. Unfortunately, incidents regularly occur where a person dies following police contact and during police custody, sometimes while being actively restrained. According to Inspector Brown, there are around 14-17 cases like this in the West Midlands in a typical year. In England and Wales, the number of deaths following police contact was at its highest for a decade in 2017/18 with 283 cases. Research by the Independent Office for Police Conduct (IOPC) showed that more than half of those who died had known mental health concerns. These cases raise questions not only regarding the officers’ recognition of the impact of restraint and how restraint is medically managed, but also on the appropriate role of the ambulance service, the A&E department, and the relationship between the police and mental health services. Inspector Brown suggests that the figures relating to ‘deaths following police contact’ can be misleading insofar as they do not necessarily imply improper police conduct. Persons that died following police contact will have often had contact with other state agencies, particularly health services. For example, it is possible that a person, having been detained by the police and assessed by a mental health professional, dies after being discharged from the hospital with the promise of follow up mental health care (or indeed sometimes without any follow up at all). In the relevant academic literature, these cases are therefore more precisely referred to as ‘deaths after multi-agency involvement’.
When deaths occur within a mental health setting, a challenge to the effective investigation of the incident by the police is their relationship to the mental health service. It is frequently stressed by the government that public services need to work in partnership. While it is certainly important for the police and the mental health service to cooperate in an effective way, Inspector Brown argues that a relationship that is too close can be counterproductive for upholding patients’ rights and safety. He illustrates this with the case of the Winterbourne View hospital abuse where patients with learning disabilities contacted the police service and reported the ongoing abuse by hospital staff but were ignored because police officers found the reasons given by staff more plausible. Inspector Brown, therefore, raises the point that there is no independent investigative body for deaths that occur in mental health detention, in contrast to incidents in prison where there is the prison ombudsman, and in police custody where the IOPC investigates. Deaths within mental health units will only be investigated by police if they are reported to the coroner. Thus, Inspector Brown questions whether the police are in fact adequately trained to investigate in care settings where complex medical issues have to be examined.
The main statutory power for police responding to a vulnerable person in crisis is section 136 of the MHA. This allows for the removal of a person who is believed to be mentally disordered and ‘in immediate need of care and control’ from a public place to a ‘place of safety’—if less restrictive alternatives are insufficient. In earlier versions of the MHA, a ‘place of safety’ used to be defined as ‘a hospital, a police station or anywhere else temporarily willing’ to receive the person. According to Inspector Brown, this definition was interpreted by several A&E departments as meaning that the ‘temporarily willing’ part also applied to hospitals. Therefore, mentally disordered persons used to be turned away by A&E departments on the grounds that they were not ‘temporarily willing’ to receive them. Consequently, just the West Midlands Police alone was detaining some 1,000 people a year under section 136 as in many cases the only alternative to A&E was police custody. According to research undertaken by the former Independent Police Complaints Commission, 17,400 persons were detained under section 136 on a national level in 2005/06, of which two-thirds were held in police custody and only one-third in hospitals. Thanks to recent amendments to the MHA, this problem has been reduced significantly. Today, little more than two per cent of the 28,000 people detained under section 136 go to a criminal justice setting. However, according to Inspector Brown the division of responsibility between health and police services is still not ideal. As stipulated in the relevant guidelines, emergency departments should ‘only take over the legal responsibility for a s136 detention if they have the staff and space to ensure the wellbeing of the patient and ensure they do not abscond’. As this is often not the case, each patient must be guarded by two police officers. According to Inspector Brown, in extreme cases this can lead to about two-thirds of police services being bound to A&E departments and thus unable to be on duty elsewhere.
Inspector Brown also talks about the importance of upholding human rights in policing mental health-related incidents, particularly human dignity, the right to the integrity of person, and the right to liberty. He illustrates this by showing the difficulties that can arise in the search for a place where detained persons can receive psychiatric care. Because the number of inpatient psychiatric beds has been reduced significantly in the last five to ten years, a bed is often not available at the right time for persons that need one due to the lack of community care alternatives. Both the MHA and the PACE allow the police to detain someone for no more than 24 hours. Holding someone longer constitutes a violation of the right to liberty (Article 5 of the European Convention on Human Rights [ECHR]), so a place must be found within this timeframe. However, it can take six to nine days to find an inpatient psychiatric bed for a mentally ill individual. These circumstances can present police officers with a real dilemma if a person’s release does not seem justifiable because they are acutely suicidal or represent a danger to others. According to Inspector Brown, a choice must then be made whether to unlawfully detain a person and keep them safe or whether to release them at the risk of them committing suicide.
For these reasons, Inspector Brown suggests that a discussion take place about the role of health services in deaths following police contact. He recommends the work of Dr David Baker, who has investigated the issue of deaths after police contact from a health care perspective and emphasises the importance of not treating these incidents as individual cases but rather of contextualising them in annual trends and patterns. Although Inspector Brown is critical of the police’s role as a de facto health care service, he acknowledges that they must be able to respond appropriately to vulnerable persons in any case, even after mistakes have been made by other state agencies. Inspector Brown points out that even where there are inquiries into incidents that have had health care elements, the reputation of policing can still be damaged. He illustrates this with the case on which the European Court of Human Rights judgement MS v the United Kingdom was based. The Court ruled that the mentally ill applicant’s detention which lasted more than 72 hours violated his human dignity and constituted a degrading punishment in the sense of Article 3 of the ECHR. This human rights violation resulted from the lack of psychiatric treatment during this time which, in fact, was due to the inability to admit the applicant to an NHS unit. Although the Court stated that there was ‘real concern on the part of the police to see the applicant transferred to a therapeutic setting as quickly as could be arranged’, media coverage implied that the police were to blame.
Inspector Brown concludes his talk by underlining the importance of a fundamental understanding of the law of both the police and mental health services. He further stresses that the police should not be relied upon to be a de facto health care provider. Inspector Brown calls for a discussion about the roles of the police and health services in managing mentally vulnerable individuals, considering the serious and sometimes fatal consequences that the overreliance on the police as a mental health provider can have. Being subjected to the criminal justice system stigmatises, criminalises and often frightens vulnerable persons. His thought-provoking talk has raised awareness of some of the most challenging issues in the intersection of policing and mental health, and it has raised important questions on how we, as a society, should respond to mentally vulnerable individuals. For further reading on the topic, visit Inspector Brown’s blog.